Netherlands updates

Arbitration & ADR

Contributed by Freshfields Bruckhaus Deringer LLP
New model BIT: negotiations to commence soon
  • Netherlands
  • 13 June 2019

In 2018 the government adopted its new model bilateral investment treaty (BIT). Following this adoption, the government has now obtained the authorisation required to start the renegotiations with eight non-EU countries and conclude new BITs with two others. The government has made clear that the new model BIT is intended to serve as an opening offer that sets the scene for the negotiations. However, as each negotiation will have its own dynamic, it is difficult to predict what the new Dutch BITs will look like.

The future is now (or is it?): net-ARB, Inc online award not recognised due to lack of due process
  • Netherlands
  • 02 May 2019

The Amsterdam Court of Appeal recently had to decide on an application for recognition and enforcement of an online arbitral award regarding a loan in bitcoins. To date, this has been a subject that the Dutch courts have seldom encountered. Notably, the Amsterdam Court of Appeal took a critical approach in what may be considered a test case for recognition and enforcement of online arbitral awards in the Netherlands.

NAI introduces enhanced transparency policy
  • Netherlands
  • 14 February 2019

The Netherlands Arbitration Institute (NAI) recently introduced a new transparency policy, which aims to enhance the transparency of arbitral proceedings without harming their confidential nature. This is a promising step by the NAI, which will hopefully contribute to a more cost-effective, efficient and credible arbitration practice in the Netherlands.

New Court of Arbitration for Art established
  • Netherlands
  • 07 February 2019

In June 2018 a new arbitration court specialised in art-related disputes was launched in The Hague. The court, which offers an attractive and efficient dispute resolution mechanism for cross-border art-related disputes, was founded by the Netherlands Arbitration Institute (NAI) in collaboration with Authentication in Art. According to the NAI's website, it has now started accepting arbitrator and mediator applications for the Court of Arbitration for Art.

New model BIT goes beyond consultation draft and introduces sweeping changes for investors
  • Netherlands
  • 22 November 2018

The government recently adopted its new model bilateral investment treaty (BIT). The proposed changes, which are likely to limit investor protection, have now been incorporated, together with additional important amendments. The model BIT reflects two government objectives: a sustainable investment policy and a better balance between the rights and obligations of both states and investors.


Aviation

Contributed by AKD The Netherlands
Airport of destination no safe haven for claims under Montreal Convention
  • Netherlands
  • 07 August 2019

The Amsterdam Court of Appeal recently denied jurisdiction against an airline and its ground-handling agent in a case concerning a claim for loss of cargo from the agent's premises at Amsterdam Airport Schiphol. The judgment is relevant for claimants seeking to bring a case against air carriers and their ground-handling agents before the court of the place of destination under Article 33 of the Montreal Convention 1999.


Company & Commercial

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


Employment & Benefits

Dutch dismissal law in a nutshell
  • Netherlands
  • 13 March 2019

Dutch dismissal law contains certain distinguishing elements which make it unique within Europe. For example, it is based on a dual system, which includes a preventive dismissal assessment. Employers that intend to dismiss employees must be mindful of these unique features. Otherwise, the dismissal attempt may fail, resulting in the nominated employee remaining in the company's employment or the employer paying a higher severance payment to the employee.

Employers beware! Right of access to personnel files under GDPR
  • Netherlands
  • 19 December 2018

For most employers, the threat of high fines has been sufficient to encourage them to try and comply with the EU General Data Protection Regulation (GDPR). Now, more than six months after the GDPR's introduction, the question has arisen as to whether employers' concerns in this regard were justified. Recent case law and an incremental penalty imposed by the Dutch Data Protection Authority show that employers should be taking the GDPR seriously when it comes to personnel files.

Is this the end of traditional employment contracts?
  • Netherlands
  • 10 October 2018

According to the European Commission, the growth of flexible contracts in the Dutch labour market, as well as the inequality between flexible contracts and employment contracts for indefinite periods, is a problem. As such, one of the commission's recommendations for the Dutch government is to tackle the barriers to entering into traditional contracts or employment contracts for indefinite periods and facilitate the transition from definite contracts to employment contracts for indefinite periods.


Energy & Natural Resources

Contributed by Stek Advocaten BV
NVB introduces model deed to promote financing of rooftop solar projects
  • Netherlands
  • 19 August 2019

In September 2018 the Dutch Banking Association introduced a standard form for a deed of right of superficies (the model deed). The model deed was introduced to promote the financing of solar panels on companies' roofs in the Netherlands and has been well received among market participants. This article examines the background, use and objectives of the model deed.

New act aims to minimise gas production from Groningen Field
  • Netherlands
  • 11 March 2019

The government aims to terminate the gas production of the large-scale Groningen Field as soon as possible. The reason for this decision is the Zeerijp earthquake of January 2018. However, immediately reducing production from the Groningen Field to a much lower level would lead to safety and security risks in the Netherlands and neighbouring countries. As such, the next few years will be used to decide on a safe production level and simultaneously safeguard security of supply.

Broadening subsidy scheme for renewable energy: from SDE+ to SDE++
  • Netherlands
  • 14 January 2019

The minister of economic affairs and climate policy recently announced that the scope of the main subsidy scheme for renewable energy in the Netherlands, the Stimulation of Sustainable Energy Production, will be broadened. Under the new scheme, various technologies will no longer compete on the basis of amounts of renewable energy produced, but rather on the amounts of carbon dioxide and other greenhouse gases that have been avoided.

Prohibition on coal-fired power plants
  • Netherlands
  • 11 June 2018

In the new government's coalition agreement, the ruling parties promised to phase out coal-fired power plants by 2030. Thus, the minister of economic affairs and climate policy has been negotiating the closure of the five remaining coal-fired power plants in the Netherlands, and the government recently published a draft bill effecting this closure for consultation. Based on the initial public reactions, it appears that although exiting coal may be relatively easy, it may be naive to think that it can be done for free.

Towards a climate and energy plan: will Dutch polder model succeed?
  • Netherlands
  • 09 April 2018

The government recently finalised its objectives and the negotiation format for the national climate agreement. This will be an agreement in principle, which will form the basis of the integrated national energy and climate plan pursuant to the draft regulation on the governance of the Energy Union. The state and various stakeholders will negotiate and conclude the climate agreement, for which the government recently finalised its objectives and the negotiation format.