> Wsifran Chise Blog - Private Law - wsifranchise.info http://wsifranchise.info en j.d.maaskant@law.leidenuniv.nl Copyright 2017 2017-03-23T13:38:00+00:00 Revised General Banking Conditions: standard terms and conditions for Dutch banks - wsifranchise.info http://wsifranchise.info/articles/revised-general-banking-conditions-standard-terms-and-conditions-for-dutch http://wsifranchise.info/articles/revised-general-banking-conditions-standard-terms-and-conditions-for-dutch#When:13:38:00Z With the General Banking Conditions 2017, the relationship between banks in the Netherlands and their customers has entered a new dimension. The new conditions are more consumer-friendly and there is more emphasis on a bank’s duty of care.]]>

As of 1 March 2017, all banks in the Netherlands use new standard terms and conditions in their relations with customers: the General Banking Conditions 2017 (Algemene Bankvoorwaarden 2017, the “GBC 2017”). The GBC 2017 address the customer directly, use plain language and simple words, and contain many examples of actual situations. The GBC 2017 reflect the stringent duty of care that banks are required to take into account when dealing with customers and are more consumer-friendly than the previous GBC.

All banks in the Netherlands use the same standard terms and conditions to document the overall relationship between the bank and its customer: the GBC (previously the GBC 2009). The GBC are general in the sense that all transactions between a bank and its customers are subject to the GBC. Moreover, they are applicable to consumer clients and business clients alike and they are used by all banks that are a member of the Netherlands Association of Banks (Nederlandse Vereniging van Banken, NVB), which are effectively all banks and all branches of foreign banks established in the Netherlands. Thus the GBC form the very foundation of the relationship between a bank and its customers.

Since 2009 there have been social, technical and legal developments that have made a revision necessary. Reference is made in this connection to the global financial crisis, internet banking, European legislation such as MiFID and the PSD2, and case law on the mis-selling of financial products. The GBC 2017 were drawn up in close consultation with consumer organisations and business sector organisations representing both large corporates and SMEs. Consequently, although a particular provision of the GBC 2017, such as the provision on the right of set-off, could still be challenged in court by an individual consumer or an individual SME on the ground that it is unreasonably onerous, the consumer organisations and the business sector organisations have forfeited this option. Whether the customer is bound by the GBC 2017 is dependent on whether the customer has explicitly or implicitly accepted the GBC 2017. It could also be that the customer has accepted a previous version of the GBC and has thus bound itself to future changes thereto. In practice, banks in the Netherlands are seldom prepared to disapply the GBC or certain provisions thereof.

Compared to the GBC 2009, the GBC 2017 have been simplified as much as possible, to ensure that a customer who lacks higher education is able to understand them. Furthermore, Article 1 of the GBC 2017 explicitly provides that a provision in the conditions for a specific product that is contrary to the GBC prevails over the GBC, but that that provision can never adversely affect the rights and protection granted to consumers under the GBC. Article 2 states that the bank has a duty of care towards the customer and shall take into account the customer’s interests to the best of its abilities. What is likewise new is that Article 2 also imposes a duty of care upon the customer. The customer must exercise due care towards the bank and take the bank’s interests into account to the best of its abilities. The customer may only use the services or products of the bank for their intended purpose and may not misuse them or cause them to be misused. Pursuant to Article 3 the customer is obliged to provide the bank with information about its activities and objectives and how it has acquired the funds, securities or other assets that it has deposited with or through the bank. Pursuant to Article 5, the bank is allowed to engage third parties and outsource activities. However, if it does so in the performance of an agreement with the customer, the bank remains the customer’s point of contact and contracting party. The above does not detract from the fact that the key provisions of the GBC 2009 have remained unchanged as a matter of substance. For example, the provisions dealing with the bank’s records, its right of pledge and set-off, the obligation of the customer to provide adequate security to the bank upon the bank’s request, the governing law, and the court having jurisdiction. These provisions have been redrafted in simpler wording, but their content has remained the same.

]]>
Private Law, 2017-03-23T13:38:00+00:00
Cable retransmission within reception area copyright free?! - wsifranchise.info http://wsifranchise.info/articles/cable-retransmission-within-reception-area-copyright-free http://wsifranchise.info/articles/cable-retransmission-within-reception-area-copyright-free#When:07:30:00Z A recent decision by the Court of Justice of the EU might imply that cable operators no longer have to pay for cable retransmission within the reception area of the original broadcast because there is no ‘new public’.]]>

Is cable retransmission within the reception area of the original broadcast copyright free? In a ruling on March 16 2017 the Court of Justice of the EU seems to answer this question in the affirmative. If this is indeed the case, it constitutes a new ‘game changer’. It implies that there would no longer be a need to pay for the cable retransmission of national television programmes from for example the Dutch national public broadcaster NPO and the commercial broadcasters RTL and SBS.

According to the Court of Justice of the EU, there is no copyright-relevant ‘communication to the public’ in the case of ‘simultaneous, full and unaltered transmission of programmes broadcast by the national broadcasting corporation, by means of cables on national territory […] provided that it is merely a technical means of communication and was taken into account by the author of the work when the latter authorised the original communication’. In this case, according to the Court, there is no ‘new public’, and therefore no copyright-relevant communication which requires separate permission from the rightholders.

