Bart van der Wiel
Als cassatiespecialist heeft Bart van der Wiel talrijke overwinningen behaald in toonaangevende zaken op het gebied van finance, insolventie en aansprakelijkheidsrecht, waarbij hij heeft opgetreden voor financiële instellingen zoals Achmea, AIG, Allianz en ING. Voorts trad hij op voor de curatoren van KPNQwest tegen aandeelhouders en bestuurders, en treedt hij op voor de curatoren van Lehman Brothers Treasury, met resultaten die van groot belang waren voor de afwikkeling van deze faillissementen. Bart is in 2004 gepromoveerd en heeft sindsdien vele publicaties geschreven. Hij is raadsheer-plaatsvervanger in een Gerechtshof en redactielid van het Tijdschrift voor Civiele Rechtspleging. Bart is (veel)gevraagd spreker en docent.
- Oct 2015
Houthoff Buruma represented ING Commercial Finance in a Supreme Court concerning 'surplus sharing arrangements'. Such arrangements provide lenders of the same debtor with rights for recourse on a potential surplus in the collateral provided to each of the other respective lenders. The Supreme Court confirmed that such arrangement is enforceable if a bankruptcy of the debtor follows (‘bankruptcy proof’) , under the condition that the debtor was a party to this arrangement. Considering the volume of surplus sharing arrangements used by credit institutions as security arrangement, this judgment is of prime importance for financial institutions active on the Dutch market.
Click here for the judgment of the Supreme Court.
- Jun 2015
The Unbundling Act requires that the integrated energy companies unbundle their network companies, and forbids privatization thereof. Three large energy companies argued that the act infringes on the right to free movement of capital and therefore does not bind them. Today, after well over six years since the matter was initiated against the State by the energy companies and a preliminary ruling by the Court of Justice of the European Union, the Dutch Supreme Court found that the Unbundling Act is in line with the right to free movement of capital. The Supreme Court reasons that with the Unbundling Act, the legislature wanted to secure the supply of gas and electricity on a high level, and to make the energy market transparent. This is in the interest of the purchasers, including consumers. These objectives of the Unbundling Act are ‘important reasons in the public interest’. With the group prohibition and the prohibition of sideline activities, the Unbundling Act meets its objectives, whilst not going further than necessary for that. For that reason the Supreme Court rules that these restrictions on the free movement of capital or freedom of establishment are justified.
- Apr 2015
In a groundbreaking judgment, the Supreme Court found that civil-law notaries do not (automatically) have to refuse service when alienation or encumbrance constitutes a breach of contract in respect of a third party. Houthoff Buruma acted for the civil-law notary. At the request of the seller and the buyer of a property, a civil-law notary executed the deed of transfer while the seller had an (unfulfilled) obligation towards a third party to offer the property for sale. The Dutch Supreme Court ruled that in such a situation a civil-law notary must only refuse his service if the facts known to the civil-law notary justify the view that the intended acquirer does not have a legitimate interest in the transfer of title or encumbrance (which is the case if the right of the third party is designated as the stronger right by a legal rule), or that the intended acquirer would act unlawful in respect of the third party by requiring transfer of title or encumbrance. For the latter it is not sufficient that as a result of the transfer of title or encumbrance the alienator is in breach of contract in respect of a third party.
Click here for the judgment of the Supreme Court.
- Mar 2015
In deviation of its judgment Vis q.q. / NMB from 1989, in JPR / Gunning q.q. the Supreme Court found that a bankruptcy trustee can revoke an electronic payment transaction if the payment order has not led to a credit entry in the bank account of the receiving party on the moment of the bankruptcy. The Supreme Court overruled its own old judgment prospectively: the new rule is only applicable to bankruptcies declared after the new judgment.
Click here for the judgment of the Supreme Court.
- Jan 2015
Houthoff Buruma represents ING Commercial Finance in defending a case before the Supreme Court concerning 'surplus sharing arrangements'. Such arrangements provide lenders of the same debtor with rights for recourse on a potential surplus in the collateral provided to each of the other respective lenders. Recent Supreme Court decisions have raised questions with scholars and financial markets on the enforceability of surplus sharing arrangements in case of bankruptcy of the debtor. Considering the volume of surplus sharing arrangements used by credit institutions, it is of importance that the Supreme Court provides clarity in this respect.
