In April and May of this year I published two blogs on the Mercon Protocol, see ‘The US-approved Mercon protocol and the Dutch courts / Part One’ at https://bobwessels.nl/blog/2024-04-doc3-the-us-approved -mercon-protocol-and-the-dutch-courts-part-one/, followed by a second blog, see https://bobwessels.nl/blog/2024-05-doc3-the-us-approved-mercon-new -protocol-and-the-dutch-court-part-two/. The full case can be taken form these two blogs.
At the moment of writing the last, Part II blog, I had not seen published the District Court of Amsterdam’s ‘response’ to the New York Court’s Order. With my Leiden colleague Ilya Kokorin we signaled five uncertainties and could image potential conflicts. I recently noticed the decision. The court notes (in its order of April 4, 2024, published June 28, 2024, see ECLI:NL:RBAMS:2024:3806) that the applicant has met the court’s objections with the April 2, 2024 version of the Protocol, as expressed by her in her decision of February 27, 2024. The court now decides (on the request for provision within the meaning of Article 379 of the Netherlands Bankruptcy Act (the WHOA part in it): ‘The court will now make the requested provision and decide that the New Protocol – the latest amended version of ‘Amended Cross-Border Court-to-Court Communications Protocol’, the JIN Guidelines and the JIN Modalities – applies to the present WHOA procedure. The New Protocol is attached to this decision and applies as inserted here , Mr. J.R. Berkenbosch, as Facilitator within the meaning of the New Protocol.’
Well, now we know the status of the case. However, I do not believe that any of the ambiguities that I mentioned in my Part II blog are covered. The court says: the New Protocol is attached to the decision and applies ‘as inserted’. Fine, but how do you do that? Did the court instruct the managemnt of the www.rechtspraak.nl site in this sense? Or did the IT guys have not been attentive? In any case, the ‘New Protocol’ cannot be found on the site. So, in a sense, a part of decision has not been published.