Introduction
Shipbuilder IHC offered its nine banks a composition after failing to repay a EUR 28 million loan on time: the credit facility reduced from EUR 950 million to EUR 503 million, the sale of a subsidiary, additional security. Six banks voted in favour, two against, one abstained. The Rotterdam District Court confirmed the composition, and the dissenting banks were bound by it.
That is the essence of the WHOA, the Court Approval of a Private Composition Act: a company can restructure its debts without bankruptcy and without suspension of payments, and creditors who refuse are bound by the plan. The Act has applied since 1 January 2021 and is set out in sections 369 to 387 of the Dutch Bankruptcy Act. The doctrine in outline, including the limits drawn by the Supreme Court, is set out on the page about the Dutch scheme as a composition outside bankruptcy.
The case did have a sequel. No appeal or cassation lies against a confirmation judgment, which is why the Procurator General brought cassation in the interest of the law: not to affect the outcome for these parties, but to have the legal question settled. On 25 October 2024 the Supreme Court quashed the judgment, expressly providing that the quashing would not prejudice the rights the parties had derived from the plan. The rule now settled: a plan cannot compel a financier to provide credit on terms it has not agreed to. The WHOA can rearrange debts, but it cannot impose new obligations on anyone.
What follows sets out each step of the procedure and the test the court applies, in each case with a published decision in which that test was applied.
When a plan can be offered
There is a single condition for access, and it looks forward rather than back. The debtor must be in a position in which it is reasonably likely that it will be unable to continue paying its debts (section 370(1) Bankruptcy Act). The case law describes that pre-insolvency position as follows. The company has not yet stopped paying and can therefore still meet its current obligations, but foresees that there is no realistic prospect of avoiding future insolvency without restructuring (District Court The Hague 25 May 2021, ECLI:NL:RBDHA:2021:5316).
That position must be substantiated, and it is not the only requirement. The District Court The Hague refused a request on three counts at once: the WHOA position was absent, there was no concrete prospect of a plan within a reasonable period, and it remained unclear whether the company was viable. The court also weighed that the mortgagee faced mounting interest charges (District Court The Hague 7 November 2022, ECLI:NL:RBDHA:2022:11921). An applicant must therefore be able to substantiate all three.
The Act presupposes a company with a viable core and an unsustainable balance sheet. Where that core is absent, the WHOA is not the route: for a company without activities and without assets, turbo liquidation comes into play. And if a restructuring fails, what remains is the route of bankruptcy and a trustee, where liquidation of the estate takes precedence over continuation.
Two categories fall outside the Act. Employees' rights under their employment contracts cannot be modified (section 369(4)), and the Supreme Court has held that this includes an industry-wide pension fund's claim for unpaid pension contributions (Supreme Court 25 February 2022, ECLI:NL:HR:2022:328, with the opinion of Advocate General De Bock ECLI:NL:PHR:2021:1152). Financial collateral arrangements and set-off clauses within the meaning of section 7:51 Dutch Civil Code are also out of reach.
Confidential or public
At the outset a choice arises that shapes the rest of the process. In the confidential plan procedure it is not made public that a plan is being prepared, and the court hears all requests in chambers. The reason courts give is to bring about a plan in relative calm and to avoid negative publicity about the financial difficulties (District Court Central Netherlands 31 March 2022, ECLI:NL:RBMNE:2022:1329).
The public procedure offers something the confidential variant cannot: it is listed in Annex A to the European Insolvency Regulation. The court can therefore base its jurisdiction on that Regulation, and the procedure is recognised in other member states (for example District Court Rotterdam 11 August 2023, ECLI:NL:RBROT:2023:7216). For a group with foreign entities, that choice therefore determines whether protection has cross-border effect.
The steps
1. The starting declaration
The process begins with the filing of a starting declaration with the court registry (section 370(3)). By doing so the company records that it has begun preparing a plan. From that moment the court can be asked to grant relief, even before any plan is on the table.
What follows can be a long series. In a Rotterdam case the starting declarations were filed on 29 April 2022. There followed a refused request for a stay, then the appointment of a restructuring expert, the setting and increase of that expert's budget, the lifting of attachments together with an extension of the stay, and a further extension. On 13 March 2023 the court refused the confirmation request (ECLI:NL:RBROT:2023:3091). Almost eleven months of process, with no plan at the end of it.
2. The restructuring expert
Besides the company itself, a creditor, a shareholder or the works council can ask the court to appoint a restructuring expert (section 371(1)). That expert is then authorised, in place of the company, to offer a plan, and performs the task effectively, impartially and independently (section 371(6)). While the appointment lasts the company can no longer offer a plan itself. It may still submit one to the expert with a request to put it to those entitled to vote (section 371(1), and see District Court Amsterdam 25 March 2021, ECLI:NL:RBAMS:2021:1876).
