The WHOA (Dutch Scheme): How this Cross-Border Restructuring Tool Works, And What It Asks of a Security Agent

Since it entered into force on 1 January 2021, the Wet homologatie onderhands akkoord (the “WHOA”, or Dutch Scheme) has stopped being a domestic curiosity and become a fixture of European restructuring. What matters most for lenders and debt funds is not simply that it exists, but that it has been tested at international level. It carried the Steinhoff restructuring, one of the largest to date, and has been run in parallel with proceedings in other jurisdictions: alongside US Chapter 11 for Diebold Nixdorf, an English scheme for Vroon, and a UK restructuring plan for McDermott, where the Dutch court’s international jurisdiction was contested and upheld. The WHOA is now a cross-border venue of choice, not a local fallback.

For the security agents who hold collateral for these lenders, that shift makes the tool something to understand on its own terms, both for its attractions and for the demands it places on those enforcing security.

Why the WHOA attracts cross-border restructurings

The appeal is a combination of speed, cost, flexibility and certainty that few peer regimes match.

It is a pre-insolvency, debtor-in-possession procedure with limited court involvement: the court intervenes only when asked, to order a cooling-off period, rule on a discrete issue, or confirm the plan. Stakeholders are divided into classes; a class approves by a two-thirds majority in value of those voting, with no headcount or numerosity requirement of the kind the English scheme imposes. The court can confirm and cram down dissenting classes provided at least one “in the money” impaired class has voted in favour, subject to the best-interests-of-creditors test — no creditor may be left worse off than in a liquidation.

The process is fast and adaptable. A confirmation hearing typically follows the vote within one to two weeks. A debtor can restructure only its financial debt while leaving trade creditors untouched, amend or terminate onerous contracts, and draw on supporting measures: a stay on enforcement for up to four months, extendable to eight; the appointment of a restructuring expert or observer; and binding pre-vote court rulings on issues such as class composition, which reduce the risk of failure at confirmation. Court fees for WHOA proceedings were reduced in July 2025, reinforcing the cost advantage. The WHOA also expressly accommodates group restructurings, which is much of why international holding structures find it attractive.

WHOA public vs private procedure

A defining feature is the choice between two procedures. The public procedure is listed in Annex A to the EU Insolvency Regulation and so benefits from automatic recognition across EU member states. The private, confidential procedure is not, and relies on private international law for cross-border effect, but it keeps the restructuring out of the public domain, often decisive for a business worried about customers, suppliers and counterparties.

The Dutch nexus required: COMI and sufficient connection

International reach does not mean the WHOA is available to anyone. A connection to the Netherlands is required, and the threshold differs between the two routes.

The public procedure depends on the debtor’s centre of main interests being in the Netherlands, which is what engages jurisdiction under the EU Insolvency Regulation and, in turn, automatic EU-wide recognition.

The private procedure is more accommodating. It is open to a debtor with its COMI or registered seat in the Netherlands, and also to a debtor with a “sufficient connection” to the country. The explanatory memorandum gives examples: significant assets in the Netherlands; a substantial part of the debt to be restructured governed by Dutch law or subject to the Dutch courts; membership of a group a substantial part of which is established in the Netherlands; or liability for the debts of another group company over which the Dutch courts have jurisdiction. Jurisdiction is determined by the court at the first hearing, and — as McDermott shows — it can be contested. The connection must therefore be real and defensible, not merely asserted; establishing it is part of the planning, not an afterthought.

WHOA vs English scheme, restructuring plan and StaRUG

Against the principal alternatives, the WHOA’s profile is distinctive.

The English scheme of arrangement has no cross-class cram-down and requires a majority in number as well as 75 per cent by value in each class.

The English restructuring plan (Part 26A) introduced cross-class cram-down but remains comparatively court-intensive (the court must be satisfied that the statutory conditions for sanction are met, including the “no worse off” test for dissenting classes and support from at least one in-the-money class), subject to uncertainty due to several challenges (over valuation, fairness…), and public.

Germany’s StaRUG, enacted under the same EU Restructuring Directive, is capable and can support cross-class cram-down but generally more procedurally prescriptive (StaRUG uses a formal court-backed restructuring plan process with defined class voting and confirmation requirements, including the German 75% class threshold described in practice materials).

The WHOA’s lighter court involvement, absence of a numerosity test, confidentiality option and broad (but bounded) jurisdictional reach are what set it apart. The trade-off for limited court supervision is that much of the contest shifts to valuation and to the drafting of the plan.

How the WHOA treats secured creditors

Secured creditors have their own class. A claim is treated as secured only up to the value of the collateral, with the excess ranking as ordinary. Valuation, assessed on a going-concern or reorganisation basis, therefore does much of the work.

The Dutch Supreme Court’s ruling of 25 October 2024 clarified two points for secured lenders:

• A WHOA plan can alter the statutory ranking of security rights among creditors, since ranking is an existing right capable of amendment, but only within the absolute priority rule, and any deviation invoked by a dissenting creditor requires a reasonable ground that does not prejudice it.
• At the same time, a plan cannot compel a financier to advance new money, or to lend under a committed facility on amended terms.

The WHOA can also reach guarantees and security granted by co-liable group companies, which affects how a secured creditor should assess its overall recovery.

What the WHOA means for a security agent

For a security agent, the WHOA rewards the discipline of good security work brought forward, because the questions that decide a restructuring arise long before enforcement is contemplated.

Valuation is the central contest. The going concern or reorganisation value ascribed to the collateral determines how much of the claim is treated as secured, and the ranking of the security determines where it sits; both should be capable of clear demonstration when a plan is tested. An agent should ensure the security package, together with any parallel-debt and intercreditor mechanics, is documented so that the secured claim, its priority and the identity of the voting creditor are unambiguous. Where class composition or the valuation underpinning a plan is open to question, the WHOA’s facility for binding pre-vote court rulings can be used to settle the point early rather than at confirmation.

Enforcement is not the lever it would ordinarily be. During a cooling-off period the security cannot be enforced, so influence lies in the vote and in a credible liquidation-value case under the best-interests test, not in immediate action. When the agent acts, it should confirm its authority and instructions under the finance documents and follow them precisely; in a syndicated structure that means acting on the direction of the requisite majority, not exercising independent judgment.

The cross-border dimension deserves particular attention. A public plan is recognised automatically across the EU; a private plan is not, and its effect elsewhere turns on local recognition rules. For security or debt governed by English law, the rule in Gibbs means an English court may not treat the obligation as discharged or varied by a Dutch plan unless the creditor has submitted to the process: by voting or otherwise participating. Whether, and how, an agent engages can therefore carry consequences well beyond the vote itself.

A forward look

The WHOA has been formally evaluated, with a government response published in late 2025, and refinements will follow as the case law matures. The direction, though, is settled: the Dutch Scheme has proven itself internationally, and it repays careful preparation on jurisdiction as much as on security long before a plan is proposed.