- Nov 2014
Houthoff Buruma represented ING Bank in a Supreme Court case concerning the termination of a credit line. The Supreme Court confirmed that a bank can invoke a contractual termination clause, unless this would be unacceptable according to the standards of reasonableness and fairness. This test is more strict than the more open ended 'balance of interests'-test that has been applied by lower courts for many years. (Link to Supreme Court ruling:
- Apr 2014
Houthoff Buruma represents Lehman Brothers Treasury Co. B.V. (in liquidation) in civil procedures against two large bondholders. The disputes concern the valuation of derivatives.
- Mar 2014
Houthoff Buruma acted as trustees in bankruptcy of KPNQwest N.V. in a law suit against Qwest, KPN and certain directors of KPNQwest. The law suit was settled for EUR 260.000.000,- possibly the largest directors and officers liability settlement on Dutch territory till today.
- Oct 2013
Successfully defending Euronext before the Supreme Court regarding a claim of wrongful listing of stock. In November 2000, the shareholders of Cignal, UPC and Priority entered into a shareholders' agreement ("SA"). Land et al. claim to be former shareholders of Cignal and as such party to the SA. According to Land et al., UPC and Priority are in breach of their obligations under the SA to use their reasonable endeavours to effect an IPO of shares in Priority. Land et al. not only started litigation against UPC and Priority, but also claim against Euronext. The claim against Euronext was based on wrongful listing of the stock of Priority on the Amsterdam Stock Exchange; and wrongful facilitation of UPC and Priority's breach of the IPO obligation.
The District Court and the Court of Appeal rejected the claim of Land et al. Subsequently, Land et al appealed to the Supreme Court. We successfully defended Euronext before the Supreme Court: the appeal was dismissed.
- Mar 2013
Representing the trustees of Lehman Brothers Treasury Co. B.V. ('LBT') in the Supreme Court against the largest creditor, Lehman Brothers Finance SA ('LBF'). LBF tried to prevent a collective settlement with LBT creditors by attacking decisions of the supervisory judge that held the road map to a collective settlement. LBF appealed to the district court and, thereafter, to the Supreme Court. Houthoff Buruma litigators acted for the trustees by successfully defending the decisions of the supervisory judge against the attacks of LBF.
- Feb 2013
In a follow up on landmark Supreme Court case ING Bank/ Dix qq Houthoff again successfully represented ING Bank in a case that settles a few last points of uncertainty for the Dutch banking community regarding the practice of establishing pledges by power of attorney. The Supreme Court confirmed that a power of attorney for a pledge to the bank of a client already contractually obliged to pledge is a manner of execution of the obligation of the client. Therefore, the power of attorney is obligatory and not open for avoidance for prejudice of creditors in the bankruptcy of the client of the bank. Furthermore, the Supreme Court ruled that neither the document that embodies the obligation to pledge, nor the document that embodies the power of attorney has to be filed with the tax authorities to make the pledge valids. The requirement of filing of documents only exists for the deed of pledge itself.
(Link to Supreme Court ruling: ING Bank/Van Leuveren q.q, Feb 2013)
- Dec 2012
The bankruptcy trustees of Lehman Brothers Treasury Co. B.V. ('LBT') offered a composition plan to the joint creditors of LBT. In 2013, the plan was accepted by 99% of the creditors. Over 26,000 creditors from ten different jurisdictions voted on the plan. The Houthoff Buruma team drafted the voting procedures and successfully represented the bankruptcy trustees of LBT in a court procedure concerning the applicability of these voting procedures. Moreover, the team successfully represented the bankruptcy trustees in the court proceedings concerning the homologation of the composition plan.
