A bright future for the Dutch restructuring practice
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In this article, we focus on the main developments in restructuring and insolvency in the Netherlands. First, we discuss the use of the suspension of payments to efficiently restructure large amounts of unsecured debt. Second, we address the potential revival of pre-packaged asset sales out of bankruptcy. Finally, we discuss the WHOA and analyse several recent cases that illustrate that it is evolving into a mature restructuring instrument suitable for large international restructurings.
- Suspension of payments to restructure large amounts of unsecured debt
- Developments in relation to pre-packaged asset sales
- WHOA as an excellent instrument for large international restructurings
Referenced in this article
- Suspension of payments
- TUPE Directive
- Fitness Centres
- Royal IHC
- Diebold Nixdorf
The last couple of years have been important for the restructuring and insolvency practice in the Netherlands. The amount of distressed activity clearly picked up throughout 2022 with an overly active fourth quarter. While the initial period after the outbreak of the covid-19 pandemic was relatively calm given generous government support, most of the government support measures were scaled down in 2022. At the same time, supply chain disruptions still affected the markets in the aftermath of the outbreak. Further, interest rates were raised making funding less accessible. Consequently, more companies struggled to meet their financial obligations and resorted to different forms of restructuring options.
We begin this article by providing a short description of the types of insolvency proceedings available under Dutch law. We then discuss the three main developments in the Dutch restructuring practice – those being (1) the use of suspension of payments to restructure large amounts of unsecured debt, (2) the revival of the pre-pack as a restructuring tool and (3) the development of the Act on Court Confirmation of Extrajudicial Restructuring Plans (WHOA) into a mature restructuring tool, suitable for large international restructurings.
Insolvency proceedings available under Dutch law
Dutch law provides for three types of insolvency proceedings, each with their own objectives: bankruptcy proceedings, suspension of payments and restructuring plan proceedings under the WHOA.
Bankruptcy proceedings are often described as a judicial attachment over all of the debtor’s assets for the benefit of the joint creditors of the debtor. They may be initiated by a creditor or the debtor. As a result of the opening of bankruptcy proceedings, the debtor loses its power to dispose of its assets.
The court appoints a bankruptcy trustee, who is tasked with the administration and liquidation of the debtor’s assets and the distribution of the proceeds to the creditors according to the ranking of their claims. While not required by law, in practice the courts appoint a lawyer as a bankruptcy trustee in nearly all bankruptcies. The bankruptcy trustee is supervised by a supervisory judge and aims to dispose of the assets in a manner that maximises proceeds. This could be a piecemeal sale of the assets or a sale of the business as a going concern.
A bankruptcy may be preceded by a ‘pre-pack’ during which a sale of the debtor’s assets is prepared under the supervision of a prospective bankruptcy trustee and a prospective supervisory judge. The transaction is signed and closed after the opening of formal bankruptcy proceedings.
Suspension of payments
Suspension of payments aims to prevent the need to open bankruptcy proceedings in respect of the debtor by granting the debtor time to restructure. The debtor is temporarily given breathing space to resolve its financial problems. In most cases, the debtor attempts to do so by offering a composition plan to its creditors. The creditors vote on the plan and the plan is adopted if the required majorities vote in favour of the plan. If certain requirements are met, it is subsequently approved by the court.
The debtor can only dispose of its assets by acting jointly with an administrator, who is appointed by the court. If, during the proceedings, it is foreseeable that the proceedings will not result in the debtor being able to satisfy its debts again as they fall due, the proceedings will be withdrawn, and bankruptcy proceedings will be opened in respect of the debtor. This is the outcome in the vast majority of cases in which the debtor fails to have a composition plan sanctioned by the court. 
Restructuring plan proceedings under the WHOA
On 1 January 2021, the restructuring and insolvency landscape changed dramatically in the Netherlands with the introduction of a new form of insolvency proceedings: restructuring plan proceedings under the WHOA. Under the WHOA, a debtor may offer a composition plan to its creditors and shareholders. If certain requirements are met, the debtor may request the court to approve the plan. If approved, the plan is binding on all affected creditors and shareholders, including absent, dissenting and abstaining creditors and shareholders.