In the early 1980s, the Dutch Supreme Court (Hoge Raad) ruled that in the case of cable retransmission within the reception area, there is a ‘communication to the public’. The Dutch Supreme Court decided that a ‘new public’ was not required; the only thing that mattered was if there was another ‘organization’ involved, for example the operator of a central antenna installation. Later, the copyright status of cable retransmission was codified in a separate EU Directive.

In recent years the Court of Justice has introduced the ‘new public’ criterion again, but reframed the criterion and explained that in most cases there is a ‘new public’. In cases of cable retransmission or broadcastsin hotels, cafes, spas and rehabilitation centres, there is always a ‘new public’ that was ’not taken into account by the author of the work when the latter authorised the original communication’.

Internet retransmission of a TV signal within the reception area of the original broadcast was, according to the Court, relevant to copyright anyway because this was a different transmission technology. Whether or not a new public is reached would be irrelevant here.

But now suddenly the Court of Justice of the EU has found that people in Austria who just watch the public service channel via cable, have already been taken into account in the satellite and terrestrial broadcast, and therefore no permission or payment is required for this type of transmission. This is an understandable argument in itself, but it is certainly contrary to what has been assumed in the legislation and case law over the past twenty to thirty years. The ‘other technique’ of cable retransmission is apparently irrelevant.

The European Court of Justice decided in this case without the opinion of the Advocate-General in a small chamber, so maybe it is a slip. If not, this could be a real game changer in the area of audio-visual copyright.

CJEU 16 March 2017,  ECLI:EU:C:2017:218, (AKM/Zürs.net)
CJEU 7 March 2013, ECLI:EU:C:2013:147, (ITV/TVCatchup)
HR 30 October 1981, NJ 1982, 435 (CAI Amstelveen I)
HR 25 May 1984, NJ 1984, 697 (CAI Amstelveen II)

]]>
Private Law, 2017-03-22T07:30:00+00:00
Bathroom wars and the role of agency in gender identity - wsifranchise.info http://wsifranchise.info/articles/bathroom-wars-and-the-role-of-agency-in-gender-identity http://wsifranchise.info/articles/bathroom-wars-and-the-role-of-agency-in-gender-identity#When:08:50:00Z Bathroom access has become the new battle ground for LGBT rights in America. In finding a resolution, judges and lawmakers should not overlook the role that agency can play in empowering children to express their gender identity.]]>

The war over bathroom access raged on in America last week when the Trump administration announced it would not support the right of students to use bathrooms corresponding with their gender identity in public schools. The three-page letter issued by the Department of Justice and the Department of Education rescinded a May 2016 guidance note from the Obama administration, in which transgender students were protected from discrimination on the basis of gender identity. The 2016 Obama guidance note had instructed education providers to interpret sex discrimination to include ‘discrimination based on a student’s gender identity,’ and had made it a condition for schools receiving Federal funds to ‘not treat a transgender student differently from the way it treats other students of the same gender identity.’ The Trump letter queried the legal basis for such an interpretation citing pending litigation, and instead deferred to local school districts and States to establish their own bathroom access policies.

Access to sex-segregated bathrooms has emerged as the new battleground for LGBT rights in America. Immediately following the Obama administration’s guidance note in May 2016, twelve States challenged its legality and an injunction was granted on 21 August 2016 by a Federal Court in Texas halting its implementation. Currently, twelve States have introduced draft legislation to restrict transgenders access to sex-segregated restrooms, locker rooms and other facilities by defining ‘gender’ as biological sex alone. The Supreme Court will hear a case on this issue later this month, involving a seventeen-year-old transgender student from Virginia, Gavin Grimm, who was barred from using the boys bathroom in his Gloucester County high school in the fall of 2014. Grimm sued the Gloucester County Education Board and is now asking the Supreme Court to decide whether he has the right to use bathrooms and locker rooms corresponding to his gender identity. Legally, the Court must determine whether the prohibition against ‘sex discrimination’ under Title IX of the Education Amendment (1972) Act should be interpreted to include discrimination on the basis of gender.  

Putting aside for a moment these legal battles, an important yet overlooked issue in this debate is the role that discrimination can play in undermining transgender children’s agency over their gender identity. Recognizing a child’s evolving capacity and agency is the cornerstone of children’s rights. It is codified under the UN Convention on the Rights of the Child in article 5 and article 14 and embedded in article 12. The UN Committee on the Rights of the Child has defined ‘evolving capacities as an enabling principle that addresses the process of maturation and learning through which children progressively acquire competencies, understanding and increasing levels of agency to take responsibility and exercise their rights.’ Though the United States of America remains the one country in the world not bound by the treaty provisions of the UN CRC, the principles of evolving capacity and agency are not without resonance in domestic law in America. According to leading US child rights scholar Barbara Bennett Woodhouse in Hidden in Plain Sight, the agency of children has long been recognized and acted upon in American history, and it continues to be acknowledged in jurisprudence and under some Federal and State laws.

The intersection between discrimination and agency, indeed the role that discrimination can play in undermining an adolescent’s right to exercise control over his or her own gender identity has not been fully explored or contemplated in the battle over bathroom access for transgender students in America. For a transgender adolescent, this is not just about using a bathroom, or even being protected from harassment and bullying at school (though these are obviously important concerns), it is about something more visceral: the right to exercise control over one’s very identity – to be who you want to be – and to have that identity recognized and supported by your community and peers. 

