Avoid bankruptcy with the WHOA

Published by:
Netherlands Chamber of Commerce, KVK
Netherlands Chamber of Commerce, KVK

Is your company in danger of going bankrupt? Make agreements with your creditors and have these approved by a judge. The Dutch law WHOA allows you to come to an agreement through the courts, even when not all creditors agree. Read what the conditions are and what you can do.

What is the WHOA?

WHOA stands for the Court Approval of a Private Composition (Prevention of Insolvency) Act (Wet Homologatie Onderhands Akkoord in Dutch). If all creditors and debtors cannot reach a solution together, a court can still approve (homologate) an agreement. This agreement will automatically apply to all creditors and shareholders involved. Also creditors who do not agree with the plan.

What does the WHAO procedure involve?

The WHAO procedure is a legal process. It involves submitting a debt restructuring agreement to a court for approval. The procedure can be initiated by a debtor, a creditor, or shareholders. The debtor may file a starting agreement independently. Creditors and shareholders apply to the court to appoint a debt restructuring expert to draw up an agreement. During a WHOA procedure, the court may appoint experts to investigate whether a debtor is capable of paying their debts. If the debtor prepares the agreement independently, the court can appoint an observer to monitor if the preparation process is going well and fairly.

Starting a WHOA procedure

Do you want to start preparing a settlement yourself? Then you can file a starting statement with the court. This will open a WHOA procedure and allow you to take advantage of the opportunities offered by the WHOA. You can file the start declaration yourself. Do you not want to prepare an agreement yourself? Then through a lawyer you can apply directly to the court to appoint a restructuring expert. This expert will prepare an agreement and submit it to all creditors.

Check the conditions

Before a court approves the settlement, your business must meet the following conditions:

  • You can no longer pay the debts of your business (insolvency)
  • Your business is essentially profitable
  • This agreement is more favourable for your creditors than bankruptcy of your company
  • You have a feasible plan that meets legal requirements. You can determine the content of the agreement yourself
  • You ensure a fair and equal distribution of money and assets among all creditors
  • At least one creditor must vote in favour of the private agreement
  • The employment conditions of your staff remain the same

Preparing for the WHOA procedure

First file a starting statement with the clerk of the court, indicating that you will prepare an agreement. Then you can start preparing a draft agreement. These are the steps you can take:

  • Consult with your creditors and shareholders
  • Make arrangements about, for example, repaying later, cancelling debts or converting debts into shares
  • Record those agreements in a draft agreement
  • Present the draft agreement to your creditors and shareholders who you wish to involve in the private agreement
  • Organise a vote and invite your creditors and shareholders
  • Report on the outcome of the vote within 7 days after the vote
  • Send your creditors the report of the vote
  • Inform the court that you are working on an agreement according to the WHOA

Once the draft agreement is completed, you can submit the agreement to the court for approval.

Speak to an insolvency expert

The WHOA procedure is short, but complicated. Start preparing in time. You can ask a legal or financial adviser to assist you. There are costs associated with this.

Cooling-off period WHOA

If you have offered an agreement, you can ask the court for a cooling-off period. For example, your creditors cannot seize assets from your business assets. And the bank may not offset debts against the balance in your bank account. The judge must first give permission for this.

Video: Is your business in danger of bankruptcy? The WHOA offers a solution

Using an example situation, KVK explains how to use the WHOA if you are in danger of bankruptcy due to high debts, in the video Is your business in danger of bankruptcy? The WHOA offers a solution. Click settings and choose English subtitles

Questions relating to this article?

Please contact the Netherlands Chamber of Commerce, KVK