In business partnerships, you trust that agreements will be kept. But what if that trust is broken and your company has no formal shareholder status with the company you have concerns about? Then it can be tempting to use the right of inquiry to the Enterprise Chamber to have an investigation into the policy and affairs of that company. However, a recent ruling by the Enterprise Chamber of the Amsterdam Court of Appeal makes it clear that this path has more obstacles than many companies expect. For anyone working together under an agreement without direct shareholder involvement, this ruling is an important wake-up call.
What is the right of inquiry and why is it relevant?
The right of inquiry is a powerful legal instrument that allows certain stakeholders in a company to ask the Enterprise Chamber to investigate the policy and affairs of that company. The Enterprise Chamber can also take immediate measures, such as appointing an independent director or suspending the incumbent board. This makes the right of inquiry one of the most far-reaching and effective instruments in Dutch company and dispute law.
The law determines who is authorised to file a request for an inquiry. Pursuant to Article 2:346 paragraph 1 opening words and subsection b of the Dutch Civil Code (BW), these include holders of shares or depositary receipts representing a certain minimum interest. A contracting party that does not hold shares or depositary receipts is, in principle, outside that circle. Nevertheless, there is case law on the basis of which such a party can be equated with a shareholder or depositary receipt holder under circumstances. The question of when that equivalence applies is all-important in practice.
The ruling: Enterprise Chamber 20 November 2025
In this case, a private limited company (hereinafter Wood) had requested an inquiry into two companies on the basis of a cooperation agreement with the other party. Wood itself held no shares or depositary receipts in those companies. The foundation trust office (StAK) held all shares in one company and the depositary receipt holder held all depositary receipts for those shares, as well as all shares in the other company.
Wood based her right of inquiry on a partnership agreement she had entered into in 2023, which had subsequently been amended through several addenda. According to Wood, there were three reasons why she should be equated with a certificate holder. First, the certificate holder had contractually sold 20% of its depository receipts to Wood for a purchase price of one euro, in return for services Wood was required to provide. Second, a pledge was to be established in favour of Wood on those same certificates. Thirdly, Wood claimed to have a current account receivable from the companies.
The Enterprise Chamber declared Wood inadmissible in all its requests.
The crux of the reasoning: equivalence requires more than a contractual claim
The Enterprise Chamber tested Wood's situation against the yardstick formulated by the Supreme Court in 2014 in the Slotervaart hospital case. That yardstick means that the provider of risk-bearing capital who has its own economic interest in the company that is comparable to the interest of a shareholder or depositary receipt holder can be equated with such a shareholder or depositary receipt holder for the purposes of the law. Whether such equivalence actually applies depends on all the concrete facts and circumstances of the case.
In Wood, that test failed on all three fronts.
The right to transfer the depositary receipts was subject to two conditions: the group's loan-to-value had to be 60% or lower and certain third parties, such as financiers, had to agree to the transfer. At the time of the proceedings, none of these conditions were met and, moreover, it was uncertain whether they would ever be met. The Enterprise Chamber ruled that on this basis Wood could at most potentially become a holder of certificates in the future, but that this was insufficient for equivalence. As long as the delivery conditions were not met, the certificates were also not deemed to be held for Wood's account and risk.
On the pledge, the judgment was clear: no pledge had actually been established. Moreover, an established pledge on depositary receipts for shares would not provide a basis for an inquiry request anyway, because the statutory provision (Section 2:198(4) of the Civil Code) granting pledgees certain rights of depositary receipt holders only relates to shares and not to depositary receipts for shares. Nor had the contractual obligation to establish a pledge been converted into an actually established pledge.
Finally, the current account claim, the Enterprise Chamber summarily rejected as a basis for assimilation. A claim that is not due and not secured simply does not qualify as risk capital.