The test is limited, but not empty. The request is granted if the company is in the pre-insolvency position, unless it appears summarily that the interests of the creditors as a body are not served by it (section 371(3)). Where the company files the request itself, it is granted in any event. Where a majority of creditors supports it, that is in principle also the case. If the court has doubts about the position, it may first have that investigated (section 371(4)). A combined request for an appointment and for a stay in a confidential procedure was granted, for example, by the District Court East Brabant (16 December 2022, ECLI:NL:RBOBR:2022:5671).
Limited is not the same as automatic, and the test cuts both ways. The District Court Central Netherlands refused a request because the applicant had not sufficiently demonstrated that it could still meet its current obligations (14 May 2021, ECLI:NL:RBMNE:2021:2294). A company that has already stopped paying therefore falls outside the regime: coming too early is a problem, but so is coming too late.
For SMEs there is a brake on the creditor route. Where the request concerns a debtor operating an SME business and no starting declaration has yet been filed, the court grants the request only if the debtor consents (section 371(15)). If the board withholds consent without good reason, the court may rule that its decision has the same effect as that consent.
Who bears the costs is set out in the Act itself. In principle the debtor pays the expert's remuneration and costs, but where a majority of creditors supports the request, those creditors bear them (section 371(10)). The court may attach to the appointment the condition that security be provided or an advance be paid. A creditor who takes control with a majority behind it therefore also takes over the bill.
The appointment ends by operation of law once the court confirms the plan, unless the court rules that it continues (section 371(13)). The court may also dismiss and replace the expert at any time.
3. The stay of enforcement
Preparing a plan takes time, and there is no time if creditors enforce in the meantime. The court can rule that enforcement against the company's assets is temporarily barred and that the handling of a filed bankruptcy petition is suspended (section 376(2)(a) and (c)). That second element carries weight: in 85 decisions in which a stay is at issue, a bankruptcy petition or application also plays a role. A creditor using a bankruptcy petition as leverage can derail a plan process before it has begun. The lifting of attachments also occurs.
The stay applies for at most four months and can be extended to eight months in total. What such a decision looks like is shown by the District Court Limburg (11 February 2021, ECLI:NL:RBLIM:2021:8854). It ordered a stay of four months. During that period no third party can exercise its power of enforcement against the applicant's assets without the court's authorisation, and that applies only to third parties who have been informed of the order or who know that a plan is being offered.
That information condition in the order is not a detail. The protection does not operate against a creditor who knows nothing of it, and the case law has said so expressly (District Court Amsterdam 25 March 2021, ECLI:NL:RBAMS:2021:1876). Notifying the creditors concerned is therefore part of the measure, not a formality that follows it.
Two refusals show where the limits lie. The District Court Central Netherlands refused a request because it could not be ruled out that creditors would in fact be worse off if the business continued (8 April 2022, ECLI:NL:RBMNE:2022:1357). And an extension is no formality: the District Court Overijssel refused one because it had not been shown that significant progress had been made towards a plan (3 August 2023, ECLI:NL:RBOVE:2023:3161). An applicant seeking an extension must therefore be able to demonstrate progress.
4. The observer
Alongside the restructuring expert the Act provides for a lighter form of supervision. The observer supervises the making of the plan, with regard for the interests of the creditors as a body and, where relevant, the shareholders (section 380(1)). The observer does not take over the process but reports to the court (District Court Amsterdam 7 May 2025, ECLI:NL:RBAMS:2025:3100).
5. Classes and voting
The plan is not put to all creditors as a single group. Those who are not in a comparable position are placed in a separate class, and voting takes place per class (sections 374 and 381(5)). A class of creditors approves if two thirds of the claim value cast within that class is in favour (section 381(6)); for shareholders that two thirds applies to the issued capital (section 381(7)).
What counts is therefore the amount and not the number of creditors, and only those who vote are counted. The division into classes thus determines the outcome, and the court reviews its correctness at the confirmation stage.
Unequal treatment within a group of creditors is not necessarily fatal. The District Court Rotterdam received an interim request concerning a group of ordinary creditors treated unequally in two respects. Its ruling: there was a reasonable ground for that, and those creditors were not prejudiced by it (3 March 2021, ECLI:NL:RBROT:2021:1769). A party treating creditors unequally must therefore be able to explain why.
Around the vote itself, practical questions arise which the court assesses at confirmation, such as extending the voting period and whether related parties qualify as SME creditors (District Court Central Netherlands 12 June 2025, ECLI:NL:RBMNE:2025:2844).
6. The interim ruling on aspects
One instrument can make the difference between a plan that stands and a plan that collapses at the final hearing: the request for a ruling on aspects (section 378). It allows a point of dispute arising during consultation to be put to the court before voting takes place. Think of the division into classes, admission to the vote, or the allocation of the reorganisation value. It prevents a plan on which months of work have been spent from failing at the confirmation hearing on a fundamental point.
