Netherlands updates

Arbitration & ADR

Contributed by Freshfields Bruckhaus Deringer LLP
Arbitral award may be enforced after annulment at seat
  • Netherlands
  • February 22 2018

The Supreme Court recently ruled that a Dutch court may enforce an annulled arbitral award if, among other things, the local annulment decision is based on grounds other than those set out in Article V(1)(a)-(d) of the New York Convention and which are not internationally recognised, or the annulment decision is irreconcilable with Dutch private international law. This judgment offers important guidance as to the Dutch courts' discretion to enforce annulled awards.

Will ruling denying recognition of Yukos bankruptcy affect setting aside of $50 billion UNCITRAL award?
  • Netherlands
  • September 21 2017

The Amsterdam Court of Appeals recently ruled that the Russian liquidation order regarding OAO Yukos Oil Company is contrary to Dutch public order and therefore null and void. An interesting question is whether the judgment will have a bearing in the appeal of the annulment proceedings concerning the $50 billion Energy Charter Treaty arbitration case between former Yukos shareholders and Russia, which is pending before The Hague Court of Appeal.

Swatch/Tiffany setting-aside proceedings: court rules restraint must be exercised in reviewing arbitral decisions
  • Netherlands
  • June 01 2017

The Amsterdam Court of Appeals recently annulled a 2013 Amsterdam District Court decision to set aside a $450 million arbitral award in proceedings between watchmaker Swatch and jeweller Tiffany. The main question for the court of appeals was whether the district court had been correct in holding that the tribunal had exceeded its authority. The judgment, which may be subjected to Supreme Court review, confirms the court's pro-arbitration and enforcement approach.

Supreme Court rules recognition of international arbitral awards not subject to appeal
  • Netherlands
  • May 04 2017

In a recent decision, the Supreme Court rigorously applied Article III of the New York Convention and ruled that a decision recognising an international arbitral award is no more subject to appeal than a decision recognising a domestic arbitral award. Further, the court rejected the plea that such an appeal should be available under Article 6 of the European Convention on Human Rights.

Company & Commercial

Distributions of profits to shareholders under corporate law
  • Netherlands
  • January 29 2018

A Dutch private limited company can make distributions of profits to its shareholders if the company's capital exceeds the aggregate of the reserves that must be maintained pursuant to the law and the company's articles of association. If a company cannot pay its due and payable debts after a distribution, the members of the board of directors can be held liable to for any resulting shortfall and the company's bankruptcy trustee can claim and recover the amount wrongfully paid from each shareholder.

Energy & Natural Resources

Contributed by Stek Advocaten BV
Renewable energy subsidies renewed
  • Netherlands
  • March 12 2018

The minister of economic affairs and climate recently announced that the new government has reserved €12 billion to grant subsidies in 2018 for the production of renewable energy under the Renewable Energy Grant Scheme. The subsidies, which will be made available to applicants in two €6 billion tranches, aim to accelerate the development and use of sustainable energy production technologies.

New government's ambitious climate and energy initiatives
  • Netherlands
  • January 15 2018

The new government's coalition agreement contains an ambitious paragraph on climate and energy, which observes that the European Union's aim to reduce greenhouse gas emissions by 40% (compared with 1990 levels) by 2030 will be insufficient to meet the Paris Agreement target. Therefore, the new government has set the bar higher, introducing measures to prepare the Netherlands for a 49% reduction in greenhouse gas emissions by 2030.

Geothermal financing developments
  • Netherlands
  • September 25 2017

The number of geothermal energy projects in the Netherlands is rapidly increasing and there are growing calls for the existing legal framework to be reshaped in order to meet the specific needs of such projects and remove bottlenecks. In light of geothermal energy's potential in the much-desired energy transition, it is hoped that these growing pains can be quickly overcome and that the industry can continue to develop itself as a standalone professional industry.