While the WHOA is aimed at debtors with a viable operational business but an excessively heavy debt burden, it may also be used to implement a controlled wind-down, provided that this leads to a higher recovery for the creditors than a liquidation in bankruptcy. WHOA proceedings are debtor-in-possession (DIP) proceedings: the debtor may continue trading as a going concern, and it is not limited in its power to dispose of its assets.
As a starting point, the debtor leads the drafting and offering of the restructuring plan under the WHOA; however, creditors, shareholders or a works council may request the appointment of a restructuring expert if they are not satisfied with the debtor’s action in relation to the restructuring plan. If a restructuring expert is appointed, the expert will lead the drafting and offering of the restructuring plan, while the debtor will remain in control of the business.
The debtor may choose between public or private proceedings. The hearings of public proceedings are open to the public, and the court orders are published. In contrast, the hearings of private proceedings are behind closed chambers, and the court orders are published after a significant delay and in an anonymised form.
Suspension of payments to restructure large unsecured debt
The first notable development in recent years relates to the suspension of payments. Suspension of payments and WHOA proceedings share the same primary objective of preventing unnecessary bankruptcies by allowing the debtor to offer a composition plan to its creditors.
The WHOA has several advantages over suspension of payments, the main one being that a restructuring plan under the WHOA is binding on secured creditors, preferred creditors and shareholders. This is not the case for a restructuring plan under suspension of payments, which is only binding on unsecured creditors. This is a major disadvantage of suspension of payments, given that secured and preferred creditors are often key stakeholders in a restructuring.
The above raises the question of whether suspension of payments is useful in practice. The answer appears to be affirmative albeit in fairly specific circumstances. First, suspension of payments has been successfully used in bond debt restructuring where the issued bonds were unsecured. Second, there has been a recent trend of successful use of suspension of payments.
Focusing on this recent trend, there are two cases that show that a restructuring plan offered during a suspension of payments can be a useful tool to efficiently restructure large amounts of unsecured debt held by a large number of creditors: the restructuring of Steinhoff International Holdings NV (Steinhoff) and the controlled wind-down of Dutch bank DSB Bank NV (DSB).
In 2017, Steinhoff ran into financial distress after an accounting scandal that led to a large number of litigation claims, primarily from (former) shareholders. Steinhoff used a restructuring plan offered under suspension of payments to settle its debts to the claimants. The plan was sanctioned in September 2021. The total amount of the restructured debt amounted to approximately €14 billion, which was owed to approximately 66,000 creditors.
DSB ran into financial problems in 2009, after accusations of financial malpractices had led to a bank run during the global financial crisis. DSB was declared bankrupt on 19 October 2009, and its bankruptcy ended on 17 December 2021 with all its verifiable claims being satisfied in full. This uncommon outcome was the result of external factors such as low interest rates and, more importantly, the fact that claims relating to interest over the period after the opening of bankruptcy proceedings cannot be submitted for verification.
After the verifiable claims were satisfied in full, a surplus of approximately €669 million remained. This surplus was to be distributed among the 283,000 creditors with interests claims that could not be verified in the bankruptcy. DSB petitioned to use suspension of payments for a controlled wind down of its business and distribution of the surplus from the preceding bankruptcy to all creditors in accordance with a restructuring plan. The plan was adopted by the required majority of its creditors and sanctioned by the court on 25 May 2022.
The reason that both Steinhoff and DSB opted for suspension of payments is that the Dutch Bankruptcy Act (DBA) contains various provisions facilitating an efficient process for suspension of payments in cases involving more than 5,000 creditors. The provisions are commonly referred to as the ‘Brandaris scheme’, as they were introduced in 1962 to facilitate the suspension of payments of NV Assurantie Maatschappij Brandaris, an insurance company with more than 200,000 creditors. The Brandaris scheme had not been used for approximately 60 years until the Steinhoff case in 2021.