A law or policy that constrains an adolescent’s transgender identity or questions the veracity of such a gender identity is effectively saying to a transgender child that your right to be who you are is not acceptable, and thus not recognized or supported by your community and peers. For a transgender child, the act of asserting their gender identity is likely a decision fraught with emotion, requiring enormous courage and strength. For many adolescents, it is the first time they are coming to terms with their gender identity, while for others, it means standing up to family members and challenging values within their religion or community. A law or policy that does not recognize these challenges can have a devastating impact on a child – not only in respect of their emotional well-being but also in regards to their long-term development.

The suicide rate among transgender persons is nine times higher than in the general population of America. Almost two thirds (63%) of respondents in a recent national Transgender Study admitted to attempting suicide at least once in their lives prior to reaching 18 years of age (34% attempted suicide under the age of 13 years while 39% were between 14 and 17 years). Seventy-seven per cent of transgender students who attempted to openly express their gender identity in school reported being victims of abuse, violence or harassment: 54 per cent were subjected to verbal harassment; 52 per cent were actively prevented from expressing their gender identity; 24 per cent were physically attacked; and 17 per cent had to leave school as a result of the mistreatment they faced.

As the battle over bathroom access rages on in America, it is important that judges and lawmakers do not relegate this complex issue to a legal debate on a singular point of law. Of course, it is necessary and worthwhile to clarify whether ‘sex discrimination’ should include discrimination on the basis of gender. However, the interaction between discrimination and agency must also be better acknowledged and further explored. The real-life consequences that transgender adolescents are forced to face every day when they are undermined in their agency to control their gender identity deserves more discourse. All too often, transgender adolescents are framed as victims of discrimination, harassment and violence, rather than active agents forging their own unique gender identity. If we want to end the mistreatment of transgender adolescents, more needs to be done to understand, respect and recognize the courage of transgender youth and the role that agency can play in empowering these children to assert control over their own gender identities. 

]]>
Private Law, 2017-03-06T08:50:00+00:00
Hundreds of euros for one small photo - wsifranchise.info http://wsifranchise.info/articles/hundreds-of-euros-for-one-small-photo http://wsifranchise.info/articles/hundreds-of-euros-for-one-small-photo#When:07:58:00Z The common practice of reproducing photos on websites that are taken from internet without crediting the source is resulting in huge costs for those who underestimate the consequences.]]>

It is common practice that photos that are found somewhere on the internet are published on a website without crediting the source. Many private individuals and businesses are unaware that this is not allowed or they underestimate the consequences. That can be a very expensive mistake. The search engines nowadays used by rightholders have become so effective that basically every photo can be traced. Even if such a photo is removed from the website at the rightholder’s first request, the website owner is liable for compensation to the amount of hundreds of euros. If he refuses to pay, he runs the risk of a decision by the subdistrict court, in which the judgment on damages might be slightly lower but it will include an order to pay the full costs of the proceedings of up to several thousands of euros. Subdistrict court judgments to this effect are increasing. And there are many more amicable settlements, some with confidentiality clauses, that remain below the radar. The enforcement of copyright regarding photos on the internet has become a profitable business model for some photographers and their lawyers.

Using a photo on a website without the permission of the rightholder is not allowed, especially not without referring to the source. If the source is mentioned and the author is correctly named, the use of the photo might be qualified as a legally permissible citation, but only if its use is functional and subordinate. Usually, however, source and attribution are lacking, in which case there can be no question of a permissible citation. A subdistrict court judge therefore has no other option than to rule that it constitutes copyright infringement. Even if the photo has been removed from the website at the first request. Subsequently, damages to the amount of several hundreds of euros will be awarded, in some cases at a rate of 25 to 200% above the base rate due to the absence of a proper reference to source or name, to cropping the photo or to loss of exclusivity.

In copyright cases it is mainly the order to pay the full costs of the proceedings that results in people, often without legal representation and claiming unmeritorious defences, having to pay a lot of money. Lawyers who do have the proper knowledge of copyright laws reluctantly have to advise their clients settle claims for hundreds of euros and to advise their clients to be more careful in the future.

So my advice to you is do not re-use a photo taken from the internet on the internet, because it might cost you hundreds of euros.

Sources:

  • ECLI:NL:RBROT:2017:1143
  • ECLI:NL:RBAMS:2017:318
  • ECLI:NL:RBDHA:2016:15985
  • ECLI:NL:RBDHA:2016:15983
  • ECLI:NL:RBMNE:2016:5518
]]>
Private Law, 2017-02-27T07:58:00+00:00
The logic of harmonisation of insolvency law in the EU - wsifranchise.info http://wsifranchise.info/articles/the-logic-of-harmonisation-of-insolvency-law-in-the-eu http://wsifranchise.info/articles/the-logic-of-harmonisation-of-insolvency-law-in-the-eu#When:08:30:00Z Harmonisation of restructuring and insolvency laws in the EU. Weighing its pros and cons. ]]>

In November 2016, the European Commission published its ‘Proposal for a Directive of the European Parliament and of the Council on preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge procedures and amending Directive 2012/30/EU’. See my blog Proposal for a Restructuring Directive. The proposal has caused much discussion, see the blog Wanted: judges with experience in international commercial insolvency practice! I noticed that some were surprised: harmonisation in insolvency law in the EU? Is that possible? I think it is.

