On 10 July 2020 the Dutch Supreme Court rendered two judgments (link and link) in which the Supreme Court answered preliminary questions of great importance for the broader banking practice in the Netherlands (securitisations, cover bond transactions and non-performing loan transactions).
The Supreme Court ruled that the nature of a claim originated by a bank does not prevent the transfer of it to a non-bank. The Supreme Court confirms the principle of free transferability of claims (including the ancillary right to change the interest rate). This means that a bank in principle is free to transfer claims it has on clients to non-banks, which is of great importance for the funding and profitability of banks.
The Supreme Court further clarifies the special duty of care (bijzondere zorgplicht) as developed in case law the last decades and which is applicable to both private and corporate clients. The content and scope of this bank's special duty of care depends on case specific circumstances. After the transfer of a claim a non-bank is not bound by the rules of the bank's special duty of care and the claim does not change as a result of its transfer. However the bank's special duty of care can determine the content of the transferred claim in more detail, leading to restrictions which must be observed by a non-bank. Furthermore, the client retains previous defenses it had against the bank. Based on the rules of reasonableness and fairness the non-bank must take into account the legitimate interests of the client when managing the claim. The Supreme Court applies the outlined framework to the example in which a non-bank wishes to exercise the right of changing the interest rate, which underlines the tailor made framework the Supreme Court provided in these judgments.
A team of lawyers at NautaDutilh, led by Freerk Vermeulen and further consisting of Allart Haasjes and Bart Wijnstekers, assisted the Dutch Banking Association (Nederlandse Vereniging van Banken) in the proceedings with the Supreme Court. The Dutch Banking Association submitted written comments and gave its vision, since answering the preliminary questions is of great importance for the banking business in the Netherlands.
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