The most important measures provided for under the Brandaris scheme are (1) an exemption from the obligation to prepare a complete list of creditors and (2) the appointment of a committee of representation. These two measures must be ordered jointly. The appointment of a committee of representation, which must comprise at least nine members, is a far-reaching measure. The committee obtains the exclusive right to vote on the restructuring plan, whereas individual creditors lose their voting rights. In return, a higher threshold applies for the adoption of a restructuring plan: instead of the usual simple majority, three-quarters of the committee’s members must vote in favour of a plan. A committee of representation was appointed in both Steinhoff and DSB.
Steinhoff and DSB illustrate that suspension of payments is a useful insolvency proceeding offering a bespoke solution in certain situations. As a result of the Brandaris scheme, it offers a unique tool to restructure large amounts of unsecured debt held by a large number of creditors. The introduction of the WHOA on 1 January 2021 has not altered this fact.
Developments in relation to the pre-pack
Another significant development in the Dutch restructuring practice relates to the pre-pack. In practice, the pre-pack was rarely applied after the ruling of the European Court of Justice (ECJ) in Estro in 2017: the ECJ ruled that employee protection under the EU Directive on Transfers of Undertakings (the TUPE Directive) applies in the case of a pre-pack; however, its recent decision in Heiploeg appears to have paved the way for a comeback.
The Dutch pre-pack practice lacks a basis in formal legislation, nor is it governed by administrative regulations: the tool was developed by the restructuring practice. Its main objective is to allow the debtor to prepare a transaction without the disruptive effects of opening bankruptcy proceedings, thereby preserving value for the creditors. The process is as follows:
- A debtor in financial distress requests the court to inform him or her of who would be appointed as the bankruptcy trustee and the supervisory judge in bankruptcy proceedings if proceedings were to be opened. While the bankruptcy trustee and the supervisory judge are not formally appointed, they act as a prospective bankruptcy trustee and a prospective supervisory judge.
- Under the supervision of the prospective bankruptcy trustee and the prospective supervisory judge, the debtor prepares a transaction by means of which its business is sold, in part or as a whole.
- The transaction is signed and closed by the bankruptcy trustee and approved by the supervisory judge after bankruptcy proceedings have been opened.
In Estro, the ECJ was requested to provide a preliminary ruling on whether employees enjoy protection under the TUPE Directive in a pre-pack transaction. An affirmative answer would mean that, as a result of the transfer of the business, all employees’ rights transfer to the purchaser by operation of law. This is the general rule that applies in transfers outside bankruptcy.
However, article 5 of the TUPE Directive contains the ‘bankruptcy exception’, providing that the TUPE rules do not apply if:
- the transferor is engaged in bankruptcy (or similar) insolvency proceedings;
- the proceedings were instituted to liquidate the transferor’s assets; and
- the transfer is supervised by a competent public authority.
The ECJ ruled that the Dutch pre-pack did not meet the requirements under points (2) and (3). Regarding point (2), it held that the pre-pack cannot be considered a procedure implemented with the aim of liquidating the transferor’s assets. According to the ECJ, the pre-pack aims to preserve and continue the company.
Regarding point (3), the ECJ considered the prospective bankruptcy trustee and the prospective supervisory judge to have no formal powers under Dutch law; therefore, no supervision by a competent public authority had taken place. The fact that the transaction was signed and closed after the opening of bankruptcy proceedings did not change that, considering that the prospective bankruptcy trustee and prospective supervisory judge had effectively already agreed to the sale prior to the opening of the proceedings. The ECJ concluded that the bankruptcy exception was not applicable to a transaction prepared by a pre-pack.
However, the ECJ’s decision in Heiploeg in 2022 shed new light on the Dutch pre-pack. Heiploeg faced financial distress as a result of severe losses in 2011 and 2012 and a fine of €27 million imposed by the European Commission. Heiploeg decided to use a pre-pack procedure to sell its assets to a buyer. In the transaction that was concluded, two-thirds of Heiploeg’s employees were offered a position by the purchaser but with less favourable terms and conditions. A Dutch trade union opposed this and initiated court proceedings. The courts of first and second instance held that the TUPE rules did not apply, and the matter was brought before the Dutch Supreme Court.
