Litigation

AkzoNobel announced the sale of 100% of its Specialty Chemicals business to The Carlyle Group and GIC for an enterprise value of EUR 10.1 billion. This transaction creates two focused and high performing businesses – Paints and Coatings, and Specialty Chemicals – as part of its strategy announced in April 2017. The transaction is expected to be completed before the end of 2018. Team: Gaby Smeenk, Arne Grimme, Martin van Olffen, Henk van Ravenhorst, Reinier Kleipool, Janneke van der Kroon, Martijn Snoep, Heather Giannandrea and Thijs Elseman. For more information, read here.

De Brauw has acted for the National Bank of Kazakhstan in summary proceedings and secured the lifting of an attachment order that led to the freezing of EUR 22 billion in cash and securities belonging to the National Fund of Kazakhstan. This case involved issues of state immunity, Kazakh trust law, and English banking law. In light of recent enforcement actions by Moldovan investors Anatolie and Gabriel Stati and their companies in various other jurisdictions, including Sweden and England, this decision, rendered by former Supreme Court Justice Mr. F.B. Bakels, represents an important victory for the National Bank. The dispute arose out of a number of heavily-publicised enforcement actions recently taken by the Statis against assets of the Republic of Kazakhstan and the National Bank (the central bank of Kazakhstan) in several jurisdictions. The Statis levied attachments under BNY Mellon in September and October 2017, which led to the freezing of EUR 22 billion in cash and securities accounts of the National Bank, held with BNY Mellon. The National Bank's accounts with BNY Mellon are part of a National Fund for the Kazakh economy. De Brauw commenced summary proceedings on behalf of the National Bank to lift the attachments. The Republic of Kazakhstan and the BNY Mellon appeared as interested parties. On 9 January 2018, the hearing in the summary proceedings was held at the Amsterdam District Court before former Supreme Court Justice and current Preliminary Relief Judge Mr. F.B. Bakels. Albert Marsman and Marnix Leijten pled on behalf of the National Bank at the hearing. Preliminary Relief Judge F.B. Bakels rendered a decision on 23 January 2018, lifting the attachment on the accounts with BNY Mellon on the basis of two separate grounds raised by the National Bank. The successful lifting of the attachment has been publicised in various media outlets. On 24 January 2018, Reuters Business News included an article reporting on the decision of 23 January 2018. Reuters reports that the freeze, now successfully lifted, "had shocked the oil-exporting nation and the sovereign fund industry". On the same day, Global Arbitration Review (GAR) was also headlined with an article on the recent summary proceedings before the District Court of Amsterdam and its connection to a number of cases in various jurisdictions. De Brauw's Albert Marsman was approached for comment by the GAR: "Partner Albert Marsman of De Brauw welcomes yesterday’s decision, which he says “confirms that the National Bank of Kazakhstan’s funds cannot be the subject of attachment by purported creditors of the Republic. The court also made clear that it does not accept information being concealed in an attachment application, and imposed a significant fine for any future failure to be transparent.” Team: Albert Marsman (lead partner), Marnix Leijten, Abdel Zirar, Esther Huijzer, Gianni Molewijk, Varvara Aryutina, Alessio Gracis, Ondine Sinsheimer. Read more at GAR and Reuters.

The Dispute Resolution Review offers a guide to those who are faced with disputes that frequently cross international boundaries. Eelco wrote the chapter on the Netherlands. It gives an overview of the dispute resolution framework, court procedure and legal practice, as well as recent developments and trends.

Can in-house counsel admitted to a non-Dutch bar invoke legal privilege in the Netherlands? The Rotterdam District Court has ruled that these "foreign in-house counsel'' can – if they have that right under the jurisdiction where they work. In addition, if they work in the Netherlands, they must also meet specific criteria set by the Netherlands Bar. According to the court, foreign in-house counsel practising in the Netherlands should be treated the same as Dutch in-house counsel. The latter are required to sign a professional charter – a document that guarantees their independence and is signed by both employer and in-house counsel – in order to invoke legal privilege. Although the ruling is not final, it is important to consider its implications. To err on the side of caution, we recommend that clients who employ foreign in-house counsel make sure that their charters are in order and signed and record that the standards required by this charter have thus far been upheld.

On 24 November 2020, the European Parliament endorsed a new directive on representative actions for the protection of the collective interests of consumers ("Collective Redress Directive" or "CRD"). The CRD is part of the "New Deal for Consumers", an initiative to strengthen EU consumer law enforcement and to modernise EU consumer protection rules. The CRD introduces new cross-border and domestic redress mechanisms allowing collective actions against traders for violating a broad range of EU laws, such as data protection, travel and tourism, financial services, energy and telecommunications. The CRD will enter into force 20 days after its official publication. Member states will then have two years to implement the directive and a further six months to apply the new provisions. This means that these changes are expected to be in full effect in the EU from mid-2023 onward.