On November 6, 2012, Alexander Schild will defend his PhD-thesis on the influence of the European Convention of Human Rights on Dutch corporate law. Over the past fifteen years, corporate litigators have increasingly referred to provisions in the European Convention on Human Rights (ECHR). Schild has analyzed the corporate cases in which the ECHR played a role. He gives an in-depth analysis of the importance of the ECHR in the enquiry proceedings before the Enterprise Chamber of the Amsterdam Court of Appeal.
Schild investigates, amongst others, whether the so called 'Tang/Irrgang-proposal' violates section 1 of the First Protocol which protects property rights. The Tang/Irrgang-proposal regards board remuneration in a takeover situation. Even if it might be argued that this proposal is an Irrgang, it is unlikely that the European Court will consider this proposal a violation of section 1. Whatever may be the merits of this proposal, section 1 of the First Protocol cannot be used as an argument against.
One of Schild’s other findings is that the recently introduced Intervention Act (Interventiewet), is not ‘ECHR-proof’. Pursuant to the Intervention Act, the Dutch National Bank is allowed to sell assets of a financial institution to a third party if it is in serious difficulties. Under the Intervention Act, the financial institution whose assets are sold does not have an access to a court in order to challenge the price for which the assets are transferred. Schild concludes that this absence of an access to a court violates the European Convention, in particular section 1 of the First Protocol of the ECHR and section 6 ECHR.
Schild also concludes that section 2:20, of the Dutch Civil Code may violate the ECHR. Pursuant to this provision, legal persons that are placed on a European list of terrorist organizations are, by title of law, forbidden and unable to carry out any legal acts. This results, amongst others, in the freezing of bank accounts. Schild argues that the European Union does not offer sufficient remedies for organizations that are placed on the European list of terrorist organizations. He proposes that the European Union should provide for a sufficient remedy in order to enable organizations which have been placed on this list, to challenge their listing.
Alexander Schild will defend his thesis at Leiden University, on November 6, 4.15 PM sharp. Prof. L. Timmerman and Prof. T. Barkhuysen act as PhD-supervisors. More information can be found here.