First of all, some fifty years ago a general trend in the convergence of corporate law issues took root. Some thirteen or so directives on corporate structure moulded our corporate law system. In addition, renewed rules on accounting and reporting, increased attention for rules regarding the integrity of corporate directors, elements of implemented good governance systems, are just some characteristics of 21st century commercial and corporate law in almost all well-developed European countries.

In the past decade a general trend of convergence in Member States’ insolvency law frameworks has emerged. Many European countries have come to understand that the existing legal framework did not meet the challenge to achieve economic results that are potentially better than those that might be achieved under liquidation. Thus rules have been introduced to preserve and potentially improve a company’s viable business. In recent years substantial revisions have taken place in nearly all EU states. See a comparative study conducted under the leadership of Leeds University.

Although even the more recent insolvency laws in several European countries continue to show substantial differences in underlying policy considerations, in structure and in content of these laws, in most of these jurisdictions there is an openness towards ‘corporate rescue’ procedures, as an alternative to plain liquidation procedures. In many of these countries the US Chapter 11 procedure has served as a model for legislatures. Generally, these are based on the principle of a composition or an arrangement concluded between the insolvent debtor and his creditors, which is binding upon a (given percentage) of a dissenting minority of creditors (sometimes referred to as ‘cram-down’). A characteristic feature for these types of proceedings, aimed at reorganising the debtor’s business, is the fact that attempts to restructure or reorganise enterprises can only be initiated by the debtor himself or at least not against his will. The traditional ‘post-mortem autopsy’ approach (liquidation; winding-up, the word was introduced by former Toronto bankruptcy judge Jim Farley) was slowly supplemented by instruments which allow for ‘real time action’ and domestic laws contain several proceedings which reflect different goals of a company in a rescue. Quite rightly it has been observed, that in most Member States insolvency laws have been updated ‘to fit with the new economic context: beside traditional collective insolvency proceedings decided by the court on the basis of the debtor’s insolvency, new schemes applicable to a group of main creditors (for example banks, public bodies) at a pre-insolvency stage are regarded as being more efficient for the purposes of business continuation and preservation of jobs.’ See page 1 of the Terms of Reference for the EU Group of Experts on Cross-border Insolvency.

Also the approach, compared to some 15 years ago, of Member States’ attitude regarding cross-border insolvency cases has changed dramatically. At the end of last century countries had isolated, separate, self-contained systems. As far as cross-border insolvency problems are concerned, this has turned into rules to coordinate these cases, e.g. within the EU since the adoption of the Insolvency Regulation in 2002, recast in 2015, but also by creating rules which deal with these issues in relation to non-EU countries, sometimes (indirectly) inspired by the UNCITRAL Model Law. Therefore, on several levels and in different forms several concepts and norms correspond to each other or even match.

The reality nowadays demonstrates that national civil law systems can cope with and provide protection to parties in a market in which (i) cross-border activities are facilitated and trade and investment is encouraged, (ii) when economically so many changes occur as a result of a more global, more mobile and more digital world, and (iii) where company structures are becoming more complex which makes it easy for companies to move their gains, their assets, and the choice of the Member States where revenue or gains will fall. In all matters concerning restructuring or insolvency with different proceedings pending in different states, national systems influence each other with ‘intervention’ possibilities, ‘cooperation’ (actually aligning approaches to pending proceedings), and ‘harmonisation’ or ‘uniformation’ is found in certain provisions of the EU Insolvency Regulation 2015, such as Articles 10(2) (reservation of title), 23 (return and imputation), 36 (right to give an undertaking in order to avoid secondary insolvency proceedings), 37 (right to request the opening of secondary proceedings), 40 (advance payments of costs and expenses), 41-44 (duty to cooperate and to communicate between IPs and courts), 45 (exercising creditors’ rights), 46 (stay of the process of liquidation in secondary proceedings), 48 (impact of closure of insolvency proceedings), 49 (assets remaining in the secondary proceedings), 50 (subsequent opening of the main insolvency proceedings), 51 (conversion of secondary insolvency proceedings), 53 (right to lodge claims), 54 (duty to inform creditors) and 56-77 (Ch V Insolvency proceedings of members of a group of companies). These topics are now uniformly regulated all across the EU.

Finally, since September 2015 around twenty jurisdictions have implemented significant legislative changes or have changes pending. Among these are Japan and India, countries in the Middle East and Central Africa, South Korea, Malaysia and Australia. Recently, in some ten European countries corporate insolvency regimes have been or are being amended, including Italy, Spain, Poland, France, the UK and the Netherlands, with changes being discussed or underway in Cyprus. In all these countries, the primary object of these changes is to promote corporate rehabilitation (be it restructuring or going concern sales) to serve as an alternative to the liquidation of enterprises. The main drivers of these changes are pressure on governments to take into account employment interests and not only the interests of creditors when it comes to insolvency, to intervene earlier in the process of financial distress, and save viable companies, to maximise value and allocate returns to all stakeholders, especially creditors, and indirectly, the fear of the impact of interest rates after years of very low rates. The result is to put into action the use of restructuring and insolvency laws in assisting the restructuring of the economy. The tendency is from viewing insolvency as a terminal proceeding for businesses ending in liquidation, to recognising insolvency proceedings as a gateway to potential business rescue (‘instrumentalisation’ of insolvency law). The European Commission has chosen the right basis for its proposal in Article 114 TFEU, the creation of an internal market. In the business world of trade and investment, insolvency law is a major pillar in the market economy. The view prevails that insolvency has become a calculable and acceptable risk and that business failure and market exit are an integral part of the business cycle. Many countries understand the importance of a solid insolvency system and its meaning for investors and a growing economy. To continue structuring this system in a rather similar fashion is a logical step.

