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Dutch Treat: Netherlands Judiciary Only Goes Halfway Towards Adopting Delaware Trilogy in Takeover Context

Posted by on Friday, July 20, 2012 in Notes, Vol. 41 No. 4, Volume 41, Volumes.

This Note examines Dutch takeover law in light of the current inter-EU competition to attract entities to individual Member States.  The recent hostile takeover of the Dutch bank, ABN AMRO, provides an excellent example of the Netherlands’ opportunity to use its judiciary to solidify its reputation as a competitive, business-friendly jurisdiction.  The Dutch Enterprise Chamber can aid the Netherlands in becoming the preeminent EU country—a similar status to Delaware’s Chancery Court in the United States.  Although the Enterprise Chamber attempted to introduce Delaware law in ABN AMRO, it unfortunately misapplied the law.  As a result, the Dutch Supreme Court had to overrule its decision; however, the possibility of adopting Delaware takeover law remains.  This Note proposes that the Dutch Enterprise Chamber adopt the Delaware takeover trilogy—Revlon, Unocal, and Unitrin—in order to provide certainty to Dutch takeover law and improve its corporate governance, which, in turn, should aid the Netherlands in attracting enterprises.  Although it is too early to know, the Netherlands may become a “European Delaware.”

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