Under Dutch law, where a debtor is in default on his payment obligations, the pledgee is entitled to enforce the pledge securing these obligations, and sell the collateral in a public auction. But to sell the collateral (here: pledged shares) in a private sale permission from the Court is required (article 3:251(1) DCC). In these proceedings Credit Suisse requested the Court to grant such permission.

The Court ruled that a sale of pledged shares under article 3:251 DCC does not constitute a violation of article 1 First Protocol to the European Convention on Human Rights. Article 3:251 DCC satisfies the requirement of lawfulness: it is sufficiently accessible, precise, foreseeable in its application, and compatible with the rule of law, as it strikes a fair balance between the interests at stake. The interference also pursues a legitimate aim: it serves to protect the rights of the creditors.

The debtor (the parent company of the pledgor) is in default under the Facilities Agreement. The default is also ‘continuing’. There is no evidence that Credit Suisse waived the default in writing or that it waived the non-waiver clause in the Facilities Agreement. Therefore, the Court assumes that the Estoppel defence, raised in proceedings pending in Hong Kong, will fail. This brings the Court to the conclusion that there is not a sufficient reason to stay these proceedings and to await the outcome of the Hong Kong proceedings.

The Court ruled that the proposed private sale would deliver maximum value for the pledged shares and granted the permission requested.