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Recovery M&A. A Deal’s a Deal

On 15 December 2023, the Supreme Court rightly confirmed that an agreement between a bankruptcy trustee and a purchaser on the sale of assets cannot be made undone – by an article 69 Dutch Bankruptcy Act proceeding – in the event a superior bid was made by a third party. Meaning that the statutory duty for the bankruptcy trustee to strive for maximum proceeds does not cross “a deal’s a deal”.
The Supreme Court refined that this principle leaves unaffected (i) the impact of other statutory provisions and (ii) any contractual unwinding provisions between bankruptcy trustees and purchasers – which are customary but require precise drafting in terms of appeals -.