Dutch Supreme Court Getir ruling: a board seat is not always enough protection for foreign investors
Corporate / M&A lawyer Dirk de Waard explains the key lessons from the Dutch Supreme Court’s Getir ruling of 10 April 2026. The ruling is relevant for foreign investors, private equity investors, founders and board members involved in Dutch companies, especially where shareholder-appointed directors or supervisory board members are part of the governance structure.
Key takeaways:
- A director with a conflict of interest cannot decide for himself whether he may participate in board decision-making.
- Fellow directors must actively assess whether another director is conflicted, even if that director has not disclosed the conflict.
- If a conflict exists, the conflicted director must be excluded from the deliberation and decision-making process.
- For foreign investors and PE investors, this means that a Dutch board seat may not always provide the expected level of protection.
- Articles of association and shareholders’ agreements should therefore include clear rules for conflicted board decisions.
Foreign investors often rely on board seats to protect their position in Dutch companies. In Dutch corporate law, this is particularly common in private equity, venture capital, joint venture and strategic participation structures, where investors negotiate the right to appoint a director or supervisory board member as part of their investment package.
The Dutch Supreme Court’s Getir ruling shows why that protection has limits.
The case is relevant not only for directors, but also for shareholders. If a director has a conflict of interest, the other directors may have to exclude that director from the board discussion and decision-making process. That also applies if the conflicted director has not disclosed the conflict himself. For investors, this means that a board seat may be neutralised precisely when the relevant decision is most important.
The Getir structure: founder shareholders, investor financing and a distressed transaction
Getir B.V. was the Dutch holding company of the international Getir group. The group had a one-tier board, with executive directors and non-executive directors. The founder-directors were also shareholders. At the same time, a major shareholder and financier, Mubadala, had provided substantial financing to the group.
This is a familiar structure in international investment practice. A Dutch holding company sits above an operating group, founders retain an equity position and board influence, and an institutional investor or financier holds both an economic stake and significant financing leverage. In distressed situations, that structure can become highly sensitive because any restructuring may shift value between founders, investors, lenders and group companies.
That is what happened in Getir. A transaction was proposed under which certain subsidiaries would be transferred to the major shareholder/financier in exchange for the release of substantial debt. The founder-directors had previously become party to a term sheet under which they had a personal interest in acquiring shares in certain Getir subsidiaries. The proposed transaction would make performance of that term sheet impossible.
The executive directors therefore considered that the founder-directors had a conflict of interest and should not participate in the relevant board decisions. The founder-directors disagreed.
The question before the Supreme Court was practical and important: who decides whether a director is conflicted and must stay out of the boardroom?
What changed after Getir?
Under Dutch law, a director may not participate in deliberations and decision-making if he has a direct or indirect personal interest that conflicts with the interest of the company and its business. That statutory rule was already clear.
What was less clear was the process. In practice, the focus was often on the potentially conflicted director. He was expected to disclose the conflict and recuse himself. If he did not do so, fellow directors could more easily argue that they were entitled to proceed unless the conflict was obvious.
The Supreme Court has now clarified that this is too passive.
A director with a possible conflict of interest must disclose it to his fellow directors. But if there is disagreement, it is not for the potentially conflicted director to decide whether he may participate. The other directors must assess the position and, if they conclude that a conflict exists, must actively ensure that the conflicted director does not take part in the deliberations and decision-making. This also applies if the director has not disclosed the possible conflict at all.
The court remains the ultimate reviewer afterwards. But the board must make the process decision first.
Why this matters for directors
For directors, the Getir ruling turns conflict-of-interest management into an active responsibility. It is no longer sufficient to assume that each director will self-police his own position.
If the facts suggest that a fellow director may have a personal interest that is incompatible with the company’s interest, the board must address the point. That requires a careful process: identify the potential conflict, allow the issue to be discussed, decide whether the director may participate, and record the reasoning properly.
This matters especially in M&A transactions, rescue financings, shareholder disputes, related-party transactions, founder exits, management roll-over arrangements and group restructurings. These are precisely the situations in which directors may have different economic exposures through shareholdings, debt positions, incentive plans or shareholder nomination rights.
The risk is not merely theoretical. A failure to apply the conflict-of-interest rules correctly may affect the validity of the board decision and may raise questions about proper performance of directors’ duties.
Why this matters for shareholders and PE investors
For shareholders, the ruling is even more strategic.
In private equity, venture capital and joint venture structures, board appointments are often treated as a key investor protection. A shareholder may not control the company, but it may have the right to appoint a director or supervisory board member. That person gives the investor visibility and influence over important decisions.
Getir shows the vulnerability in that protection.
If the other directors conclude that your appointed director has a conflict of interest, that director may be excluded from the relevant board process. In grey-zone situations, that can be a very powerful procedural tool. The remaining directors may themselves have been appointed by other shareholders or may have a different view of the company’s interest.
The result is that influence may shift away from the shareholder whose economic position is directly affected. For foreign investors in Dutch companies, that is the main practical lesson: a board seat is valuable, but it is not the same as a hard veto right.
The drafting lesson: move key conflicted decisions to the shareholders
Investors should not rely only on the statutory default rules. The better approach is to address conflict scenarios expressly in the articles of association and the shareholders’ agreement.
For example, the articles may provide that certain board decisions involving a conflict of interest require prior approval of the general meeting. A shareholders’ agreement can also include reserved matters, escalation mechanisms, enhanced information rights, independent director procedures and specific rules for related-party transactions.
This does not remove the conflict-of-interest rules, but it changes the governance architecture. It moves the ultimate decision on sensitive matters to a forum where the shareholder itself has a seat, rather than relying solely on a nominee director who may be excluded.
That point is particularly relevant for foreign investors who are setting up a Dutch holding structure or acquiring a minority position in a Dutch B.V.
Need advice on Dutch corporate governance or shareholder protection?
Foreign investors, founders and PE investors should not rely on board appointment rights alone. In Dutch companies, especially in PE-backed, venture-backed and joint venture structures, the articles of association and shareholders’ agreement should contain clear mechanisms for conflicted board decisions, reserved matters and shareholder approval rights.
Dirk de Waard advises foreign investors, entrepreneurs and companies on Dutch corporate law, M&A transactions, shareholder arrangements and governance disputes.
For advice on Dutch B.V. governance, shareholder protection or investment structures in the Netherlands, please contact dirk.dewaard@viottalaw.com.