]]>
Private Law, 2017-02-06T08:30:00+00:00
Wanted: judges with experience in international commercial insolvency practice! - wsifranchise.info http://wsifranchise.info/articles/wanted-judges-with-experience-in-international-commercial-insolvency-practi http://wsifranchise.info/articles/wanted-judges-with-experience-in-international-commercial-insolvency-practi#When:13:41:00Z The EC Directive on “preventive restructuring frameworks" provides for pre-insolvency rescue measures that need a specialist court, to be staffed with judges experienced in international commercial insolvency practice, to become successful.]]>

On Friday 27 January 2017, over 250 Dutch and international insolvency law specialists (lawyers, trustees, judges, policy makers, banks, academics etc.) convened in the Amsterdam Eye Museum for the conference Eyes on Insolvency. The theme was about the recently published proposal for an EC Directive on “preventive restructuring frameworks, second chance and measures to increase the efficiency of restructuring, insolvency and discharge” [COM(2016)723]. The directive aims to further develop the internal market by facilitating the pre-insolvency restructuring process of viable businesses in financial distress.

Such preventive restructuring frameworks should enhance the possibility among the creditors of the troubled business to reach agreement on how to overcome the financial difficulty. Apart from generating cash by selling assets to pay the creditors, typical restructuring measures are voluntary ‘haircuts’ or debt-for-equity-swaps. In doing so, the creditors agree to (largely) discharge the debtor from its debt in consideration of an equity stake. Consequently, the creditors agree not to collect their claims (largely or in their entirety) but instead accept the uncertain prospect of future recovery and renewed growth of the business. Through their equity they will participate in the upside.

Because the creditors have to write off part or all of their claims, not all of them are willing (or able) to do so voluntarily. Hence, there will be opposition to the restructuring plan, maybe even only arising from a nuisance value perspective. If there is no ‘all creditors’ consent’ to the restructuring plan, judicial intervention is required to uphold the restructuring attempt if a substantial majority is in favour. Binding opposing creditors to the restructuring plan, is effectively an intrusion in a ‘property right’ of such creditor which is protected by (inter)national law (e.g. Article 1 First Protocol ECHR). This requires court intervention based on statutory law in accordance with Article 6 ECHR. The EC Directive instructs the Member States to design a legal framework within which judicial involvement should be limited, only where it is necessary and proportionate so that rights of affected parties are safeguarded. Consequently, for a restructuring plan to become binding on opposing creditors, it must be confirmed by a court. Because time is of the essence in restructuring a viable business in financial distress, this court must render its decision without undue delay but no later than 30 days after the request for confirmation. As discussed during the conference, most debates will presumably be about valuation issues. This will likely lead to opposing experts (and their reports) who require the courts to understand the underlying financial and economic motives and drivers.

As demonstrated at the conference by the highly experienced judicial panel members from the USA (Timothy Barnes, US Bankruptcy Court Chicago) and UK (Richard Snowden, High Court Chancery Division London), it will be of utmost relevance to prepare the Dutch judiciary for such specialist tasks. This should not be left to all (11) district courts in the Netherlands. Concentration of judicial knowledge, experience and practice is needed and should be conferred on one specialized court or chamber with judges having substantial experience in international commercial insolvency practice.

]]>
Private Law, 2017-01-31T13:41:00+00:00
Dutch Finance Minister did not mislead Fortis investors: the role of the financial crisis in court - wsifranchise.info http://wsifranchise.info/articles/dutch-finance-minister-did-not-mislead-fortis-investors-the-role-of-the-fin http://wsifranchise.info/articles/dutch-finance-minister-did-not-mislead-fortis-investors-the-role-of-the-fin#When:07:43:00Z The Dutch Supreme Court upheld the decision that the State of the Netherlands did not mislead investors in the run-up to the nationalisation of Fortis. The role the financial crisis played in this outcome and the role it should have played.]]>

Dutch-Belgian banking and insurance group Fortis was one of the first European financial institutions of substantial size to be hit by the global financial crisis. An accumulation of events, including the purchase of ABN Amro bank in 2007, the financial crisis and the collapse of Lehman Brothers significantly affected the financial standing of Fortis. Clients lost confidence in the bank and started to withdraw their deposits, threatening Fortis’ continued existence. To prevent Fortis’ immediate demise, on Sunday 28 September 2008 the governments of Belgium, Luxemburg and the Netherlands announced their financial support of the failing group. The Dutch government guaranteed a capital injection of EUR 4.0 billion. However, five days later, on 3 October 2008, nationalisation turned out to be inevitable and as a consequence, Fortis investors saw the value of their investments evaporate: The share price plunged from EUR 5.60 to EUR 1.93.

A group of investors started a collective action. They claimed both Fortis and the State of the Netherlands had made misleading statements about Fortis’ financial situation, which allegedly triggered these investors to buy shares in Fortis. The Amsterdam Court of Appeal held that the statements made by Fortis were misleading, but that the statements made by the State, primarily through the former Minister of Finance, had not misled investors in the run-up to the nationalisation. On 30 September 2016, the Dutch Supreme Court upheld this decision.