Corporate power purchase agreements in Dutch electricity market
  • Netherlands
  • July 10 2017

An important global trend is the rapidly increasing number of large industrial and corporate energy consumers and buyers wanting to purchase renewable electricity directly from renewable electricity producers on the basis of long-term corporate power purchase agreements. This has also emerged as a trend in the Dutch energy market, especially in the context of the so-called 'energy transition' initiated by the government and the Energy Accord signed by the government and market players.

DSO unbundling – where are we now?
  • Netherlands
  • May 29 2017

The implementation of the Dutch form of ownership regulation for distribution system operators (DSOs) has paralysed a large part of the energy sector for many years and has yet to be completed. The legislature has decided that DSOs can form part of a larger corporate infrastructure group. However, the scope and extent of the permissible infrastructure-related activities within a network group have come under increased scrutiny and are the subject of debate.

Insolvency & Restructuring

Amsterdam Court of Appeals denies recognition of Yukos bankruptcy based on public order exemption
  • Netherlands
  • September 15 2017

The Amsterdam Court of Appeals recently ruled that the 2006 Russian liquidation order regarding OAO Yukos Oil Company is contrary to Dutch public order and therefore null and void. The court's reasoning was largely based on a 2014 European Court of Human Rights judgment following a complaint lodged against Russia by the former Yukos shareholders with regard to Yukos's liquidation.

Pre-insolvency procedures: Dutch practice and legislative catch-up
  • Netherlands
  • May 27 2016

Dutch law does not yet have a pre-insolvency composition procedure. However, draft legislation is on the table to implement a Dutch out-of-court composition – a process similar to the UK scheme, with some US Chapter 11 elements. Draft legislation has also been prepared to implement a formal procedure similar to the English pre-pack administration.

Intellectual Property

Contributed by AKD NV
Supreme Court rules on use and functions of trademark
  • Netherlands
  • February 12 2018

The Supreme Court has upheld an opposition against the refilling of a gas tank bearing the trademark PRIMAGAZ with gas from a third party. The Supreme Court held that where a party uses another's branded packaging for its own goods, it is the same as using the other party's trademark. Finding that the act of filling the tank constituted use of the mark in the course of trade, the court held that the third party had used the PRIMAGAZ mark for commercial gain.

Supreme Court sets standards for direct and indirect infringement of Swiss-type claims
  • Netherlands
  • December 04 2017

The Supreme Court recently rendered a landmark judgment on second medical use claims – more specifically, Swiss-type claims – which have been the subject of significant legal uncertainty throughout Europe. Although the judgment provides welcome clarification on Swiss-type claims with regard to the possibility of indirect infringement and the standards for direct and indirect infringement, some questions still remain.

Scope of protection of descriptive trade names
  • Netherlands
  • October 23 2017

The Hague Court of Appeal recently rendered its judgment in a case in which the claimant was seeking protection for its trade name, Parfumswinkel, against a competing online perfume shop acting under the trade name Parfumswebwinkel. Although the outcome of this case is acceptable, the reasoning behind it is not necessarily correct. The main issue in the proceedings was whether trade name protection should be granted to trade names that are purely descriptive and lack inherent distinctive character.

District court refers questions on sale of second-hand e-books to ECJ
  • Netherlands
  • August 21 2017

Since the launch of its online second-hand e-book service in 2014, Tom Kabinet's activities have been opposed by Dutch publishers, which have unsuccessfully initiated interim injunction proceedings against the company with regard to e-books that were initially purchased and downloaded lawfully (with the copyright owner's consent). At present, proceedings on the merits of the case are pending before The Hague District Court, which recently decided to refer questions to the European Court of Justice.

Heks'nkaas: an appetising copyright matter
  • Netherlands
  • June 26 2017

The Arnhem-Leeuwarden Appellate Court recently referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice. The case that led to the court's referral addressed the question of whether a certain taste can be protected under copyright law. The particular taste for which protection was sought was a popular cheese product.