Best Structured Finance Lawyers in Enschede

About Structured Finance Law in Enschede, Netherlands

Structured finance covers transactions that transform the risk and cash-flow profile of financial assets - for example securitisations, asset-backed lending, project finance, collateralised loan obligations, and special purpose vehicles. In Enschede the legal framework that governs these transactions is the same Dutch national law that applies across the Netherlands, combined with EU rules that have been implemented into Dutch law. Local advisors and courts in the region apply Dutch Civil Code principles, insolvency rules, secured transactions law, tax rules and financial regulation when advising and enforcing structured finance deals.

Why You May Need a Lawyer

Structured finance transactions are legally complex and often involve multiple parties, bespoke documentation and strict regulatory and tax requirements. You may need a lawyer if you are:

- Planning to set up a special purpose vehicle - typically a BV or a stichting - to hold assets or issue securities.

- Structuring a securitisation or asset-backed financing and need documentation for transfer of receivables, creation of security, and intercreditor arrangements.

- Drafting and negotiating complex security packages - mortgages, pledges, assignments - over Dutch assets and bank accounts.

- Seeking to achieve bankruptcy-remoteness or ring-fencing of assets and need opinions on insolvency risk and enforceability.

- Needing tax advice tied to the legal structure - on withholding tax, VAT, corporate income tax, and substance requirements.

- Offering securities to investors and needing to comply with prospectus and Financial Supervision Act requirements.

- Enforcing security or handling insolvency of a counterparty in the Netherlands - requiring knowledge of Dutch insolvency procedures.

Local Laws Overview

The most relevant legal areas to structured finance in Enschede are Dutch civil law, insolvency law, property and security law, financial regulation and tax law. Key points to understand are:

- Dutch Civil Code (Burgerlijk Wetboek): Governs corporate law, contracts, assignment of claims, pledge and mortgage rules, and general contract principles that underpin structured finance documents.

- Security rights: Dutch law recognises mortgages (hypotheek), pledges (pandrecht) over movables and receivables, and assignment of claims (cessie). Enforcement procedures and perfection steps differ by security type - for example a pledge over receivables usually requires a specific agreement and often notice to debtors to improve enforceability in practice.

- SPV forms: The private limited company (Besloten Vennootschap - BV) and the foundation (Stichting) are commonly used. A stichting can be structured as a bankruptcy-remote vehicle or as an administrative foundation (STAK) to hold economic rights for investors.

- Insolvency: The Bankruptcy Act (Faillissementswet) and procedures such as suspension of payments (surseance van betaling) determine priority and treatment of secured and unsecured creditors. Dutch law does not use a floating charge concept, so bespoke arrangements are needed for changing pools of assets.

- Financial supervision: The Financial Supervision Act (Wet op het financieel toezicht - Wft) and EU legislation apply where the transaction involves regulated activities, public offerings or investor protection requirements. The Netherlands Authority for the Financial Markets (AFM) and De Nederlandsche Bank (DNB) oversee market conduct and prudential matters.

- EU Securitisation Regulation and Prospectus Regulation: EU rules affect disclosure, risk retention and prospectus requirements for public offers and certain securitisations - these have been implemented in Dutch practice and should be considered for deals that involve EU investors or EU-based originators.

- Tax and substance: Dutch tax law, withholding rules and anti-abuse provisions have major implications. The Dutch tax authority expects real economic substance for entities claiming resident status or tax benefits. Transfer pricing, VAT issues and the participation exemption or tax treaties may be relevant depending on the structure.

Frequently Asked Questions

What is structured finance and how does it differ from traditional lending?

Structured finance repackages cash-flows or balancesheet assets into bespoke instruments that change the risk-return profile. Unlike a simple bank loan, a structured deal often uses special purpose vehicles, tranching of risk, contractual credit enhancement, and bespoke security arrangements to appeal to investors and manage regulatory capital.

Can I use a Dutch BV or a stichting as the SPV?

Yes. A BV is commonly used where you need a corporate vehicle with share capital and management. A stichting is often used as a bankruptcy-remote vehicle or administrative foundation. Choice depends on liability, governance, tax, and bankruptcy-remote objectives. Legal advice is needed to document governance and substance correctly.

How do I create and perfect security over receivables in the Netherlands?

Security over receivables is typically created by a pledge agreement or assignment. Perfection depends on the type of receivable and the terms in the contract. For enforceability, many originators include notification to debtors and control arrangements. Because Dutch law does not have a floating charge, lenders often take portfolio-level security with specific contractual mechanisms to manage changing asset pools.