What role did the financial crisis play in court? The context of the crisis proved a crucial factor in the decision that the statements made by the State were not misleading. It could, however, be argued that the crisis should have played another role – that of a justification – particularly where it concerns statements, which were almost undeniably misleading. I will illustrate these two distinct roles hereinafter. For that purpose, I will use the Court of Appeal’s distinction between statements made in two periods: i. the period between announcing the first rescue operation (28 September) and the day the Minister knew that more serious measures were necessary (30 September), and ii. the period between the day the Minister knew that more serious measures were necessary (30 September) and the nationalisation (3 October).  

An example of a statement by the State in the first period, made immediately after announcing the first rescue operation, was the Finance Minister saying: “Fortis is gered.” (Fortis is saved.) Was this statement misleading, especially considering the nationalisation that took place a few days later? The courts say no. The ‘reasonable investor’ (maatman-belegger) would (or should) have interpreted these words in the light of their context: a global financial crisis, an almost-insolvent Fortis and a dilemma. The phrase “Fortis is saved” did not mean “Fortis is a safe investment”, but “Fortis is saved. For now.” In addition, the Minister had no other option but to brim with confidence to give his rescue plan a chance. This strategy legitimately trumps warning the public that more serious measures may be necessary. The reasonable investor should have considered the Minister’s dilemma in its decision-making. Hence, in the context of the financial crisis this statement was not misleading.

In regard to statements made by the Minister in the second period, the above reasoning does not seem justified. To illustrate this: On 2 October 2008 the Minister informed Parliament about the first rescue operation, withholding that the operation had failed, more serious measures were necessary and that negotiations had started. Would the context of the financial crisis also in this case support the conclusion that these incomplete statements were not misleading? The Court of Appeal answered in the affirmative. The Advocate General of the Supreme Court disagrees. He argues that the information withheld was of such crucial importance to investors, that even within the context of the financial crisis these statements must qualify as misleading. Did the State then disseminate misleading information? Arguably, yes. Would it mean the State should compensate the investors? Probably not, as the financial crisis should have been attributed another role, viz. a justification of the misleading statements. The conclusion therefore should have been that these statements were indeed incomplete and misleading, but that withholding information was justified considering the major interests of the financial system and the public at large.

Both roles will ultimately lead to the same result: the State not having to compensate the investors. Moreover, the investors and Fortis’ successor, Ageas, have agreed on a settlement. So all in all, a satisfactory outcome. The courts acknowledged the turmoil, unprecedentedness and dilemmas characteristic of the financial crisis. However, they neglected to fully exploit the flexibility of our legal system, culminating in a result that failed to set a practically and dogmatically correct precedent for any future crisis.  

]]>
Private Law, 2017-01-24T07:43:00+00:00
Five years of monitoring children’s rights in the Netherlands: A superfluous luxury? - wsifranchise.info http://wsifranchise.info/articles/five-years-of-monitoring-childrens-rights-in-the-netherlands-a-superfluous http://wsifranchise.info/articles/five-years-of-monitoring-childrens-rights-in-the-netherlands-a-superfluous#When:10:26:00Z In December the Children’s Ombudsperson published the Children’s Rights Monitor. This monitor presents an overview of the implementation of the Convention on the Rights of the Child in the Netherlands in the last five years and also looks at the future.]]>

On 13 December 2016 the new Dutch Children’s Ombudsperson published the fifth Children’s Rights Monitor 2016, a jubilee edition. The monitor relies on an advisory report prepared by the Department of Child Law and the Institute of Immigration Law.

From a children's rights perspective, the monitor evaluates the implementation of children's rights in the Netherlands (including the Caribbean part of the Kingdom, i.e. Bonaire, St. Eustatius and Saba) and analyses how the situation of children can be improved. The UN Convention on the Rights of the Child and the Concluding Observations drawn by the UN Committee on the Rights of the Child serve as a basis for this analysis. The Dutch government provided information concerning new policies and legislative developments and the Dutch Bureau of Statistics provided statistical information on the position of children. The Children's Rights Monitor concerns all children in the Netherlands. In 2016 3.4 million children were living in the Netherlands; 1 out of 5 inhabitants was under the age of 18 (see CBS). In the Caribbean part of the Kingdom 5.6 thousand children were under the age of 20 (see CBS).

As in previous years, the monitor is divided into six chapters on the following themes: 1. Family situation and alternative care; 2. Protection against exploitation and violence; 3. Deprivation of liberty and juvenile justice; 4. Adequate standard of living; 5. Education; 6. Young immigrants. The speciality of this jubilee edition is that each chapter presents a flashback of the relevant developments in the past five years. On the basis of statistical data, developments in legislation, changes in policy, relevant case law and scientific studies, the monitor gives an insight into issues influencing the lives of children in the Netherlands. The final chapter of this jubilee monitor looks towards the future.

On the basis of five years of monitoring children’s rights in the Netherlands, three main themes regarding the realisation of children's rights within the Kingdom of the Netherlands are identified in the advisory report. First, the decentralisation of youth care to the local municipalities. Second, the increasing Europeanisation of children’s rights and third, the importance of collecting disaggregated data and monitoring children’s rights.

