Chapter 23: NATIONAL REPORT FOR THE NETHERLANDS
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This chapter describes the treatment of executory contracts under Dutch corporate insolvency law and the main factors behind recent reforms in the area. Dutch insolvency law takes a liberal approach toward insolvency clauses in general. This is a result of the principle of integral continuation of contracts during insolvency and the fact that the Dutch Insolvency Act lacks specific general rules on this point. Parties to long-term contracts are to a large extent free to decide beforehand what their positions will be if one of them becomes insolvent. Due to the continuation principle, insolvency clauses, save exceptions, can be invoked in insolvency proceedings. The primacy of pre-insolvency party autonomy within the context of insolvency is, however, not absolute. From case law it follows that insolvency clauses may be curtailed, although this mainly depends on open norms such as equality of creditors, the principle of fixation, good faith and fair dealing and public moral rules, the latter being aimed at preserving the insolvent estate’s assets and preventing against infringements on the pari passu rule. Transaction avoidance provides a substantive norm. It is however unclear to what extend these instruments invalidate insolvency clauses. With reference to options for reform as to insolvency clauses, the chapter concludes that a more critical approach seems desirable.

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