The Dutch Supreme Court decided to ask preliminary questions to the ECJ. It was clear from its decision referring the matter to the ECJ that the Dutch Supreme Court had serious doubts about the ECJ’s decision in Estro. It suggested that, in the preliminary ruling procedure leading to Estro, the ECJ may have been incorrectly informed about the pre-pack procedure in the Netherlands. In particular, it suggested that the ECJ may not have been properly informed of the fact that, given the transaction was entered into after the opening of bankruptcy proceedings, the objectives and modalities of the pre-pack phase are determined by the objectives and modalities of the eventual bankruptcy proceedings. The same applies to the tasks and responsibilities of the appointed officials. The Dutch Supreme Court also pointed to factual differences between Estro and Heiploeg, the most important difference being that bankruptcy was inevitable in Heiploeg, whereas the insolvency scenario in Estro had an air of having been somewhat artificial.
The ECJ considered the circumstances put forward by the Dutch Supreme Court to be relevant and held that, in those circumstances, the requirements for application of the bankruptcy exception can be met. The decision provides a solid basis for a comeback of the pre-pack and was hailed with applause by many practitioners. However, the ECJ gave a clear message to the Dutch legislator: for the bankruptcy exception to apply, the pre-pack procedure must be governed by statutory or regulatory provisions. After the ECJ referred Heiploeg back to the Dutch Supreme Court, the lack of statutory or regulatory provisions governing the pre-pack was reason for the Dutch Supreme Court to conclude that the bankruptcy exception does not apply in that case.
Before the ECJ’s decision in Estro, the Dutch legislator had already been preparing a draft bill containing a codification of the pre-pack in the DBA: the Act on the Continuity of Enterprises I (WCO I). The legislative process was brought to a halt by the ECJ’s decision in Estro. Although it would have made sense to restart the process, it is speculated that negative publicity around the pre-pack has made it politically infeasible to enact the WCO I without amending it to provide for more protection of employees’ rights. The future of the pre-pack therefore remains uncertain.
Developments in relation to the WHOA
Since its enactment on 1 January 2021, the WHOA has proven to be a valuable restructuring tool. Initially, it was primarily used for restructurings of small and medium-sized enterprises (SME). The successful application of the WHOA to restructurings of SMEs was a remarkable and positive development for the Dutch restructuring practice. However, since the end of 2021, there has been a noticeable shift, and larger corporates are using the WHOA as well. This section discusses five of the most noteworthy cases to date.
The first case in which the WHOA was used to restructure a non-SME group of companies was the restructuring of a large chain of fitness centres (Fitness Centres). This case shows that the WHOA is fit for the implementation of far-reaching amendments to finance documentation that may be crammed down on a dissenting lender. Strictly speaking, the restructuring involved a ‘cram up’ of the secured super senior lender and the secured senior lender by the unsecured preferential creditor (ie, the Dutch tax authority).
The restructuring plan, which was offered by a restructuring expert appointed in respect of the debtor, contained amendments to a facility agreement in the form of an extension of the maturity date, a covenant holiday, amendments of financial covenants and an amendment of the applicable interest rate. The court ruled that such amendments to the finance documents fall within the scope of the changes to creditors’ rights that may be imposed on them within the scope of the WHOA. It held that all other requirements for sanctioning were also met, and it sanctioned the plan.
The procedural elements of this WHOA proceeding are also interesting. Under the WHOA, the debtor or restructuring expert (if appointed) may request the court to rule in an interim decision on aspects that are relevant to the sanctioning of the restructuring plan. This allows the debtor or restructuring expert to obtain deal certainty at an early stage (as it provides for legal certainty and allows the debtor of the restructuring to further change the restructuring plan (if needed) to meet statutory requirements) before putting the plan to a vote and requesting the court to sanction it.
In Fitness Centres, the appointed restructuring expert made use of this possibility and requested multiple interim decisions. This does not appear to have become common practice: there have not been many interim decisions in the cases discussed below, possibly because the debtors in those cases expected more favourable outcomes by forcing the court to hand down an all-or-nothing decision on the sanctioning of their restructuring plans.
