The Enterprise Chamber of the Amsterdam Court of Appeal (de Ondernemingskamer) is a special chamber. It has jurisdiction in enquiry proceedings (enquêteverzoeken), proceedings related to the annual accounts (jaarrekeningprocedure) and buyout proceedings (uitkoopprocedure), as well as in other specific corporate law matters. The Enterprise Chamber of Amsterdam furthermore has jurisdiction in various matters with a social economic impact, including the proceedings relating to advisory rights of works councils, school participation councils and pension fund participants councils. The Enterprise Chamber consist of three judges and two counsels, i.e. experts in the field that are non-judges. Our Dutch corporate lawyer in the Netherlands, explains the Dutch procedure.
Enquiry proceedings by a Dutch corporate lawyer
The enquiry proceedings by a Dutch corporate lawyer at the Enterprise Chamber of the Amsterdam Court of Appeal are aimed at an investigation, i.e. an enquiry, into the management of the company and the course of its affairs, and provides for interim measures to prevent any (further) damage to the company. The purpose of the enquiry proceedings includes the reorganization and restoration of healthy relationships, opening up of affairs and establishing responsibility for possible mismanagement.
Interim relief measures under Dutch law
Interim measures under Dutch law may be requested and imposed with the opening of the proceedings at the Enterprise Chamber of the Amsterdam Court of Appeal. These could have far-reaching consequences and include the suspension of (supervisory) directors, the temporary appointment of a (supervisory) director (possibly with decisive voting rights), the temporary transfer of shares, the suspension of voting rights and the prohibition for the general meeting to vote on certain subjects.
Shareholder’s activism in the Netherlands
First phase; investigation
Such an investigation at the Enterprise Chamber of the Amsterdam Court of Appeal may be requested, amongst others, by a shareholder holding at least 10% of the issued and outstanding share capital and by the company itself, i.e. by the management board, supervisory board or receiver in bankruptcy.
The Enterprise Chamber of Amsterdam will order an investigation if it finds that there are valid grounds to question the correct management of the company or conduct of its affairs. This criterion does not only apply to the company’s management; a deadlock between shareholders or certain actions by one or more shareholders can also give rise to an investigation.
The Enterprise Chamber of Amsterdam will appoint one or more independent experts to investigate the management of the company and its affairs. After the investigation, the experts submit a report to the Enterprise Chamber with their findings.
Second phase; mismanagement
In case the report of the independent expert shows mismanagement, one can request the Enterprise Chamber to award definitive measures in new and further proceedings.The Enterprise Chamber of the Amsterdam Court of Appeal assesses whether or not there is mismanagement, which judgment its will base on the expert report and the facts and circumstances of the proceedings. No judgment is given on any liability for damages incurred as a result of the mismanagement. Such may be sought in separate proceedings, in which the decision of the Enterprise Chamber will be a starting point.
Final measures in enquiry proceedings under Dutch law
The final measures in enquiry proceedings under Dutch law that may be requested are limited to the following:
- suspension or annulment of a decision by a decision-making body of the company;
- suspension or dismissal of one or more directors or supervisory directors;
- temporary appointment of one or more directors or supervisory directors;
- temporary deviation from the articles of association;
- temporary transfer of shares; or
- dissolution of the company.
Dutch law firm for corporate litigation in the Netherlands
The main advantages of an enquiry procedure with the Enterprise Chamber of the Amterdam Court of Appeal are the highly specialized judges and expert members, and the possibility of requesting interim measures with far-reaching consequences. In disputes between shareholders, an inquiry procedure may often force a solution, especially in cases where swift and decisive action is required.
Dutch corporate lawyer spezialized in corporate proceedings
Our team of Dutch corporate lawyers in the Netherlands (Amsterdam) have a strong reputation in (international and domestic) corporate proceedings under Dutch law. Would you like to obtain advice on initiating a procedure before the Enterprise Chamber of the Amsterdam Court of Appeal , the annulment or enforcement of an award, or would you like to know more about interim measures under Dutch law? Please contact our Dutch corporate lawyer specialized in corporate proceedings, or one of our other Dutch lawyers in Amsterdam.