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Blog 2019

2019-06-doc4 The Night Watch in the Dutch courts?

Yesterday, Thursday 27 June 2019, 'Operation Night Watch' kicked off in the Amsterdam Rijksmuseum. The painting will undergo a major cleaning-up and restoration. It's last restauration was over 40 years ago, following an attack on the painting with a knife in 1975. During the Rijksmuseum’s continued monitoring program, it has been discovered that parts the Night Watch have changed over the years. The kick-off yesterday launches, open for the public, a thorough examination process to gain a better understanding of the condition of the painting and develop a the best possible treatment plan.

Although an interested bystander can visualise the the active group of persons under the command of Frans Banninck Coq depicted in the Night Watch, it is only known since 2009 that in all there are 34 people. Whilst the painting dates of 1642, only around 1653 an ornamental frame (or cartouche) was added to the painting with the names of the persons who had paid for their portait. All eighteen musketeers, including captain Frans Banning Cocq (lord of Purmerlant and Ilpendam) and lieutenant Willem van Ruijtenburch (lord of Vlaerdingen), have been listed on the cartouche, not, for example from left to right, rather according to the length of their engagement to the Civic guard (‘schutterij’) of District II of Amsterdam at that time. The painting measures 379,5 x 453,5 cm, but originally it was larger. The current painting is a shortened version of the original Night Watch. Where is that huge painting painted? Would there have been any space in what now is the Rembrandthouse. Rembrandt acquired his new house in 1639 and inhabitated the ‘… house opposite of the new Anthonis Sluys’, some five minutes walk away from the Kloveniersdoelen. This was the building for which the Night Watch was made. He probably painted the enormous canvas in a small galary or a shed in the courtyard of his house, in ‘... the Galerijtgen’. If this is correct, I am just curious whether, technically, it still can be determined.

Payments to Rembrandt

Rembrandt did not make the work for free. Over fifteen years after the delivery of the paining, in 1659, two musketeers have stated that sixteen of them each paid Rembrandt about one hundred guilders, one more than the other, depending on whether he was more or less prominently visible. They declared so at the request of Louis Crayers, a lawyer in his capacity as guardian or Rembrandt’s son Titus van Rhijn. The depositions given indicate that Titus’ guardian, apparently considered the amount due and owing to Rembrandt on the day of Saskia’s death, 14 June 1642. In his function as guardian of Titus it was important to establish the value of Rembrandt and Saskia’s estate at the time of her death. This reference time was indicative as Titus had a substantial stake in his mothers’ inheritance.

In 2019: a fake Night Watch in the Dutch courts

In March 2019, the Arnhem-Leeuwarden Court of Appeal decided in a dispute about a copy of the Night Watch. Appelant is the widow of an artist, who had nade a copy of the Night Watch by Rembrandt, based on the work that Rembrandt originally painted. As the sides and top had been partially removed over time, the copy is larger than the work exhibited in the Rijksmuseum. The copy has been exhibited since 1992 at Expo Madrid in Dalfsen. Jan van der Horst worked on it for five years. Amounts have been paid to the maker since 1992, a total of 96,000 guilders up to 2006. At the time of the artist’s death, Expo Madrid exhibited twenty-three of his paintings. These paintings were handed over to appellant after his death, with the exception of the copy of the Night Watch and a few other works after. Expo Madrid believes that it is the owner of these works, but the widow is demanding the release of these paintings and a prohibition on revelation and reproduction of the copy of the Night Watch. It forms the basis for her claims that she is the owner and joint creator of the copy.

The Court of Appeal rejects the claims. It considers that the intention was to make a true-to-life copy of the Night Watch. For the missing pieces, a photograph was used of the copy of the original composition of the Night Watch. The Court notes that the widow has not brought any images or pictures on which the work was based and therefore the court cannot compare the copy and the original: ‘The court cannot therefore determine whether the maker has given the Night Watch its own interpretation of the dog (tail between the legs or upwards), the red spots and the dark balls at the shooters, the old orange or the plug of paper, the name in the chasuble and the legs of some figures.’ The Court continues to consider that no evidence has been presented to substantiat that a faithful as possible copy as possible of the original Night Watch in its original dimensions was made. The artist signed his copy of the original Night Watch ‘… with his own name and replaced the eye of one of the figures with his own eye. The mere replacement of the name in this context does not demonstrate (free) creativity. Replacing an eye is apparently meant to adjust the color of an eye. However, the court of appeal cannot determine the visual impact of this change on the entire work, but it can be assumed that it is of insufficient importance to be able to speak of an own personal stamp of the artist’.