The €950 million restructuring of the Royal IHC group (IHC), a supplier of maritime technology and expert craftmanship, sheds an interesting light on the possibility of using a restructuring plan under the WHOA to amend commitments under a senior facilities agreement despite not reaching a consensus. This was the first restructuring under the WHOA involving a syndicate of lenders.
After restructurings in 2018 and 2020, IHC again faced financial distress in 2021. To obtain new (re)financing, it entered into negotiations with its syndicate of secured lenders – comprising a group of nine Dutch and foreign financial institutions – and other stakeholders. As the parties could not reach a consensus on a solution, IHC initiated WHOA proceedings on 2 January 2023. It offered its secured lenders a composition plan that provided for, among other things:
- a divestment through the sale of a well-performing business unit to a third party; and
- a reduction of the total commitments from €950 million to €500 million.
The majority of the secured lenders supported the plan, but two lenders voted against it, and one abstained from voting. The court sanctioned the plan and made decisions on various topics that are highly relevant for the Dutch and the international restructuring practice.
First, the court considered that the WHOA may, in principle, be used to amend commitments under senior facilities agreements and therefore impose an obligation on a lender to continue to make an undrawn facility available to the debtor. Whether that is possible in depends on:
- the extent to which financing obligations materially change; and
- the extent to which changes to the credit documentation can be considered ‘changes to the creditor’s rights’ within the scope of the WHOA.
Another interesting aspect of the court’s decision relates to the ranking of security rights. Under the WHOA, it is not possible to amend the ranking of rights in rem, such as rights of pledge or mortgage; however, the court allowed an amendment of the order of the waterfall under the inter-creditor agreement (ie, an amendment of the order of the ranking of claims of the creditors in the case of an enforcement of the security and payment of proceeds thereof under the inter-creditor agreement). This opens the door for DIP-financing under the WHOA. While priming of liens and super priority of claims is not possible under the WHOA, it is possible to amend the waterfall in the inter-creditor agreement to facilitate rescue financing.
The court used similar reasoning to approve an amendment of the priority of the claims of hedging counterparties under an International Swaps and Derivatives Association Master Agreement. As a starting point, amendments of financial collateral arrangements are not possible under the WHOA; however, the court approved an amendment of the ranking of the claims through an amendment of the inter-creditor agreement, effectively reaching the same result.
The prosecutor general has indicated that he intends to bring the court’s decision in Royal IHC before the Dutch Supreme Court in the general interest of the law. Such an appeal in the general interest of the law is not binding on the parties involved: it merely serves to obtain clarity around questions of law and to safeguard unity in the application of the law by the Dutch courts. Decisions on the basis of the WHOA are not open to ‘ordinary’ appeal.
The prosecutor general has indicated that his appeal is likely to (at least) pertain to (1) the possibility of amending commitments and imposing on a lender an obligation to continue making available to the debtor facilities under a senior facilities agreement; and (2) the possibility of amending the waterfall for the distribution of enforcement proceeds in an inter-creditor agreement.
The prosecutor general has invited interested parties to submit their views in respect of these matters. If the matter is brought before the Dutch Supreme Court, a decision is unlikely to be published before late 2024.
The restructuring of the Vroon Group (Vroon) was the first large international restructuring under the WHOA, the first restructuring under the WHOA with parallel foreign proceedings and the first combination of the Dutch scheme and the English scheme of arrangement (the English scheme). The restructuring of Vroon, a leading shipping and offshore service group headquartered in the Netherlands with activities globally, initially involved close to US$1.5 billion in debt from approximately 20 lenders and approximately 40 bilateral facilities agreements. After an initial financial restructuring, Vroon remained in financial distress and was required to restructure approximately US$876 million in bank debt from close to 15 lenders.
The restructuring entailed a debt-for-equity swap: the restructuring plan contained the write-off of the indebtedness to a sustainable debt level in consideration for equity, and a conversion of the remaining part into a new syndicated facilities agreement. The lenders therefore became the indirect owners of the restructured Vroon through the issuance of depositary receipts for shares in the company. The existing shareholders received approximately 5 per cent of the newly issued depositary receipts. Finally, the restructuring plan provided for the solvent liquidation of a part of Vroon.
