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Part II Investment Firms and Investment Services, 8 Inducements »

Larissa Silverentand, Jasha Sprecher, Lisette Simons
From: Regulation of the EU Financial Markets: MiFID II and MiFIR
Edited By: Danny Busch, Guido Ferrarini
This chapter discusses the MiFID II inducement rules. During the negotiations on MiFID II, it became clear that inducements were a topic on which there was no easy agreement between the Member States. While certain Member States pressed for a total ban on inducements, others were unwilling to impose such strict rules. The political compromise allowed for deviating rules by those Member States requesting stricter rules. This may seem counter to the European legislator’s general approach to limit Member State options by creating ‘single rulebooks’ and greater regulation. The authors express disappointment that, on such an important topic, the European market will continue to have deviating rules per Member State. The Dutch legislator has already indicated that it will make use of this; according to the authors, other Member States where stricter rules apply may do likewise, leaving an un-level playing field for investment firms regarding the use of inducements.

22 The Netherlands »

Willem (Pim) Rank, Larissa Silverentand
From: Set-Off Law and Practice: An International Handbook (3rd Edition)
Edited By: William Johnston, Thomas Werlen, Frederick Link
This chapter discusses the law of set-off in the Netherlands. Under Dutch law, set-off operates as a mechanism for discharging claims. It allows a debtor to discharge his claim by reducing or extinguishing his creditor's claim by the amount of his cross-claim. There is no special regime for set-off clauses in finance documentation in the Netherlands. The chapter first provides an overview of set-off between solvent parties, focusing on statutory set-off, contractual set-off, and current account set-off. It then considers set-off against insolvent parties, taking into account the cooling-off period in bankruptcy, before turning to the so-called actio pauliana. It also explains specific provisions of the EU Collateral Directive aimed at protecting close-out netting provisions in a financial collateral arrangement. Finally, it analyses set-off in recovery and resolution of credit institutions and investment firms, along with issues arising in cross-border set-off.