No unacceptable interference with the right of inquiry
Wood further argued that denying access to the right of inquiry would constitute an unacceptable interference with that right. The Enterprise Chamber rejected that argument. It pointed out that Wood could claim compliance with the cooperation agreement, including compliance with contractual information obligations, in the ordinary civil courts. Requests for access to certain documents, based on Sections 194 and 195 of the Code of Civil Procedure, should also be submitted to the ordinary civil court. The Enterprise Chamber thereby emphasised that the right of inquiry is a special remedy with its own defined circle of competent applicants and that this demarcation is not eroded merely because a party believes it has interests along contractual lines.
What does this mean for your company in practice?
This ruling touches on a situation that regularly occurs in practice: two parties enter into a business partnership where one party provides services and the other party shares (part of) its business in return. Shareholding or an interest in the company is then contractually intended, but the actual transfer is deferred or linked to conditions.
As long as that transfer has not taken place, your company is in a legally vulnerable position in terms of corporate governance and control. You then do not have the legally recognised powers that shareholders or depositary receipt holders do have, such as the right to request an inquiry. And even if a pledge on shares or depositary receipts is contractually stipulated but not yet established, it offers no solace.
In practice, this means that if something goes wrong within the company in which you have an interest based on an agreement, you will have to rely on ordinary contract law to enforce your rights. You can claim performance of the agreement, you can claim damages for breach of contract and you can claim information through the civil courts if it is contractually promised. These are viable routes, but they are substantially different from an inquiry procedure. Delay, problems of proof and liability issues then play a bigger role.
The ruling also makes it clear that it is very important for companies intending to acquire a stake in another company to think carefully, when concluding the agreement, about what rights they will have as long as the transfer has not yet taken place. In practice, those who want to be able to co-manage or intervene in the event of mismanagement would be wise to arrange this explicitly and enforceably in the contract, and to have the formal transfer of shares or depositary receipts take place as early as possible instead of depending on uncertain external conditions.
What steps can you take?
If your company recognises itself in a situation where you are pursuing an interest in a company but that interest has not yet been formally converted into share ownership or depositary receipt ownership, there are several routes to strengthen your position.
In the first place, it pays to review existing cooperation agreements and shareholder agreements to see what rights you actually have as long as shares or depositary receipts have not yet been transferred. Are there contractual agreements on information, control or management influence? And are those agreements also enforceable in a legal sense? This sounds like a formality, but the difference between a contractual entitlement and an actually established right can mean the difference between success and inadmissibility in a dispute.
Secondly, when entering into new agreements, it is advisable to pause to consider how you protect your interests in case of mismanagement or conflict. Think about the time of transfer, the conditions set, how security rights are established and what rights you want to have as a contracting party if things go wrong. Having liens established in a timely manner, establishing information obligations and including dispute arrangements are concrete measures that can significantly strengthen your position.
Thirdly, if a conflict has already arisen, it is important to assess in good time which proceedings are most likely. The Enterprise Chamber is a special judge with a limited gateway. In many cases, the civil court offers more possibilities than is often assumed, especially if the contractual basis is sound. Also consider summary proceedings for urgent situations or claiming performance or damages in proceedings on the merits.
How TK can help
The judgment of the Enterprise Chamber of 20 November 2025 shows how important it is to assess in time which legal avenue is open and how to set up your contractual position properly. TK's Corporate & Commercial Litigation team has in-depth knowledge of corporate, inquiry and contract law and assists companies and institutions in complex disputes, both before the ordinary civil courts and the Enterprise Chamber.
Whether it involves reviewing existing agreements, advising on how to deal with an impending conflict, conducting proceedings in the civil courts or exploring the possibilities of the right of inquiry: TK thinks along with you and stands for an approach that works. From contractual liability issues to international dispute resolution and litigation, the team has the knowledge and experience to represent your interests effectively.
Find out more.
Do you have questions about your position as a contracting party, the possibilities of the right of inquiry or how to deal with a dispute with a company or co-shareholder? If so, please contact the Corporate & Commercial Litigation team. They will be happy to help you further.
