Working Alongside US Lead Counsel on Dutch Transactions

How Dutch counsel can support US-led acquisitions, investments and restructurings involving Dutch companies

US law firms often lead cross-border acquisitions, investments and restructurings involving Dutch companies. The main transaction documents may follow a US-style structure. The reporting process, client communication, negotiation rhythm and signing-to-closing timetable may also be driven by US counsel.

That can work well. Dutch counsel does not need to turn the transaction into a separate local-law exercise. The real value is to identify where US-style documentation needs Dutch legal adjustment, where Dutch corporate law requires separate implementation, and where local closing mechanics may affect the wider deal timetable.

This article is part of ViottaLaw’s Dutch Counsel in Cross-Border Transactions insights and connects to US SPA Templates in Dutch M&A: What Needs to Change?, Cross-Border Dutch Deal Implementation, Dutch Notarial Mechanics in Cross-Border M&A and Dutch BV Governance for US and UK Investors.

US-style documentation is often a useful starting point

US-style transaction documents can provide a strong commercial and drafting framework. They are often clear on deal economics, closing deliverables, representations, interim covenants, indemnity mechanics, financing conditions and post-closing obligations.

The issue is not that US-style documents are unsuitable for Dutch transactions. The issue is that they cannot simply be used without local-law adjustment.

A Dutch BV share transfer, share issuance, merger, restructuring, investment round or governance arrangement has its own legal mechanics. Some points can remain in the main transaction documents. Others need Dutch ancillary documents, shareholder resolutions, board resolutions, amendments to the articles of association, notarial deeds or separate governance documentation.

A good Dutch counsel review should therefore preserve the lead counsel’s structure where possible and adjust only where Dutch law or practice requires it.

Where Dutch law usually requires adjustment

The first adjustment area is corporate authority. A US-style signing block or officer certificate may not be enough. Dutch counsel should review the articles of association, board rules, shareholder approvals, signing authority and any restrictions on representation.

The second area is share transfer and share issuance mechanics. Transfers and issuances of shares in a Dutch BV usually require a Dutch notarial deed. Closing cannot be treated purely as a document exchange between counsel. The notarial process, KYC, powers of attorney, legalisation, apostilles and funds-flow timing must be built into the closing agenda.

The third area is governance. Investor consent rights, reserved matters, board rights, observer rights, information rights, drag-along, tag-along and leaver provisions can often be used in Dutch structures, but they must be aligned with Dutch corporate law and the articles of association. See also Shareholders’ Agreements After Dutch Acquisitions and the Shareholders’ Agreement Lawyer Netherlands page.

The fourth area is the signing-to-closing period. Conditions precedent, regulatory approvals, works council processes, Vifo analysis, third-party consents, bring-downs and closing deliverables need to reflect Dutch timing and local execution requirements. For more on this, see Signing-to-Closing Mechanics in Dutch Cross-Border Deals.

How Dutch counsel should review US-style documents

Dutch counsel should not turn every document review into a full rewrite. That is rarely helpful for US lead counsel or the client.

The more practical approach is to separate comments into three categories.

First, issues that require changes to the main transaction documents. These include Dutch-law conditions precedent, approval requirements, notarial closing mechanics, regulatory triggers, Dutch corporate warranties and governance provisions that must be reflected in the SPA, investment agreement or restructuring agreement.

Second, issues that can be handled through Dutch ancillary documentation. These may include board approvals, shareholder resolutions, powers of attorney, notarial deeds, amendments to the articles, accession deeds, register updates and post-closing filings.

Third, implementation points that should be tracked in the closing agenda but do not require substantial negotiation. Examples include KYC, apostilles, authority evidence, signatory identification and notary coordination.

This division allows US lead counsel to keep control of the principal deal documents while ensuring that Dutch legal requirements are addressed.

Working relationship with US lead counsel

The best Dutch local counsel relationship is disciplined, responsive and non-duplicative.

US lead counsel should not receive lengthy academic explanations of Dutch law unless the issue genuinely requires it. They need concise comments, clear drafting suggestions, red flags that matter, and practical input on timing.

Dutch counsel should also understand the role of lead counsel. The US firm may own the client relationship, the negotiation strategy and the overall transaction architecture. Dutch counsel should support that role rather than create a parallel process.

