Who decides on conflicts of interest? The Dutch Supreme Court rules.
HR 10 April 2026, ECLI:NL:HR:2026:592 (Getir)
In early 2025, Getir — the international quick-commerce group with Turkish roots — was teetering on the edge of insolvency. Its largest creditor and shareholder, Abu Dhabi sovereign wealth fund Mubadala, had extended over USD 450 million in credit and issued an ultimatum: accept within 24 hours a transaction under which all subsidiaries would be transferred in exchange for debt forgiveness, or no further funding would be forthcoming. The founding shareholders — who had a very different deal in mind under an earlier Term Sheet — refused. On 10 April 2026, the Dutch Supreme Court (Hoge Raad) ruled on a central procedural question arising from the subsequent inquiry proceedings (enquêteprocedure): who decides whether a director has a conflict of interest?
Background
The executive directors of Getir determined that the founders — who sat on the board as non-executive directors — had a conflict of interest with respect to the decision on the Mubadala transaction. As shareholders, the founders had a personal stake in the performance of the Term Sheet; the proposed transaction directly undermined that. The executive directors therefore took the resolutions of 7 and 10 January 2025 without the founders' participation. The founders brought proceedings before the Enterprise Chamber (Ondernemingskamer), arguing that a director determines for himself whether he has a conflict of interest, and that fellow directors seeking to exclude him must go to court.
The Supreme Court's Ruling
The Supreme Court expressly rejected that position. The applicable framework is as follows:
A director with a possible conflict of interest has a duty of disclosure to his fellow directors — transparency comes first.
In the event of disagreement, it is not for the director concerned, but for the other directors, to decide whether he actually has a conflict of interest and should be excluded from deliberation and decision-making.
That applies even where the director concerned has not himself disclosed his possible conflict of interest.
The other directors are then responsible for ensuring that the director concerned does not in fact participate in the deliberation and decision-making on the matter.
This is the novum: it had previously been argued in legal commentary and practice that the director himself is the primary judge of his own position, and that fellow directors can only exclude him by going to court. The Dutch Supreme Court has now closed off that line of argument. The threshold for exclusion remains the Bruil criterion: a conflict of interest exists where it can reasonably be doubted whether the director will be guided solely by the interests of the company.
Why This Matters for the Financing Practice
The case is a textbook example of a creditor-in-control situation that is increasingly common in the Dutch market — particularly in the private credit and venture debt segment. Mubadala was simultaneously the largest creditor and the largest shareholder, and had secured direct influence over the company's decision-making through board nomination rights. The founders sat at the same board table as the Mubadala-nominated directors.
For financing practitioners, this judgment yields several concrete takeaways:
Governance structuring in financing transactions. A financier who has negotiated board nomination rights should factor in that its nominated director may, in any transaction to which the financier itself is a party, be identified as a conflicted director and excluded from deliberation — without any prior court order being required.
Decision-making in debt-for-equity swaps and restructurings. In restructuring scenarios — precisely the situations where a major creditor is also a shareholder — the question of who is entitled to participate in board deliberations will now be put more sharply. It is the other directors who determine who sits at the table.
Statutory and contractual arrangements. Section 2:239(6) of the Dutch Civil Code leaves room for deviation by the articles of association. Financiers wishing to retain influence over decision-making even where their interests as creditor and shareholder converge should address this explicitly in the articles and the shareholders' agreement — ideally already at term sheet stage.
LMA documentation and governance covenants. In syndicated facilities and private credit transactions with equity kickers or governance rights, it is worth anchoring the conflict of interest regime contractually, including the trigger point and the exclusion procedure. A conflict of interest provision in the shareholders' agreement is no longer a belt-and-suspenders luxury after this judgment — it is prudent drafting.
Conclusion
HR 10 April 2026 ends the debate over who holds the reins in the boardroom when a conflict of interest arises. It is the fellow directors — not the court as a first step, and certainly not the director concerned himself. For financiers who hold a stake at the table through board nomination rights and shareholdings, this is a prompt to critically review existing governance arrangements. The lesson is straightforward: when structuring a transaction, make sure the decision-making rules are clearly documented before financial pressure mounts and everyone ends up before the Enterprise Chamber.
This update is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created thereby.