- Feb 2012
In a landmark Supreme Court proceeding Houthoff successfully represented ING Bank in a case that settles years of uncertainty for the Dutch banking community. A bankruptcy trustee of a debtor of ING Bank claimed that the common practice by Dutch banks to grant themselves powers of attorney to establish a pledge on a client's third party claims is against Dutch law. The claimant also argued that the common practice of using one deed in respect of all clients (standardized T&C's) is in breach of law. The entire banking community of the Netherlands has been following this case and assisting with information, as a negative outcome would have had consequences for the validity of an important part of all security obtained by banks in the Netherlands. The Supreme Court has, by rejecting the claimant's arguments, once and for all ensured that banks now know that the combination of the power of attorney and the collective deed of pledge result in valid pledges and are thus reliable guarantees for outstanding loans.
(Link to Supreme Court ruling: ING Bank/Dix q.q, Feb 2012)
- Dec 2011
Represented a bankruptcy trustee in a bankruptcy of an individual who filed a claim against the trustee that had liquidated parts of his estate at a low price. The Court of Appeal ruled that the trustee was personally liable for damages. The Supreme Court set aside the decision of the Court of Appeal and ruled that a trustee, unless he is bound by specific rules, has a large amount of discretion. The trustee's conduct should be judged with reticence. The Supreme Court ruled that it is a condition for personal liability that the trustee realized or should have realized that his conduct was improper. (Link to Supreme Court ruling)
- Apr 2011
Houthoff Buruma represented Rabobank in a procedure against former clients of Befra. Befra, in its capacity of managing partner, acted as the representative of various limited partnerships (“c.v.’s”) in which the clients had participated as limited partners. The c.v.’s had accounts with Rabobank. On behalf of the c.v.’s Befra instructed Rabobank to execute transactions in securities. Befra went bankrupt and its clients lost part of their investments. Befra’s clients claimed that Rabobank had been negligent towards them. According to Befra’s clients, Rabobank shouldn’t have dealt with Befra because it lacked the necessary permit to perform asset management for the clients. The District Court ruled in favour of the clients, but the Court of Appeal and the Supreme Court decided that Rabobank had not acted negligently towards Befra’s clients in dealing with Befra and executing transactions in securities. Both Courts held that Befra did not perform asset management for its clients, but merely acted as a representative for the c.v.’s and as such did not need a permit. The team represented Rabobank before the District Court, the Court of Appeal as well as the Supreme Court.
(Link to Supreme Court ruling: Rabobank c.s./Befra, Apr 2011)
- Dec 2010
Houthoff Buruma represented ING Bank in Supreme Court proceedings regarding the scope of security given to the bank by way of a pledge on all its client's claims. The client had made advance payments under contracts with third parties, and had a reimbursement claim for those advance payments in case of termination of the contracts. The issue raised before the Supreme Court was whether these reimbursement claims are also secured by the pledge when the bankruptcy trustee terminates the contracts after the bankruptcy of the client. The Supreme Court decided that these claims are not secured by the pledge because they are caused by the termination of the contract, and thus only come into existence on that moment.
(Link to Supreme Court ruling: ING Bank/Nederend q.q., Dec 2010)
- Jul 2010
Litigating for Alfa Romeo Netherlands against a non-authorised reseller of new vehicles, which led to a new standard judgment of the Supreme Court, in favour of ARN.
- Jun 2010
Houthoff Buruma represented Vitesse in a procedure against the Province of Gelderland. The Supreme Court decided that the Province of Gelderland is liable for the damage that has been caused to Vitesse and its managers who were held in false conviction that the province will provide a substantial amount for the rescue of Vitesse in a way of a rent decrease for the Gelredome stadium in the 2001/2002 season.
(Link to Supreme Court ruling)
- Toon meer
Bart van der Wiel is ranked in Tier1.
He "made an excellent impression. He really understands the needs of his client and makes exceptional efforts to serve their interests. He stands out as a highly qualified Supreme Court lawyer, which is reflected in a keen and solid analysis of each case. He wants to win and goes beyond the ordinary to achieve that."
Legal 500 (2017 Edition)
Chambers Europe (2016 Edition)
Sources appreciate his "very straightforward, excellent legal skills," while a client adds: "He is meticulous, sharp and a really smart lawyer - I would recommend him without hesitation."
Legal 500 (2016 Edition)