The changes to Vroon’s equity structure were implemented using the WHOA. The changes to its debt structure were implemented using the English scheme. The implementation of each plan was made contractually conditional on the other parts being implemented. The restructuring required close and complex coordination in various jurisdictions and alignment between different courts.
As the restructuring plan and the scheme largely deprived the shareholders of their shares, the shareholders voted against and fiercely objected to the plan and the scheme in both the Dutch and English proceedings. This resulted in extensive discussions regarding the valuation of the group and whether the shareholders were ‘in the money’. The restructuring resulted in a major valuation dispute and complex discussions on the application of the ‘absolute priority rule’ under the WHOA. Vroon and its lender group agreed on a distribution of equity – which was based on the midpoint of the reorganisation value of Vroon – applying and respecting the absolute priority rule under the WHOA.
Eventually, both courts decided that the suggested distribution of equity was fair and sanctioned the restructuring plan and the scheme.
The restructuring of Diebold Nixdorf, a US-based multinational specialising in ATMs and payment processing services, is another example of the WHOA being used in parallel with proceedings in another jurisdiction. Diebold Nixdorf’s restructuring was implemented through the Dutch WHOA proceeding and a parallel US Chapter 11 proceeding. The restructuring plan involved a debt reduction of approximately €2.1 billion implemented largely through a debt-for-equity swap.
The WHOA proceeding appears to have been a relatively swift process. The vast majority of financial creditors had already committed themselves to the restructuring by entering into a transaction support agreement before the restructuring plans were formally offered to creditors and shareholders. The implementation of each restructuring plan was subject to the condition of the other being implemented.
To facilitate the process, a worldwide stay in the US Chapter 11 proceeding was combined with a stay under the WHOA in respect of the debtors under the WHOA, many of which were non-Dutch entities. The plans in both jurisdictions were sanctioned.
The most interesting aspect of this restructuring was arguably that the decisions in the WHOA proceeding (ie, the stay under the WHOA and the sanctioning order under the WHOA) were recognised in the United States by means of a court order in the US Chapter 15 proceeding.
The final step in Steinhoff’s lengthy restructuring process was completed using a restructuring plan under the WHOA. The main objective of the WHOA proceeding was a controlled wind-down (ie, the delisting and subsequent liquidation of Steinhoff). Under the plan, Steinhoff’s shares were transferred to a new top holding company (TopCo), the shares of which were held by five independent foundations. The creditors and shareholders received contingent value rights (CVRs) from the TopCo, pursuant to which they were entitled to any remaining proceeds from the controlled liquidation of Steinhoff after all external debt is satisfied. The court sanctioned the restructuring plan. The allocation of the CVRs raised some interesting issues in relation to the requirements for sanctioning the restructuring plan and to the valuation evidence presented by experts.
An aspect that is of particular relevance to this contribution is how the court assumed international jurisdiction. Under the WHOA, a debtor can choose between public or private proceedings. The choice between the two versions of the WHOA proceedings not only affects the public or private nature of the proceedings, but also has implications for international jurisdiction of the Dutch courts and recognition of the WHOA proceedings abroad. In private proceedings, the court has jurisdiction if the restructuring has a sufficient connection with the Netherlands; however, public proceedings are listed in Annex A to the EU Recast Insolvency Regulation. As a result, court orders in public WHOA proceedings enjoy automatic recognition in the European Union. It also means that for the Dutch courts to assume jurisdiction, the debtor must have its centre of main interest (COMI) in the Netherlands.
Steinhoff opted for a public WHOA proceeding. The court assumed jurisdiction on the basis of Steinhoff having its COMI in the Netherlands, even though its link with the Netherlands was relatively weak. Steinhoff, the top holding company, was a Dutch entity, but most of its activities were based in, and most of its business was operated from, South Africa and Germany. A different outcome could therefore also have been possible.
In any event, Steinhoff illustrates that the Netherlands may be a suitable restructuring venue for international groups with Dutch holding companies, even if activities in the Netherlands are limited. It may also provide support for using the WHOA in bond debt restructurings in which an international group of companies has issued bond debt using a Dutch financing entity as the issuer of the bond debt.
