At an appeal hearing in November 2025, the Amsterdam Court of Appeal was asked to decide on a conflict between Dutch law firm NautaDutilh and Croatian shipbuilding company Brođograde Industrija Split Dioničko Društvo (Brodosplit). Claims are pending between the parties. In ordinary civil proceedings in the Netherlands, NautaDutilh filed a claim for performance for payment against Brodosplit, based on an agreement. This claim was granted. Brodosplit, in turn, filed counterclaims, partly related to NautaDutilh’s claim in the original proceedings. Brodosplit is claiming damages based on alleged professional misconduct by NautaDutilh and has also filed a claim for the production of documents. Brodosplit’s claims were dismissed by the first instance court. The claims filed by both parties are part of the legal dispute in the Dutch appeal. The substantive points of the confrontation between the two parties have not been provided.
The crux of the matter is that, in a May 2025 judgment, the District Court of Zagreb in Croatia opened pre-bankruptcy proceedings (predstečajni postupak) against Brodosplit. The question is what the consequences are for these proceedings pending before the Court of Appeal in the Netherlands. In short, Brodosplit seeks a stay of proceedings regarding the claim filed by NautaDutilh until the final judgment in the Croatian pre-bankruptcy proceedings is issued. Regarding the consequences of the pre-bankruptcy proceedings for the claims filed by Brodosplit against NautaDutilh, Brodosplit has deferred to the appeal court’s judgment. NautaDutilh does not seek a stay of proceedings. The law firm wishes to continue them.
The European Insolvency Regulation (recast) (EIR 2015) naturally points the way here. The Amsterdam Court of Appeal in January 2026 that the opening of the Croatian pre-bankruptcy proceedings had no consequences for the progress of the ongoing proceedings, so proceedings must continue. The Court of Appeal explained that Croatian law is the applicable law to the insolvency proceedings and their effects, under Article 7(1) of the EIR. Dutch law, on the other hand, is decisive for the answer to the question of whether the legal proceedings pending in the Netherlands have been stayed or can be stayed, and whether the proceedings should be taken over, in whole or in part, by a foreign insolvency practitioner (see Article 7(2)(f) and Article 18 EIR, in relation to the effects of insolvency proceedings on pending lawsuits or arbitral proceedings). Applying the Dutch suspension arrangement under the Netherlands Bankruptcy Act does not lead to a full or partial suspension of the proceedings and/or takeover by a foreign insolvency practitioner, according to the court.
What kind of procedure is the Croatian predstečajni postupak? The court ruled it is a pre-bankruptcy procedure listed in Annex A of the EIR. The court added: “The submitted judgment of the Croatian court, the authenticity of which, and the accuracy of the informal English translation submitted, has not been disputed, so the court also assumes this shows that the Brodosplit pre-bankruptcy procedure was opened on May 19, 2025, and that [X] was appointed as the pre-bankruptcy trustee”.
This is all rather confusing. Annex A, to which the court refers, only contains a “Stečajni postupak”, and only in 2017 were two insolvency proceedings added at the request of Croatia: “predstečajni postupak”, and “postupak stečaja potrošača”. Note however, that this has been done in a separate regulation, changing the original Annex A. Annex B, which lists “insolvency practitioners”, originally consisted of four national Croation names for such persons. The parties agree that “X” is a “pre-bankruptcy trustee”.
Given the importance of the Annexes, I would expect the parties to specify more precisely which procedure is involved. After all, such a proceeding is automatically recognised throughout the European Union. Alternatively, I would expect the court to ask more targeted questions. But perhaps this has already happened in an earlier ruling. Although all names of “insolvency practitioners” (some 130 of those persons in all member states presently) are listed on a single Annex B, their rights and duties differ quite substantially. For instance, for the Netherlands, the term “restructuring expert” has been translated (in Dutch, with my translation into English): “restructuring expert in a public restructuring proceeding outside insolvency liquidation”. It is a person appointed by the court who can present a plan to (some of) the debtor’s capital providers (prepare, put to the vote, and propose approval).
Annex B also lists the Dutch “observator” in such public restructuring proceedings outside insolvency liquidation. The “observer” is a person appointed by the court with the task of monitoring the construction of the plan and taking into account the interests of the joint creditors. The court can appoint an observer on its own initiative or at the debtor’s request. For example, the court appoints an observer on its own initiative in the event of a cross-class cramdown. Annex B does not say much about the powers that a person placed on the list has. All are “insolvency practitioners” in the meaning of Article 2(5) EIR.
