8.1 Chapter 1 – Introduction

This book deals with the position of shareholders in preventive restructurings, in particular under the Act on the Confirmation of Private Plans or ACPP (Wet homologatie onderhands akkoord).1 The procedure under the ACPP is a preventive restructuring procedure: the company can still pay its due debts, but a restructuring of the debts of the company is necessary to avert bankruptcy. The ACPP facilitates a compulsory plan between the company and its creditors and shareholders. The affected shareholders and creditors vote on the plan and a judge then decides on the confirmation of the plan.

The ACPP is mainly written from an insolvency law perspective: out of the money shareholders should not frustrate a debt restructuring plan when they are affected by the plan.2 The plan may amend the rights of shareholders and they may even lose their entire share interest. Nevertheless, company law remains relevant. Indeed, the company is not dissolved in the event of a preventive restructuring. The general meeting and shareholders retain their powers and rights respectively. It is therefore interesting to examine the position of shareholders from a company law perspective. This research maps out the field of tension between company law and ‘restructuring law’.

The main question is as follows: what is the position of shareholders under the ACPP, and how does this compare with the position of shareholders under the English and German preventive restructuring procedures? By ‘position’ I mean, in addition to shareholder rights and the limits to the exercise thereof under regular company law, also the rights that shareholders can derive from the ACPP (and the foreign procedures). I answer the main question on the basis of three sub-questions. In order to be able to interpret the position of shareholders under the ACPP from a company law perspective, it is necessary to explain their position under company law. The first sub-question is therefore: what is the position of shareholders under Dutch law; in particular, which rights are shareholders allowed to exercise and which limits do shareholders face in exercising their rights? This is discussed in chapter 2. The second sub-question is discussed in chapter 3 and concerns the European regulations which the Dutch legislator must observe: what is the European framework for a preventive restructuring procedure? Furthermore, an important part of this research is dedicated to a comparison between the English and German legal systems, both of which already have a preventive restructuring procedure. With the arrival of the ACPP, the Netherlands will, for the first time, have a preventive restructuring procedure in which shareholders can also be involved. The third and final sub-question relates to the topic of foreign law: what is the position of shareholders in English and German preventive restructuring procedures and how does English and German law provide inspiration for Dutch law? This sub-question is dealt with in chapters 4, 5 and 6.