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Onmiddellijke voorzieningen en hun externe werking

Conflicten met contractuele verplichtingen van de rechtspersoon
PhD ceremony:Ms A.C. Faber
When:June 18, 2020
Supervisors:prof. mr. J.H.M. (Huub) Willems, prof. dr. H.B. Krans
Where:Academy building RUG
Onmiddellijke voorzieningen en hun externe werking

The Enterprise Chamber may order provisional measures in corporate inquiry proceedings. These are urgent, temporary mandatory measures. By way of provisional measures, the Enterprise Chamber may temporarily forbid a company to comply with a contractual obligation. The company cannot simultaneously comply with both the obligation imposed by such provisional measures and with the contractual obligation. Aspects of this conflict of obligations relating to corporate inquiry law, the law of obligations, procedural law and labour law were investigated.

Under applicable Dutch law, as long as such conflicting provisional measures are in force, the company’s contract partner cannot enforce compliance with the contract. In principle, the other party to the contract has a right to compensation for damage. The provisional measures may then give rise to a financial loss for the company. That loss can be high, for example if compliance with a share transaction is temporarily prohibited in corporate inquiry proceedings on hostile takeovers. If the negative effects of the prohibition outweigh the positive effects, provisional measures have a net negative impact on the company. Such a provision is not appropriate to corporate inquiry proceedings.

In another example of this conflict of obligations, the Enterprise Chamber rules that a director whom it has suspended, is not entitled to remuneration. Research shows that this type of provisional measures is not contrary to labour law. A suspended director is not automatically entitled to compensation for damage if he is aware of, or has influenced or is responsible for the policy of the company which gave rise to the provisional measures that impact on his remuneration.The legislator need not expand the power of the Enterprise Chamber to grant conflicting provisional measures.