That means aligning with the lead counsel’s style. If lead counsel works in a master issues list, Dutch input should be inserted there. If they work through markup comments, Dutch drafting should be delivered in usable English. If they need a quick call before sending a markup to the client, Dutch counsel should be ready to explain the Dutch points commercially and briefly.

Common Dutch issues in US-led transactions

In acquisitions, the common Dutch issues are share transfer mechanics, notarial timing, corporate approvals, disclosure, works council consultation, Vifo or other regulatory analysis, restrictive covenants, leakage, claims mechanics and post-closing director changes.

In investment rounds, the key issues often include share issuance, pre-emption rights, amendment of articles, investor rights, preferred share mechanics, liquidation preferences, anti-dilution, pro rata rights and the relationship between shareholders’ agreement and articles.

In restructurings, Dutch counsel may need to address legal merger, demerger, share-for-share exchange, intercompany transfers, creditor protection, director approvals, financing arrangements, security releases and post-closing governance.

In all cases, the Dutch layer should be integrated into the main transaction timetable.

The notary should not be introduced too late

Many US-led transactions involving Dutch BV shares require a Dutch civil-law notary. That workstream should start early.

The notary will usually need KYC information, draft notarial deeds, corporate approvals, powers of attorney, authority evidence and sometimes legalisation or apostilles. Foreign signatories may need more time than expected to complete signing formalities.

If the notarial process is started only when the principal documents are nearly final, it can delay closing. Dutch counsel should therefore coordinate with the notary as soon as the structure, parties and expected closing steps are sufficiently clear.

Practical checklist for US lead counsel

At the start of the Dutch workstream, US lead counsel should ask for a concise Dutch transaction map: target entities, Dutch acquisition or investment vehicles, share transfer or issuance steps, required approvals, notarial actions, regulatory triggers, employee or works council issues, financing or security steps and post-closing governance actions.

Before the first markup, Dutch counsel should identify which provisions in the US-style document require Dutch legal changes.

Before signing, the Dutch workstream should include approvals, powers of attorney, CPs, notarial requirements, KYC, disclosure or diligence issues and closing deliverables.

Before closing, counsel should confirm that the Dutch notary, parties, signatories, funds flow, registers and post-closing filings are ready.

Practical conclusion

Dutch counsel working alongside US lead counsel should make the Dutch layer clear, practical and deal-focused.

The objective is not to replace the US-style transaction structure. The objective is to adapt it where necessary so that it works for Dutch corporate law, Dutch governance and Dutch closing mechanics.

For US lead counsel, the value of Dutch local counsel lies in early issue spotting, precise drafting input, clean coordination with the Dutch notary and practical guidance on what must happen before signing and closing.

FAQ

Can US-style transaction documents be used for Dutch transactions?

Yes, often they can be used as a starting point. They must be reviewed and adapted for Dutch corporate law, governance, notarial execution, approval requirements and local closing mechanics.

Should Dutch counsel rewrite the US transaction documents?

Usually not. Dutch counsel should preserve the lead counsel’s structure where possible and focus on Dutch-law changes, ancillary documents and closing implementation.

When does a Dutch notary need to be involved?

A Dutch notary is usually required for transfers or issuances of shares in a Dutch BV and for amendments to the articles of association.

What should US lead counsel ask Dutch counsel to review first?

The structure, target entities, articles of association, authority, share transfer or issuance mechanics, regulatory triggers, works council issues and closing timetable.

How should Dutch comments be delivered to US lead counsel?

Preferably in concise English, with a clear distinction between deal points, local-law drafting changes, ancillary documents and closing checklist items.

About Dirk de Waard

Dirk de Waard is a Dutch corporate, M&A and venture capital lawyer and partner at Venture Lawyers in Amsterdam. He advises US and international law firms, buyers, investors, sellers and deal teams on Dutch M&A, venture capital, private equity, restructurings, corporate governance and cross-border transaction implementation.

ViottaLaw is Dirk’s personal insights platform. Legal services are provided through Venture Lawyers.

Need Dutch counsel for a US-led transaction?

US-style documentation can often be used in Dutch transactions, but it must be mapped against Dutch corporate law, governance, notarial mechanics and closing requirements.

Dirk de Waard works alongside US lead counsel on Dutch acquisitions, investments and restructurings. Contact Dirk at dirk.dewaard@viottalaw.com to discuss the Dutch workstream, document review and closing implementation for a US-led transaction.