In the opinion of the Court of Appeal, an agreement concluded between the parties also gives no reason for restitution of the copy of the Night Watch and the other paintings. Leaving the question about ownership aside here, Dalfsen seems still the place to go to see the copy.

 

2019-06-doc3 Nieuwe druk Wessels Insolventierecht III (5e druk, 2019)

Nearly 500 pages for the most recent edition of my book Wessels Insolventierecht III 2019! Insolventierecht (Insolvency law) is a 10-volume Dutch series, which I started 20 years ago, in 1999. Presently, all the books cover over 3500 pages, analysing and commenting all typical insolvency queries Dutch courts and literature are dealing with. Last year I made a begin with the fifth edition for all the volumes, with Volume I appearing in October 2018 and Volume II, totally reworked, published early 2019. Volume III covers avoidance transactions, set-off and security rights in insolvency. I’ll continue in Dutch now.
Wessels Insolventierecht III, Gevolgen van faillietverklaring (2), 5e druk, 2019 is in juni 2019 verschenen! In mei 2018 kondigde ik op mijn blog de start van de bewerking van de gehele serie aan, zie http://www.bobwessels.nl/blog/2018-05-doc3-start-bewerking-serie-wessels-insolventierecht/. Voor trouwe gebruikers meldde ik dat er lichte wijzigingen in de opzet van de serie zijn doorgevoerd: een hechtere verankering in het burgerlijk procesrecht en het vermogensrecht, een ruimer uitzicht op toekomstige wetsontwikkelingen, aandacht voor opvattingen van nationale spelers in het veld (Recofa, Insolad), voor Europese ontwikkelingen (ELI recommendations en statements van CERIL) en de idee van een ‘deliberate public participatory drafting process’, in mijn blog van mei verder uitgewerkt. Dat heeft voor Deel III enkele zeer bruikbare commentaren opgeleverd. Voor de begeleiding van de 5e druk is een hoofdredactie ingesteld met mr dr B. Engberts, raadsheer Hof Arnhem-Leeuwarden en lid van de commissie insolventierecht, prof. mr T.T. van Zanten, partner Wijn & Stael; hoogleraar RU Groningen en mijzelf. Taak van de hoofdredactie is om de continuiteit en de kwaliteit van de serie, met inbegrip van het aantrekken van bewerkers, te waarborgen. Voor nagenoeg alle Delen zijn inmiddels bewerkers aangetrokken. Deel III is tot stand gekomen in goed overleg met en met medewerking van mr. dr. ing. A.J. Verdaas, van Ronald Verdaas Advocatuur (Utrecht) en Onderzoeker, Onderzoekcentrum Onderneming & Recht, Radbout Universiteit.
Nu het boek zelf.
Wessels Insolventierecht III 2019 bevat een gedetailleerd commentaar op de art. 42-60 Faillissementswet. De belangrijkste onderwerpen in dit deel zijn de vernietiging van vóór faillissement verrichte rechtshandelingen uit hoofde van art. 42 e.v. (actio pauliana) en de rechtsgevolgen van een dergelijke vernietiging, de problematiek van verrekening ter gelegenheid van faillissement (art. 53-56), de regels ten aanzien van de positie van separatisten, in het bijzonder pand- en hypotheekhouders (art. 57-59a), en de schuldeiser die een retentierecht heeft (art. 60). Enkele vraagstukken die met deze onderwerpen samenhangen krijgen ook aandacht. Te denken valt aan de toepassing van de pauliana bij concernfinanciering en sterfhuisconstructies en – naast de actio pauliana – aan andere acties die de curator tot zijn beschikking kan hebben en die tot vermeerdering van de boedel kunnen leiden, zoals de toepassing van bijzondere nietigheidsacties voorvloeiend uit Boek 2 BW, inclusief bijzondere regels inzake schuldeisersbescherming, en de regeling van de bestuurdersaansprakelijkheid ex art. 2:138/248 BW. Bij de toepassing van de zekerheidsrechten gedurende faillissement is ingegaan op de Separatistenregeling, de regeling van de omzetbelasting bij het uitoefenen van verhaal en het fiscaal voorrecht en bodemrecht, met inbegrip van de met ingang van 1 januari 2013 versterkte positie van de fiscus. De meest recente literatuur is weer verwerkt en veel nieuwe rechtspraak, verschenen na de afronding van de vorige druk, aan de tekst zijn toegevoegd. Dat maakt dit boek tot een uiterst actuele uitgave die iedere in faillissement gespecialiseerde jurist zou moeten lezen. De verwerkte rechtspraak en literatuur zijn bijgewerkt tot medio maart 2019.
Voor produktinformatie: https://www.wolterskluwer.nl/shop/boek/gevolgen-van-faillietverklaring-2-/NPGEVFAI2-BI19001/

