Dutch Civil Code

Book 10 Private International Law

Title 10.8 Cooperation

Article 10:117 Definitions
In the present Title (Title 10.8):
a. 'cooperation' means a Corporation*), Association, Cooperative, Mutual Insurance Society, Foundation and any other body or way of collaboration**) that towards the outside acts as an independent entity or organisation;
b. ‘functionary’ means a person who, without being a body, is empowered to represent the cooperation either by virtue of law or the articles of incorporation applicable to it or by virtue of a contract of collaboration.

*) like Open Corporations (public limited liability companies), Closed Corporations (private limited liability companies) and similar legal persons.
**) like professional partnerships, general partnerships, limited partnerships and similar forms of contractual collaboration, provided that the involved natural and legal persons present themselves towards the outside world as an independent entity or organisation. Usually joint ventures that are based solely on a contract of cooperation do not meet this last requirement.

Article 10:118 Applicable law
A cooperation which, due to a contract of incorporation or the deed of incorporation, has its seat, or in the absence thereof, its centre of its outward activities at the moment of its formation, within the territory of the State under the law of which it is formed, shall be governed by the law of that State.

Article 10:119 Applicable law in regard of some particular subject-matters
The law that is applicable to a cooperation, shall govern, besides its formation, in particular also the following subject-matters:
a. the possession of legal personality or of the competence to bear rights and obligations, to perform juridical acts and to act in court;
b. the internal existing order of the cooperation and all subject-matters related to that;
c. the power of representation of the bodies and functionaries of the cooperation;
d. the liabilities of the Directors, Supervisory Directors and other functionaries towards the cooperation;
e. the question who, besides the cooperation, is liable on the basis of a certain capacity for acts binding the cooperation, like an incorporator, partner, shareholder, member, Director, Supervisory Director or other functionary of the cooperation;
f. the ending of the existence of the cooperation.

Article 10:120 Transfer of seat to another State
If a cooperation having legal personality transfers its seat to another country and both, the law of the State of the original seat and that of the State of the new seat, acknowledge, at the moment of transfer of the seat, the continued existence of the cooperation as a legal person, then the continued existence of the cooperation as a legal person shall be acknowledged as well according to Dutch law. From the moment of transfer of the seat, the law of the State of the new seat shall govern the subject-matters mentioned in Article 10:119, except where, according to that law, the law of the State of the original seat remains applicable.

Article 10:121 Liability of Directors and Supervisory Directors under Dutch law
- 1. In derogation from Articles 10:118 and 10:119, Articles 2:138 and 2:149 remain applicable or remain applicable accordingly to the liability of Directors and Supervisory Directors of a cooperation which pursuant to Article 10:118 or 10:120 is governed by foreign law, if the cooperation is subjected to tax in the Netherlands and is declared bankrupt in the Netherlands. Liable as Directors are also the person who have been charged with the highest management of the activities performed within the Netherlands.
- 2. The District Court that decreed the bankruptcy has jurisdiction over all claims filed on the basis of paragraph 1.

Article 10:122 Declaratory judgement for the prohibition of a foreign cooperation
- 1. The Public Prosecution may request the District Court of Utrecht for a declaratory judgment stating that the purpose (objective) or the activities of a cooperation, not being a Dutch legal person, are in conflict with public order within the meaning of Article 2:20.
- 2. As of the first day following the one on which such declaratory judgement was rendered, it has effect on behalf and against everyone. The clerk of the court shall ensure that the declaratory judgment is published in the Law Gazette. Where the cooperation is registered in the commercial register, the declaratory judgment shall be registered there too.
- 3. If asked for, the court may place the assets of the cooperation that are located in the Netherlands under a fiduciary administration. Article 2:22 shall apply accordingly.
- 4. Assets of the cooperation located in the Netherlands in respect of which a declaratory judgment as meant in paragraph 1 has been rendered by the court, are wound up (settled) by one or more liquidators appointed for this purpose by the court. Articles 2:23 up to and including 2:24 apply accordingly.

Article 10:123 Anti-terrorism measures
A cooperation, not being a Dutch legal person, that is mentioned on the list referred to in Article 2, paragraph 3, of Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, or in Annex I of Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan, or mentioned in the Annex, indicated with an *, of Council Common Position of 27 December 2001 on the application of specific measures to combat terrorism (OJ L 344), is prohibited by operation of law and not empowered to perform juridical acts.

Article 10:124 Act on Formally Foreign Corporations
The present Title (Title 10.8) does not affect the Act on Formally Foreign Corporations.

Book 10 Private International Law

Title 10.9 Representation

Article 10:125 Power of representation
- 1. The law applicable to representation shall be designated by the Convention on the Law Applicable to Agency, concluded at the Hague on 14 March 1978 (treaty Series 1978, 138).
- 2. That Convention is not applicable for the Netherlands with respect to representation in regard of insurances.