Financial collateral agreements and the Dutch scheme ("WHOA"): Changes with effect from 1 January 2023
17 January 2023
Early 2022, after a public consultation, a Bill was introduced to Parliament to make certain changes to Dutch bankruptcy law to implement the EU Restructuring Directive 2019/1023. This Bill, which became law on 1st January 2023 (the "Restructuring Law"), also amends certain aspects of the WHOA and these changes are likely to benefit creditors whose claims are secured by way of a financial collateral arrangement ("FCA") significantly. Its implications for financial transactions and derivatives with Dutch entities that are covered by the WHOA are the main topic of this briefing.
Moreover, for unsecured creditors the explanatory remarks to the new law contain a novel and beneficial interpretation of protections available to them in case they are faced with a default by their debtor prior to a stay period imposed under a Dutch Scheme. This aspect will also be addressed in this briefing.