2019-06-doc2 Rembrandt studied in Leiden in 1620. But also in 1622?

'I doubt you will find any new document on Rembrandt, as all written documents, all notarial deeds, all registrations, all shreds of evidence on any aspct of his life is known and docemented', an American art historian and Rembrandt specialist told me a year and a half ago. In science you never can predict: this week (on 4 June 2019) all Rembrandtonians were amazed as a previously unknown document about Rembrandt’s life as a student at the University of Leiden became public.  A Leiden University registration in 1620 was known, but now another registration has been found in the University’s archives relating to 1622. Exciting news, therefore, also for a study I am in the process of writing: Rembrandt. His legal and financial life (working title), see http://www.bobwessels.nl/blog/2017-11-05-rembrandt/
So, what’s the state of affairs?
Rembrandt, born on 15 July 1606, is enrolled at the University of Leiden on 20 May 1620 as an art student (‘litterarum’ or in present Dutch ‘letteren’).(1) The proof of this registration can be found in the University of Leiden Library, the so-called The Catalog Studiosorium, ie the original registration book of the university of that time. It reports in Latin on 20 May 1620: ‘Rembrandus Hermanni Leydensis Studiosus litteraturum annorum 14 apud parentes’, which means that the 14-year-old art student Rembrandt, son of Harmen, lives with his parents in Leiden.(2) The author of the relevant page on the University’s website submits that in all likelihood the registration takes only one year: ‘And the question is whether the then fourteen-year-old Rembrandt – a registration age that occurs frequently at that time – actually attends lectures. Did he sometimes register with additional benefits such as duty-free beer and exemption from duty at the militia?'.
Van de Wetering notes that registration at the University may have been done for tax reasons.(3) It is reported that, to attract students in Leiden in these days, students had the right each year to buy tax-free 194 liters of wine and ten wooden casks of beer, around 1500 liters.(4) As to the suggested exemption for militia duties concerned, Schwartz elaborates that an exemption from civil patrol (‘schutterij’) duty may have been the most important reason. Rembrandt’s father himself, in 1611, had been placed on an inactive list from the Leiden Civic Guard, because of an accident in the mill (the misfiring – ‘door ‘t affspringen’ – of a musket). Although being recovered from the injury, he was unable to use his hands for handling a gun. Also Rembrandt’s older brother Gerrit had suffered an accident and was disabled on both hands.(5) Taking into account that the Twelve Years’ Truce was nearing its end and the Leiden Civic Guard had to act against remonstrants mercenaries (‘waardgelders’) as well as other accidents in the family, this may have been a very good reason – so Schwartz – for Rembrandt ‘… to use his knowledge of the Latin language to pocket an exemption’.
Be it as it is, in 1620 no University for Rembrandt, but an apprenticeship with a professional painter. Literature follows the suggestion made by Rembrandt’s first biographer, Orlers, in 1641. He observes that Rembrandt’s parents were compelled to take him out of school prematurely and, at his own request, he was to be apprenticed to a painter from whom he would learn the basic foundations and principles of this, ie painting (‘… de eerste fundamenten ende beginselen van dien.’). Rembrandt by then is around 14 years of age. His biographer reaches a logical conclusion: ‘As a result of this decision they took him to a good painter (‘welschilderende’), Mr. Jacob Isaacxsz. Van Swanenburgh, to be instructed and taught by him’.(7)

