The hidden engine of corporate law in the Netherlands: How reasonableness and fairness shape corporate dispute resolution

For international clients navigating the corporate landscape of the Netherlands, one statutory provision stands out as remarkably concise and extraordinarily powerful: Article 2:8 of the Dutch Civil Code (Burgerlijk Wetboek, BW). This provision applies to a legal entity and to those who are institutionally involved in its organisation under the law or its articles of association. They must conduct themselves towards each other as required by the standards of reasonableness and fairness (redelijkheid en billijkheid).

Although it occupies only a few lines in the statute book, Article 2:8 BW functions as the fundamental rule (grondnorm) of Dutch corporate law. Its influence permeates every aspect of corporate governance – from the duties of directors and shareholders to the resolution of complex corporate disputes before the Enterprise Chamber (Ondernemingskamer, OK) of the Amsterdam Court of Appeal. Here we provide an overview of the scope, practical effects and recent developments surrounding this provision.

Article 2:8(1) BW establishes a general duty of care within the internal organisation of a legal entity. The rule is formulated from the perspective of a single legal entity: both the entity itself and those who are institutionally involved in its organisation — such as directors, supervisory directors, shareholders, certificate holders and certain other rights holders — must conduct themselves towards each other in accordance with what reasonableness and fairness require.

Importantly, the Dutch Supreme Court (Hoge Raad) has confirmed that even outside the strict scope of Article 2:8 BW, concrete standards of care may arise from the general principles of reasonableness and fairness and from what is considered proper in a social setting (maatschappelijk verkeer). There is no hiding behind a narrow interpretation of this codified rule. Reasonableness and fairness permeate Dutch corporate law regardless.

Funda was a landmark ruling of the Dutch Supreme Court (22 September 2023). The Court ruled that Article 2:8(1) BW can also apply to an indirect majority shareholder and to persons involved in the organisation of that indirect shareholder. This ruling acknowledges the “economic reality” and “organisational reality” of corporate group structures.

The Supreme Court proceeded to formulate a general rule applicable to all statutory provisions in Book 2 BW that are written from the perspective of a single legal entity, providing a flexible framework (i.e. a “corporate group law approach” or concernrechtelijke benadering) that does justice to complex corporate structures. This development is of considerable practical significance for multinational groups operating in the Netherlands.

Following the Funda ruling, the Enterprise Chamber has consistently applied this extended reach of Article 2:8 BW in cases such as FM1 (2023) and.Nardinc (2024).

Article 2:8 BW gives rise to a concrete duty of care (zorgvuldigheidsplicht) that requires the company and its directors to act with due regard for the interests of all those involved with the company and its business. This duty has been further elaborated in key areas.

First, in situations where minority shareholders face a majority shareholder, there is an increased risk of conflicts of interest (ontoelaatbare belangenverstrengeling). The company must be attentive to this risk and exercise the necessary care to prevent it.

Second, when a company contemplates transactions in which a director or majority shareholder has a conflicting interest (tegenstrijdig belang), a heightened standard of care applies. This requires maximum transparency, separation of interests, and market-conformity of the transaction terms. The OCI/Orascom ruling (2026) illustrates this: the Enterprise Chamber applied an intensive review of a related party transaction and issued immediate measures, including a prohibition on putting proposals to a vote at the general meeting.

Third, Article 2:8 BW imposes a concrete obligation on the company to provide certificate holders and minority shareholders with generous and verifiable information (ruimhartige informatieverstrekking), regardless of whether they hold voting or meeting rights. For international stakeholders holding minority or indirect interests, this underscores that Dutch law guarantees a meaningful right to information as a matter of corporate law, not merely under contract.

Fourth, in the cases of a share issue that may result in minority shareholder dilution, a higher degree of care is required in the preparation, decision-making and execution of the issue. The scope and purpose of the share issue must be sufficiently clear, and the issue price must be in reasonable proportion to the value of the existing shares.

The inquiry procedure (enquêteprocedure) before the Enterprise Chamber is the primary mechanism for resolving corporate disputes in the Netherlands. In 2024, the Enterprise Chamber handled a substantial number of cases, with a wide range of immediate measures granted, including the appointment of temporary directors and the transfer of shares to a trust (ten titel van beheer).

Article 2:8 BW plays a central role in the inquiry procedure. A breach of the standards under Article 2:8 BW may constitute grounds for complaint about the company’s policies or affairs (gegronde redenen om te twijfelen aan een juist beleid), which is the threshold for ordering an investigation. A breach of Article 2:8 BW, however, does not automatically mean that there has been mismanagement (wanbeleid). For a finding of mismanagement there must have been conduct contrary to the fundamental principles of responsible business management.

The Enterprise Chamber may grant far-reaching immediate measures (onmiddellijke voorzieningen) where required. These may include the appointment of temporary directors, suspension of directors, transfer of shares in trust, and prohibitions and injunctions.

Once mismanagement is established, the obligation to remedy and mitigate the consequences also applies to all those within the scope of Article 2:8 BW, and not only to the legal entity.

Where all shareholders and the company are parties to a shareholders' agreement, the provisions in that agreement give substance to the reasonableness and fairness which all those involved must observe towards each other. This pass-through (doorwerking), however, is not absolute. Other factors also play a role in assessing whether a decision of the company conflicts with the reasonableness and fairness required by Article 2:8 BW.

In the HaDer/JV Holding case (2024), the Enterprise Chamber ruled that the duty of care a joint venture partner must observe under Article 2:8 BW when exercising its appointment rights is informed by the contracts underpinning the joint venture. For international joint venture partners, this development warrants close attention since it suggests that agreed governance arrangements may carry more weight in Dutch corporate law than a purely contractual analysis would suggest.

On 1 January 2025, the Wet aanpassing geschillenregeling en verduidelijking ontvankelijkheidseisen enquêteprocedure (Wagevoe) came into force. This statute marks an important step towards integrating the dispute resolution procedure and the inquiry procedure. The Enterprise Chamber now has exclusive jurisdiction to decide on requests to expel (uitstoting) and remove (uittreding) shareholders and certificate holders.

For international stakeholders with interests in Dutch companies, the following takeaways emerge from the current state of the law:

• The duty of reasonableness and fairness under Article 2:8 BW is not merely a theoretical principle: it is actively enforced and may lead to concrete obligations, including duties to provide information, transparency in transactions and a duty of care with regard to minority interests.
• The Enterprise Chamber has a broad toolkit of immediate and final measures at its disposal. Indirect shareholders and group entities are not shielded from these duties merely by interposing holding structures. 
• With the coming into force of the Wagevoe Act, the resolution of corporate disputes in the Netherlands has become more integrated and efficient.

Article 2:8 BW is the backbone of Dutch corporate law. Its seemingly simple principle to act in accordance with reasonableness and fairness provides the legal basis for a highly developed and nuanced system of corporate dispute resolution. Recent case law continues to expand its reach and sharpen its application, particularly in the context of group structures, related-party transactions and minority shareholder protection. 

For any international party engaged in corporate activities in the Netherlands, a thorough understanding of this provision and its practical implications is indispensable.