The District Court Amsterdam decided a series of contested points around a group plan on such a request from a restructuring expert (5 August 2021, ECLI:NL:RBAMS:2021:6519). A few weeks later it gave a second ruling on aspects in another case, also at the request of a restructuring expert (2 September 2021, ECLI:NL:RBAMS:2021:6521).
One caveat belongs here. A leapfrog cassation is pending on the binding force of such a ruling. The Advocate General takes the view that no res judicata attaches to a ruling on aspects for as long as no confirmation decision has followed (opinion of 24 April 2026, ECLI:NL:PHR:2026:434). No judgment has yet been given.
7. Confirmation
Once at least one class of creditors has approved, the court can be asked to confirm the plan (section 383(1)). If it grants the request, the plan binds the company and all creditors and shareholders entitled to vote, including those who voted against or did not vote (section 385). No legal remedy lies against that decision (section 369(10)), so any defence must be raised at first instance, because there is no second chance.
The review runs along two tracks. The court applies the grounds in section 384(2) of its own motion. It must refuse confirmation if it is reasonably likely that new financing is not necessary for performance of the plan, or that the interests of the creditors as a body would be materially prejudiced by it (section 384(2)(f)(1)). The grounds in subsections 3 and 4, by contrast, arise only at the request of a creditor or shareholder who voted against the plan. A party that does not defend itself cannot invoke them afterwards.
That second category contains the three rules that protect creditors. No one may be worse off under the plan than in bankruptcy, and the court refuses the request if that appears summarily (section 384(3)). A creditor without a pledge or mortgage must be able to opt for a cash payment equal to what it would receive in bankruptcy (section 384(4)(c)). Commercial financiers with a pledge or mortgage can be compelled to stay on board for the time being. If their class voted against, they must at least be given a right to a payment in another form (section 384(4)(d)). And the statutory or contractual ranking may not be departed from to the detriment of a dissenting class, unless there is a reasonable ground and those creditors are not prejudiced by it (section 384(4)(b)).
A confirmed plan in which the court reviewed, among other things, whether the Tax Administration was unreasonably prejudiced can be found at the District Court Amsterdam (15 May 2024, ECLI:NL:RBAMS:2024:3441).
The formal requirements are strict. The District Court Zeeland-West-Brabant declared applicants inadmissible in their confirmation requests because a consenting creditor is not a class within the meaning of section 383(1) (17 May 2024, ECLI:NL:RBZWB:2024:3447). One consenting creditor is therefore not the same as one consenting class.
What a plan cannot impose
A plan modifies existing rights. Beyond that lie two limits drawn by the Supreme Court.
Continuing contracts are not automatically affected. The company can propose amendment or termination, and if the counterparty does not agree, the contract can be terminated early, provided a plan is confirmed and the court gives permission (section 373(1)). The counterparty is then entitled to damages, although the plan can modify that entitlement (section 373(2)). This route does not apply to employment contracts. What section 373 does not offer is a basis for compelling a counterparty to perform on amended terms: termination is possible, rewriting is not.
And a plan cannot oblige a financier to provide new credit, nor to honour a previously committed facility on amended terms. That is the outcome in the IHC case. In section 370(1) the legislature had in mind only the compulsory adjustment of existing rights. That the WHOA is intended as a flexible restructuring instrument is no sufficient ground for assuming that a financier must take on heavier obligations (Supreme Court 25 October 2024, ECLI:NL:HR:2024:1533, with the claim of the Procurator General ECLI:NL:PHR:2024:346). A restructuring that counts on the bank continuing to lend under compulsion counts on something the Act does not provide.
What is possible is modifying the ranking that applies between the bound creditors on a later enforcement, and that also covers the ranking in property law: a new financier can be given security while existing security rights are subordinated. A prejudiced creditor does have the absolute priority rule against that.
Duration and costs in practice
The court decides quickly. The median interval between hearing and decision is eleven days. Protection is also arranged quickly: a decision on a stay follows a median of 29 days after the starting declaration is filed. Confirmation takes considerably longer, at a median of 159 days, so more than five months.
What the court sets by way of costs differs by role. For a restructuring expert the median is almost EUR 40,000, for an observer EUR 15,000, in most cases exclusive of VAT. That figure is not a ceiling but a state of affairs. It is raised as a process drags on: in one Gelderland case the advance went from EUR 32,329 to EUR 61,465 within six weeks.
Two things limit what those amounts tell you. They cover only the officeholder the court appoints: the company's own lawyers and advisers fall outside them, and the case law says nothing about those costs. And the amount set is almost always borne by the company, with the court able to require security or an advance beforehand, precisely when liquidity is tightest.
These figures are drawn from the 418 published decisions on a WHOA request between 1 January 2021 and July 2026. Each figure applies to the decisions in which the datum concerned is stated, because not every decision names a date or an amount.
Where requests come unstuck is a question of substantiation: the position and viability, the comparison with bankruptcy, the provision of information to creditors, and whether the right party made the right request at the right time.