And now, a new document has been discovered about Rembrandt’s student years in Leiden.(8) On the website, it is explained that students in Leiden had to rematriculate every year. Rematriculations were recorded in student registers (‘recensielijsten’). The student register of 1622 (no offering specific dates) is the only student register to have been preserved in the archive of the University Library for the years 1608-1649. The website describes that on the document found, Rembrandt’s name again occurs as: ‘Rembrandus’, with underneath: ‘* 14 15 Hermanni bij sijn ouders’ (Harmensz., living with his parents), with 14 crossed-out.(9)

The website notes that a new source has become available for reconstructing Rembrandt’s early years in Leiden, from 1606 till (around) 1632, when he went to Amsterdam. The website continues: ‘His rematriculation in 1622 is evidence that he was at least enrolled for two years, and possibly even longer. How serious a student Rembrandt was, is something which the historical matriculation and rematriculation documents held by the University Library cannot tell us. It makes it clear, however, that his time at Leiden University was more significant to the painter than was first assumed’. The website further suggests that the document, which is being kept at the University Library, ‘… proves that Rembrandt studied at Leiden University for longer than has always been assumed’. Hmmm. Enrolling for 1620 and 1622 does not say anything about 1621 (assuming that a meaningful ‘academic’ period equaled a year), nor whether Rembrandt may have been – what the Dutch sometimes call – an evening-student (‘avondstudent’). And what about the beer, the wine and the military duties?
What it clear is that the Leiden University Library has found a Rembrandtonian treasure, whilst marking the 444 years of Leiden University.

Notes:

(1) Bikker (2019), 17, provides as date of registration 16 May 1620.

(2) http://nieuws.leidenuniv.nl/nieuws-2014/rembrandts-sporen-aan-de-universiteit-leiden.html. See also RD 1620/1. This Catalog also is named ‘volumen inscriptionum’ and covers 1618-1631, the register of all matriculations by Leiden students for that period. Rembrandt was registered by rector Reinerus Bontius (Reinier de Bondt), professor in medical science. Counting back, being 14 years of age on 20 May 1620, with a birthday being 15 July, his year of birth must have been 1605, see Schwartz (2006), 15, adding for his book that many other ‘facts’ have their soft side.
(3) Van de Wetering (2017).
(4) Büttner (2014), 18.
(5) See RD 1621/1. Schwartz (1984) suggests that the cause was an accident with muskets in the unregulated Leiden militia. It also could have been an accident in the mill.
(6) See RD 1611/1.
(7) Van Swanenburg’s art studio and workplace was located at what now is the Langebrug 89 in Leiden, presently housing the Young Rembrandt Studio, which includes a seven minutes video mapping, to explain Rembrandt’s life and work in Leiden.
(8) See https://www.universiteitleiden.nl/en/news/2019/06/document-discovered-about-rembrandts-student-years-in-leiden. Rembrandt's age therefore remains a soft fact.
(9) The archive document on the rematriculation of ‘Rembrandus’ in the Volumen recensionum from 1622 (ASF 30) is displayed on the website.
Requests for a list of relevant literature can be made via info@bobwessels.nl

 

