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TLC For Your Dutch Collateral: Some Practical Considerations
November 9, 2023
By Camille van Liebergen
Earlier this year, SFNet announced its second Cross-Border Finance Essay Contest, sponsored by Goldberg Kohn Ltd. Members of SFNet’s International Finance and Development Committee judged the essay submissions on content, originality, clarity, structure and overall contribution to furthering and expanding understanding and discourse within the field of cross-border finance. This essay won second place and focuses on how tweaking the borrower’s customer contracts can strengthen your position as secured lender.
The authors of the winning essays have been invited to participate on a panel at SFNet’s 79th Annual Convention in Orlando, FL, November 15-17
When a U.S. lawyer and a Dutch lawyer talk about anti-assignment clauses, each might misconstrue what the other is talking about. This is caused by differences in law. In the U.S., anti-assignment clauses typically preclude the assignment of the contract itself, but not the assignment of accounts receivable arising from that contract. In the Netherlands, such clauses do preclude the assignment of accounts receivable arising from such a contract. An agreement between parties providing that accounts receivable are not assignable is invalid and unenforceable under the Uniform Commercial Code (“UCC”).1 Dutch law has no such rule. If a Dutch contract contains an anti-assignment clause, it becomes legally impossible to transfer the accounts receivable to another party. Assignment in violation of such a clause does not only constitute a breach of contract; the accounts receivable are simply not capable of being transferred to another party. Dutch accounts receivable that cannot be transferred, cannot be pledged either.2 A U.S. lender that is lending against Dutch accounts receivable should keep this in mind. .
You may ask: When do I have to deal with Dutch law governed accounts receivable? This might be more often than you would think. All it might take is to finance a US parent that happens to have a Dutch subsidiary. In that scenario, the Dutch subsidiary (“DutchCo”) may be a borrower. DutchCo probably has multiple customers. As a secured lender, you secure your loan by obtaining all-asset security. In particular, you seek a security interest in the accounts receivable of DutchCo, because they represent a large portion of its assets.
Suppose DutchCo is in default and you decide to collect the pledged accounts receivable. As you want to proceed with collection of the accounts receivable, you are being told that these are not subject to a valid pledge because the underlying customer contracts contain an anti-assignment clause. As a consequence of this anti-assignment clause, the accounts receivable are not validly pledged under Dutch law. You end up empty-handed.
Click here to continue reading the article.
The authors of the winning essays have been invited to participate on a panel at SFNet’s 79th Annual Convention in Orlando, FL, November 15-17
When a U.S. lawyer and a Dutch lawyer talk about anti-assignment clauses, each might misconstrue what the other is talking about. This is caused by differences in law. In the U.S., anti-assignment clauses typically preclude the assignment of the contract itself, but not the assignment of accounts receivable arising from that contract. In the Netherlands, such clauses do preclude the assignment of accounts receivable arising from such a contract. An agreement between parties providing that accounts receivable are not assignable is invalid and unenforceable under the Uniform Commercial Code (“UCC”).1 Dutch law has no such rule. If a Dutch contract contains an anti-assignment clause, it becomes legally impossible to transfer the accounts receivable to another party. Assignment in violation of such a clause does not only constitute a breach of contract; the accounts receivable are simply not capable of being transferred to another party. Dutch accounts receivable that cannot be transferred, cannot be pledged either.2 A U.S. lender that is lending against Dutch accounts receivable should keep this in mind. .
You may ask: When do I have to deal with Dutch law governed accounts receivable? This might be more often than you would think. All it might take is to finance a US parent that happens to have a Dutch subsidiary. In that scenario, the Dutch subsidiary (“DutchCo”) may be a borrower. DutchCo probably has multiple customers. As a secured lender, you secure your loan by obtaining all-asset security. In particular, you seek a security interest in the accounts receivable of DutchCo, because they represent a large portion of its assets.
Suppose DutchCo is in default and you decide to collect the pledged accounts receivable. As you want to proceed with collection of the accounts receivable, you are being told that these are not subject to a valid pledge because the underlying customer contracts contain an anti-assignment clause. As a consequence of this anti-assignment clause, the accounts receivable are not validly pledged under Dutch law. You end up empty-handed.
Click here to continue reading the article.
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