The insolvency landscape is ever evolving. The developments discussed in this article are testimony to this statement and have changed the restructuring tools available in the Netherlands for the better. The tried and tested bankruptcy and suspension of payments regimes continue to demonstrate their value, and the developments with respect to the pre-pack reopen the door to its potential revival.
Meanwhile, the WHOA has been picking up speed as a tool for larger restructurings in the Netherlands and abroad after an initial period in which it was predominantly used by SMEs. The WHOA has now proven to be a successful tool for large international restructurings. Its future appears to be bright in the international restructuring landscape.
* The authors would like to thank Joël Lozeman, a former associate in the global restructuring team at Norton Rose Fulbright, for his assistance in writing this article.
 It further provides for the Natural Persons Debt Restructuring Act (WSNP), according to which natural persons repay as much as debt as possible and obtain a ‘clean slate’ after one-and-a-half or three years (depending on the starting date). The WSNP will not be discussed in this article.
 For a more extensive discussion on the Dutch suspension of payments, see Omar Salah, ‘Steinhoff restructuring: The Dutch suspension of payments as an excellent tool for the restructuring of mass litigation claims’, Norton Rose Fulbright (2022), www.nortonrosefulbright.com/en-nl/knowledge/publications/9c340bd2/the-netherlands.
 Also referred to as the ‘Dutch scheme’, as the English scheme of arrangement and US Chapter 11 proceedings served as inspiration.
 For more information on the Act on Court Confirmation of Extrajudicial Restructuring Plans (WHOA), see Koen Durlinger, ‘The Dutch scheme is tested and works’, Norton Rose Fulbright (2021), www.nortonrosefulbright.com/en/knowledge/publications/127628e0/dutch.
 District Court of Amsterdam, 23 September 2021, ECLI:NL:RBAMS:2021:5452 (Steinhoff).
 The sanctioning of the restructuring plan did not mark the end of Steinhoff’s lengthy restructuring process. In 2023, it initiated WHOA proceedings, as discussed in the final section of this article.
 Court of Amsterdam 25 May 2022, Case No. C/13/22/2-S, https://content.dsb.nl/publications/39/2022.05.25%20-%20Publicatie%20Rechtbank%20-%20Homologatiebeschikking.pdf.
 For more information on the WHOA, see Omar Salah, Koen Durlinger and Rik van der Laan, ‘The pre-pack in the Netherlands may very shortly revive’, Norton Rose Fulbright (2022) www.nortonrosefulbright.com/en-us/knowledge/publications/9db069f2/the-netherlands; Koen Durlinger, ‘Looking forward to the revival of the pre-pack In the Netherlands’, Norton Rose Fulbright (22 March 2023), www.nortonrosefulbright.com/en/restructuring-touchpoint/blog/2023/03/looking-forward-to-the-revival-of-the-prepack-in-the-netherlands.
 Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.
 European Court of Justice (ECJ), 28 April 2022, Case No. C-237/20, ECLI:EU:C:2022:321 (Heiploeg).
 ECJ, 22 June 2017, Case No. C-126/16, ECLI:EU:C:2017:489 (Estro).
 Estro was not referred to the ECJ by the Dutch Supreme Court but by a court of first instance.
 District Court of Amsterdam, 3 November 2021, ECLI:NL:RBAMS:2021:6522 (Fitness Centres).
 District Court of Amsterdam, 5 August 2021, ECLI:NL:RBAMS:2021:6519 (Fitness Centres).
 District Court of Rotterdam, 9 March 2023, ECLI:NL:RBROT:2023:2800 (Royal IHC).
 District Court of Zeeland-West-Brabant 26 May 2023, ECLI:NL:RBZWB:2023:5306 (Vroon).
 District Court of Amsterdam, 2 August 2023, ECLI:NL:RBAMS:2023:6160 (Diebold Nixdorf).
 District Court of Amsterdam, 21 June 2023, ECLI:NL:RBAMS:2023:4152 (Steinhoff).
 Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).