2019-06-doc1 Soft law instrumentst in insolvency/restructuring law

Soft law instruments are increasingly prevalent in the area of procedural and substantive restructuring and insolvency law. These instruments, all embodied in legally non-binding texts, originate from so-called standard-setting organisations, such as the United Nations Commission on International Trade Law (UNCITRAL) Working Group V (Insolvency) and the World Bank, as well as mainly insolvency practitioners’ organisations, such as INSOL International and INSOL Europe. Ambiguity of what they are and how they impact hard law has blurred the actual role that these soft law instruments have. This raises questions of how soft law instruments can be (legally) characterized, what advantages and disadvantages they have (compared to hard law), and how legislators and policy makers in the field of restructuring and insolvency make use of them. With my co-author Gert-Jan Boon we try to answer these questions.
The vague nature of soft law instruments is a general impediment for practitioners and scholars to consider its relevance. Still, in recent years, legislators and policy makers have given particular attention to such instruments, especially in the area of restructuring and insolvency. In both the European Insolvency Regulation Recast (EIR 2015) and the proposal for a Preventive Restructuring Directive, the EU legislator makes explicit reference to soft law instruments. But, also, the Dutch Vereniging insolventierecht advocaten (INSOLAD) and the Dutch national consultative body of supervisory judges in bankruptcy and suspension of payment cases (Recofa) have set soft law standards for practice.
To highlight the rise and impact of soft law instruments, we will explore the meaning and development of soft law instruments in restructuring and insolvency law. From this analysis we observe that soft law instruments are relevant, also in practice, as they are used for example by insolvency practitioners, policy makers and courts. The growing group of standard-setting organisations focuses on specific topics, for convergence of law and practice, including cooperation and communication by judges and insolvency practitioners in cross-border insolvency cases, as well as issues pertaining to (preventive) restructuring of distressed companies.
This article is structured as follows: in part two we will introduce the concepts of soft law and standard-setting organisation, in part three this will be related to the field of international restructuring and insolvency law by elaborating on instruments in this area, which is elaborated in part four with an overview of the relevant instruments on cooperation and communication and on restructuring distressed businesses. In part five we discuss various advantages and disadvantages of the use of soft law instruments. Subsequently, in part six, we discuss several examples in order to review the impact that soft law instruments in restructuring and insolvency have. This is followed by a conclusion in part seven.
The final version of this paper (wriiten in English) has been published in (the Dutch law review, called) Tijdschrift voor vennootschapsrecht, rechtspersonenrecht en ondernemingsbestuur (TvOB) 2019-2.

Suggested Citation:
Wessels, Bob and Boon, Gert-Jan, Soft law instruments in restructuring and insolvency law: exploring its rise and impact (February 1, 2019). Tijdschrift voor vennootschapsrecht, rechtspersonenrecht en ondernemingsbestuur 2019-2, 20 pp. Available at SSRN: https://ssrn.com/abstract=

 

2019-05-doc6 Too-Big-To-Fail reforms to be evaluated

Last week, the Financial Stability Board (FSB) announced it is seeking feedback from stakeholders as part of its evaluation of the effects of the too-big-to-fail (TBTF) reforms for banks that were agreed by the G20 in the aftermath of the global financial crisis. The evaluation aims to assess whether the implemented reforms are indeed reducing the systemic and moral hazard risks associated with systemically important banks (SIBs). A second aim is to examine the broader effects of the reforms to address TBTF for SIBs on the overall functioning of the financial system. The G20 launched a comprehensive programme of financial reforms to increase the resilience of the global financial system, while preserving its open and integrated structure. With the post-crisis reforms nearly complete and their implementation well under way, the FSB's position is that an analysis of the effects of these reforms is becoming possible. To that end, the FSB published in July 2017 a framework for the post-implementation evaluation of the effects of the G20 financial regulatory reforms. For the feedback on the May 2019 announcement a working group has been set up, chaired by Claudia Buch (Vice-President Deutsche Bundesbank). The feedback more particularly addresses the following issues:
1. To what extent are TBTF reforms achieving their objectives as described in the terms of reference? Are they reducing the systemic and moral hazard risks associated with SIBs? Are they enhancing the ability of authorities to resolve systemic banks in an orderly manner and without exposing taxpayers to loss, while maintaining continuity of their economic functions? What evidence can be cited in support of your assessment?
2. Which types of TBTF policies (e.g. higher loss absorbency, more intensive supervision, resolution and resolvability, other) have had an impact on SIBs and how? What evidence can be cited in support of your assessment?
3. Is there any evidence that the effects of these reforms differ by type of bank (e.g. global vs domestic SIBs)? If so, what might explain these differences?
4. What have been the broader effects of these reforms on financial system resilience and structure, the functioning of financial markets, global financial integration, or the cost and availability of financing? What evidence can be cited in support of your assessment?
5. Have there been any material unintended consequences from the implementation of these reforms to date? What evidence is available to substantiate this?
6. Are there other issues relating to the effects of TBTF reforms that are not covered in the questions above and on which you would like to provide your views? Please substantiate your comments with evidence.
Feedback, including evidence in support of the responses, is to be submitted by 21 June 2019 to fsb@fsb.org under the subject heading “TBTF evaluation”. Provided responses will be published on the FSB’s website (www.fsb.org) unless respondents expressly request otherwise. The feedback (expeced in 4 weeks) will be considered by the FSB as it prepares the draft report, which will be issued for public consultation in June 2020. The final report will be published in some 18 months from now, late 2020.