The Amsterdam Court of Appeal faced a similar ambiguity regarding the powers of the Croatian insolvency practitioner. Gaining insight into the case relies heavily on the parties’ submissions. Based on the judgment of 19 May 2025, and the explanations provided by the parties, the court says that it “must be assumed” that the proceedings opened in Croatia are pre-bankruptcy proceedings aimed at restructuring the debtor’s assets. The court said the aim of the pre-bankruptcy proceeding is not the liquidation of Brodosplit or the winding up of its assets. Certain claims can be filed in the pre-bankruptcy proceedings, and a restructuring plan must be developed. A restructuring plan accepted by the creditors can be approved by the court, thus allowing for a judicial agreement. During the pre-bankruptcy proceedings, as the court understands it, the debtor retains, in principle, the power to dispose of obligations arising from the situation prior to the pre-bankruptcy proceedings. The “pre-bankruptcy trustee” is granted certain approval rights. However, again, it “must be assumed” that under Croatian law Brodosplit is not limited in its ability to act as a party in the proceedings.
Based on Article 7(2)(f) in conjunction with Article 18 EIR, it has been established that Dutch law alone is decisive in determining whether the legal proceedings pending in the Netherlands have been suspended or can be suspended, and whether the proceedings should be taken over, in whole or in part, by a foreign insolvency practitioner. The court “assumes” that the legal proceedings pending before it relates to goods and/or rights that form part of the opened pre-insolvency estate. This finding does not seem correct to me, because the court indicated that the Croatian proceedings are not proceedings that will lead to the liquidation of Brodosplit or the winding-up of its assets. A preventive restructuring framework (a restructuring plan) does not aim for the efficient realisation of an insolvency estate, as in such a proceeding there is no “estate,” as restructuring plans focus solely on the debtor’s liabilities. Also on this point, the regulatory framework of the EIR, developed for insolvency proceedings with a focus on the efficient realisation of the insolvency estate, is hardly suitable for restructuring proceedings.
Dutch insolvency law only provides rules for the consequences of insolvency proceedings during pending proceedings in bankruptcy and in proceedings concerning a suspension of payments. This leads to a debtor losing control and disposition due to the opening of insolvency proceedings. The court notes the contrast. The pre-bankruptcy proceedings opened in Croatia did not, however, result in Brodosplit losing control and disposition of the legal actions pending in the Netherlands concerning assets and/or rights that form part of the estate. Furthermore, the Croatian insolvency practitioner has no power of administration or representation with regard to the pending legal actions. Moreover, the pre-bankruptcy proceedings are also not intended to liquidate Brodosplit or its assets. For this reason, the Amsterdam Court of Appeal ruled that Dutch regulations cannot, in whole or in part, lead to a suspension of the proceedings. Nor should the proceedings, in whole or in part, be taken over by the Croatian pre-bankruptcy trustee.
In short, the Annex system of the EIR 2015 remains difficult to understand and to apply. Instead of “assuming,” the court could more strictly instruct parties to submit additional evidence to support their views. In my view, this responsibility would primarily rest with the legal representative in the Croatian proceeding. Consultation and agreement between parties to handle a case in a less formal manner can be a great asset, but ultimately, it boils down to applying traditional insolvency liquidation rules of the EIR to pre-insolvency matters. This is ultimately a clear example of the unsuitability of the EIR for pre-insolvency restructuring processes, even if it is certain that the proceedings are listed on Annex A. In any case, the Amsterdam ruling makes it clear that the reliable degree of predictability and certainty of the cross-border effectiveness via the EIR system of rules is severely tested with “pre-insolvency” restructuring plans.
References
Gerechtshof Amsterdam 27 januari 2026, ECLI:NL:GHAMS:2026:181.
On amending Annex A, see https://bobwessels.nl/blog/2017-09-doc5-on-annex-a-of-the-insolvency-regulation/
This is a slightly adapted version of a regular column Bob Wessels is writing for Global Restructuring Review (GRR) on the topic of cross-border restructuring and insolvency in a European context. GRR is a subscription-only publication and the column appeared in GRR on April 3, 2026. See www.globalrestructuringreview.com.