Decentralisation of care

In recent years, a child’s place of residence has increasingly influenced the availability and quality of services provided by the local municipality. As of 2015 the provision of youth care has been decentralised to local municipalities. One of the concerns is that good quality care is not readily available everywhere, in part due to budget cuts. This does not only apply to youth care, but also to children who are in need of services because they live in poverty, children with disabilities and who need adaptations in accessing education and to the care for refugee children and children seeking asylum. From a children’s rights perspective, it is important to continue monitoring the availability and quality of services provided by the municipalities to children in need of care or protection.

Europeanisation of children’s rights

European law and regulations increasingly influence the lives of children. For example, EU laws largely determine Dutch immigration law. These laws are not only in favour of refugee children, for example because children are not always guaranteed a permanent residence permit. However, it is expected that in the coming years the EU will formulate a more comprehensive approach regarding the best interests of the child. The role of both the Court of Justice of the EU and the European Court of Human Rights will remain significant in the next few years ahead (see: Handbook on European law relating to the rights of the child).

Collecting data and monitoring children’s rights

Five years of monitoring children’s rights has taught us that in the Netherlands a considerable amount of data regarding the lives of children is collected. At the same time, however, there is a lack of disaggregated statistical data concerning certain children. For example, there is very little data regarding child victims of sexual exploitation, homeless children, children with disabilities and children living in the Caribbean part of the Kingdom of the Netherlands.

Effective children’s rights implementation requires the monitoring of children’s rights (General Comment No. 5, 2003). The Children’s Rights Monitor evaluates the progress the Netherlands is making in the implementation of children’s rights. The Dutch government uses this document to show the UN Committee on the Rights of the Child how children’s rights are being implemented. Five years of monitoring children’s rights has shown that it is an ambitious and unique exercise. But above all, it can be concluded that monitoring the practical implementation of children’s rights is no superfluous luxury. 

]]>
Private Law, 2017-01-23T10:26:00+00:00
Children at the Forefront of Environmental Protection - Children’s Rights and the Environment - wsifranchise.info http://wsifranchise.info/articles/children-at-the-forefront-of-environmental-protection-childrens-rights-and http://wsifranchise.info/articles/children-at-the-forefront-of-environmental-protection-childrens-rights-and#When:10:22:00Z In honour of the 2016 International Children’s Peace Prize winner, the Child Law Department of Leiden Law School produced a research report on children’s rights and the environment - Cleaning up the Mess- Children’s Rights and Environmental Protection.]]>

In the past few decades, environmental degradation has risen at an unprecedented rate. According to the available scientific data, the vast majority of causes of environmental degradation are initiated by humans, which implies that the risks of environmental degradation as well as environmental degradation itself are preventable and avoidable. Although environmental degradation affects us all, research suggests that children disproportionally suffer most as a result of it.

The International Children's Peace Prize is awarded annually to an exceptional child for improving children’s rights worldwide. On 2  December 2016, Kehkashan Basu from the United Arab Emirates was presented with this prestigious award in The Hague for her fight for climate justice and environmental protection. In honour of the 2016 International Children’s Peace Prize winner, the Child Law Department of Leiden Law School produced a research report on children’s rights and the environment- Cleaning up the Mess - Children’s Rights and Environmental Protection. The Report represents a valuable contribution in the field of the rights of the child and the environmental arena. It focuses on the relationship between the environment and the rights of the child, exploring the impact of environmental degradation on children’s rights; how the environmental rights of the child are embedded in the CRC; and the interaction between environmental rights and children’s rights. The report is divided into four chapters.

Chapter 1 of the Report is an introductory chapter that provides an overview of the main issues relating to children and the environment. Chapter 2 examines the correlation between environmental degradation and children’s well-being. It concludes that there is an inextricable link between children’s rights and the environment - a good quality, healthy environment is a precondition for the realization of the rights of the child, while the realization of the rights of the child is a precondition for  successful and efficient environmental protection. Chapter 3 of the Report zooms in on the rights of the child and the environment. In this chapter, the UN Convention on the Rights of the Child (CRC) is analyzed from the environmental perspective, as well as the CRC’s relevance for the development of the international sustainable development and environmental framework. Although the CRC does not recognise environmental rights of the child as such, it stipulates enforceable obligations for states regarding the environmental rights of children and the protection of children against environmental degradation. It identifies an associated infrastructure through which the implementation of the Convention can be monitored and stimulated, and particularly the role of the Committee on the Rights of the Child. As the realization of the rights of the child are considered both an end and a means for the implementation of the Sustainable Development Goals (SDGs), the CRC Committee could have an important role in actively bridging the rights of the child with the SDGs in relation to the environment. Finally, the chapter examines from the perspective of children’s rights the two most pressing environmental issues that have some of the most devastating consequences on children’s well-being and rights - climate change and energy. Although not considered environmental issues as such, special focus is given to the access to information, participation and access to justice in environmental matters as they are essential for the realization of the rights of the child and environmental protection. Furthermore, the Report reflects on three groundbreaking court cases: the Minora Oposa Case in the Philippines that demonstrates how protection of the rights of the child contributes to the protection of the environment, and how limitation of children’s access to ecosystem services and the ecosystem constitutes a violation of the rights of the child; the Urgenda Climate Case in the Netherlands that showcased the intersection between greenhouse emissions and the protection of human rights, and children’s rights specifically; and the ongoing children’s climate lawsuit in Oregon that argues that environmental degradation contributes to a violation of the rights of the child, and especially right to life, health and other rights.

