The law is not set in stone and evolves over time. By not shying away from new battlegrounds, lawyers can use it as an instrument for change. Following are three examples in which we have shaped new case law and legislation.
Maintaining symbols of national pride.
In 2004, KLM and Air France, advised by NautaDutilh, aimed to create the second largest airline group in the world via a merger. A cross-border merger is complicated enough without having to deal with symbols of national pride. Seeking synergies required balancing aspects of public, corporate and tax law without losing sight of cultural needs. The solution? A merger structured as a share exchange offer – with shares issued by Air France in exchange for KLM shares. It also required the French-Dutch tax treaty to be amended, with new rules to prevent discussion about which country was entitled to tax the newly created airline in the years to come. KLM and Air France were able to continue to exist as symbols of national pride while achieving synergies which allowed them to remain competitive.
Protecting a company from attack by governmental authorities.
An equal playing field was not on the cards for Yukos Oil in 2006. Their CEO and majority shareholder had been arrested at gunpoint, and the Russian authorities had presented the oil and gas company with a huge tax bill. They then proceeded to freeze its assets, eventually forcing the company into bankruptcy.
A legal battle ensued. Represented by NautaDutilh, Yukos’ Dutch subsidiary and its directors initiated legal proceedings in the Netherlands on the basis that Yukos Oil’s valuable foreign assets were held through a Dutch structure. In 2007, the Amsterdam District Court sided with the claimants, finding that the involuntary bankruptcy of Yukos violated Dutch public policy. As a result, the court ruled that the Russian bankruptcy of Yukos Oil could not be recognised in the Netherlands.
The 13-year legal battle ended when the Dutch Supreme Court upheld this decision in 2019, making the Dutch subsidiary of Yukos Oil the only part of the group protected from attack by the Russian authorities. However, the impact of the Supreme Court decision extends further: any non-EU bankruptcy will only be recognised in the Netherlands if it can be established that it does not constitute a violation of Dutch public policy.
Combatting climate change.
If countries fail to adopt policies to ward off climate change, the courts must step in to protect the rights of citizens. In 2013, the Dutch foundation Urgenda, together with 886 citizens, commenced one of the world’s first climate change lawsuits. This would oblige the Dutch government to take adequate action to reduce the level of carbon emissions.
In 2018, The Hague Court of Appeal sided with Urgenda, ruling that the severity and scope of the climate crisis required greenhouse gas emissions to be reduced by at least 25% below 1990 levels – by 2020. This was the first time a court found that a country had breached its human rights obligations to its citizens by failing to take adequate action to combat climate change. The ruling was based on the state’s legal duty to ensure the protection of life and the family life of its citizens under the European Convention on Human Rights. In May 2019 NautaDutilh represented Urgenda before the Dutch Supreme Court as part of Urgenda’s legal team.
Regardless of the court’s decision, the impact of Urgenda’s climate case cannot be underestimated. Not only have these decisions sparked a public debate about climate change in the Netherlands, but they have inspired climate litigation against governments worldwide.