Is an English law security package valid in the Netherlands?

Parties commonly choose English law for documentation, but security over Dutch-located assets often needs to be created under Dutch law to be enforceable locally. For example, mortgages and certain pledges should be governed by Dutch law and formally perfected under Dutch requirements.

What regulatory approvals or filings might be required?

If you offer securities to the public, prepare a prospectus under EU and Dutch rules. If the transaction involves regulated activities, licensing or notifications under the Financial Supervision Act may be required. Prudential sponsors such as banks must also consider capital rules from DNB and, for significant players, ECB oversight.

How does bankruptcy of the originator affect a securitisation in the Netherlands?

If assets have been validly transferred to an SPV and security perfected, they are generally outside the originator's bankruptcy estate. The structure should be bankruptcy-remote - via transfer, segregation accounts, or a stichting - to reduce the risk that originator insolvency disrupts cash-flows. Detailed legal opinions help confirm transfer effectiveness.

What are the main tax issues to consider?

Key tax matters include corporate income tax for the SPV, withholding tax on interest or dividend flows, VAT treatment, transfer taxes where real estate is involved, and anti-abuse rules. The tax residence and substance of the SPV affect treaty benefits. Advance rulings and careful tax structuring are common.

How long does it take and what are the typical costs to set up a structured finance SPV?

Timelines vary. A basic SPV and documentation can be prepared in a few weeks, while a full securitisation with investor due diligence, regulatory checks and tax planning may take several months. Costs include legal fees, tax advice, notarial fees for certain security, administration fees for trustee or agent roles, and potential registration costs. A detailed budget depends on complexity and counterparty negotiations.

What happens when I need to enforce security in the Netherlands?

Enforcement routes depend on the security type - for mortgages there are court and notarial execution procedures, while pledged movables or receivables may be enforced through contractual sale or distraint. A Dutch bailiff often executes enforcement. Prior notice and a precise enforcement plan prepared by counsel are important to minimise delays and disputes.

Who should I involve on the deal team in Enschede?

You should involve a Dutch structured finance lawyer, a tax adviser familiar with Dutch and international tax rules, possibly a local notary for security registrations, an experienced arranger or lead bank, and an administrator or trustee for post-closing servicing. Local counsel with experience in Dutch insolvency and security enforcement is valuable for on-the-ground issues.

Additional Resources

Below are organisations and sources that are useful when you need authoritative information or local contacts:

- Netherlands Authority for the Financial Markets - market conduct and prospectus rules.

- De Nederlandsche Bank - prudential supervision and bank-related requirements.

- Dutch Tax Authority - guidance on tax treatment, rulings and compliance.

- Chamber of Commerce - company registration and basic corporate filings.

- Ministry of Finance - policy documents on financial regulation and taxation.

- Nederlandse Orde van Advocaten - professional body for finding qualified lawyers in the Netherlands.

- Local law firms and boutique advisers in the eastern Netherlands who specialise in finance, corporate and tax law.

- Industry associations and publications on securitisation and structured finance for best practices and market developments.

Next Steps

If you need legal assistance for a structured finance matter in Enschede, consider this practical checklist:

- Identify and document the asset pool and desired outcome - funding, risk transfer, off-balance-sheet treatment, or investor offering.

- Engage a Dutch lawyer with structured finance experience early - they will advise on the optimal SPV form, security package, and governing law for each element of the deal.

- Involve a tax adviser to assess domestic and cross-border tax consequences and substance requirements.

- Prepare a preliminary term sheet that sets out parties, cash-flow waterfalls, triggers, and enforcement mechanics.

- Check regulatory requirements - prospectus, licensing, and prudential rules - and consult with AFM or DNB guidance as needed.

- Plan for perfection and enforcement - determine which securities must be governed by Dutch law, notarial acts if needed, and practical steps to achieve control over bank accounts and receivables.

- Budget time and cost - allow time for documentation, third-party consents, due diligence and any governmental filings.

- Obtain legal opinions where necessary - especially on bankruptcy-remoteness, transfer effectiveness and tax positions.

- After closing, maintain compliance - ongoing reporting, servicing and tax filings are often required in structured finance structures.

Getting tailored legal advice at an early stage helps reduce legal, tax and operational risks. Seek a lawyer who can explain complex issues in plain language and who will coordinate with your tax adviser, accountant and transaction counterparties.