The Report concludes with a set of recommendation with regard to  children’s rights and the environment. In order to address the identified challenges, the Report calls for:

  • The adoption of a General Comment on the Rights of the Child and the Environment that would interpret the rights of the child from an environmental perspective;
  • The adoption of a Fourth Optional Protocol to the CRC recognising the environmental rights of the child, especially the right to a healthy environment and to energy;
  • Improvement of access for children to environmental information and ecosystem services and benefits. The Report recommends enhancing participation of children in environmental decision-making at all levels and enabling effective access to justice for all children in environmental matters;
  • Mainstreaming of children’s rights in environmental law, policy and activities, especially in climate change and energy law and policy;
  • Better collection of data and indicators for the implementation of SDGs especially with regard to children that will ensure that no child is left behind in the 2030 Agenda for Sustainable development.

Overall, the Report highlights some of the main issues regarding children and the environment, and underlines that environmental degradation does not only reflect attitudes towards our surroundings that we depend on, but that it is also an issue of justice, particularly how we structure society towards children.

]]>
Private Law, 2017-01-20T10:22:00+00:00
Effective participation of refugee children - wsifranchise.info http://wsifranchise.info/articles/effective-participation-of-refugee-children http://wsifranchise.info/articles/effective-participation-of-refugee-children#When:08:00:00Z The number of refugee children is on the rise and many find themselves in a particularly vulnerable situation. Allowing effective participation of refugee children in legal procedures can enhance understanding of complex asylum procedures and decisions. ]]>

Worldwide, the number of child refugees has more than doubled in the last decade. Nearly one in every 200 children in the world today is a refugee (UNICEF, 2016a). In Europe, one in four asylum seekers is a child (800 per day) (European Commission, 2016). Although in 2016 the number of asylum seekers in the Netherlands did not reach the peaks of 2014 and 2015, the percentage of children of the total number of asylum seekers has increased. Between October 2015 and July 2016 the number of children rose from 28% to 42% of the total amount of people applying for asylum in the Netherlands (CBS, 2016).

Vulnerability

In the context of migration, refugee children are the most vulnerable group facing many challenges: they experience a dangerous journey and often lack access to essential necessities such as food, shelter, medical aid and a healthy and stimulating environment for growing up. Moreover, refugee children are highly dependent on adults; they easily fall victim to abuse and harm during their journeys and they face poverty and exclusion while in the destination country (UNICEF, 2016a; UNICEF, 2016b; Council of Europe, 2016).

Participation

Refugee children arriving in the destination country face many difficulties when seeking asylum, such as frequent moves, lack of education, insufficient access to healthcare, etc. (UNICEF, 2016b; Working group Child in Asylum-seeking centre, 2016). Moreover, several recent studies indicate that refugee children are not sufficiently enabled to participate in the predominantly adult-oriented asylum procedures (Working group Child in Asylum-seeking centre, 2016; Smyth, 2014; Mannion, 2016; FRA, 2016). Information about their rights is generally aimed at adults. When children are accompanied by parents it is assumed that it is sufficient if the adult is informed and heard within the asylum procedure (ENOC Taskforce children on the move, 2016).

Since refugee children find themselves in a particularly vulnerable position, often having experienced traumatic events that cause insecurity and anxiety, they have a lot to gain from being regarded as active agents in legal procedures (Van Os et al., 2016; Kalverboer et al., 2016; Derluyn & Broekaert, 2007). Being able to participate empowers children and helps them to better understand and accept the decisions that are made (Cashmore & Parkinson, 2007; Tyler, 2006). While children’s skills in reasoning and expressing their views increase when learning to participate (Saywitz et al., 2010; Fitzgerald et al., 2009), a lack of regard for children’s agency has the opposite effect of promoting ‘a self-fulfilling cycle of learned helplessness,’ since children feel as though they are not being taken seriously (Lansdown, 2005, p. 24).

Rejected asylum claims 

A recent example of neglecting the right to participation of refugee children is the rejection of asylum claims made by children dispersed from the Calais Jungle in October 2016. Hundreds of children filed asylum claims in the UK after the refugee camp in Calais was demolished. Last December several children, residing in French reception centres, were verbally told that their asylum claims had not succeeded, but no written reasons from the UK government were given to these children. A 15-year-old Eritrean boy told the Guardian:  

“I was in Calais for two months and have been in this centre for more than one month. There are 14 of us here who have received this bad news. The British government and the Home Office have been playing games with us” (The Guardian, 16 December 2016).

The fact that the children had to wait for nearly two months and in the end did not receive any written reasons explaining the rejection of their asylum claim, fails to recognise these children as rights holders and active agents in the procedure. This can be seen as contradictory to the UN Convention on the Rights of the Child, which advocates the view that children are autonomous subjects and full bearers of rights. A one-sided view of refugee children as vulnerable objects is not in line with international children’s rights standards. However, their vulnerability calls for a strong legal position in asylum procedures. Effective participation in legal procedures – based on child-friendly and age-appropriate communication, adaptation of procedures to their age and level of maturity, and taking children seriously – can strengthen the legal position of refugee children and contribute to the perceived fairness of complex asylum procedures and outcomes.

]]>
Private Law, 2017-01-06T08:00:00+00:00