A supervisory board member wants access — Dutch-language

# A supervisory board member wants access to the deal file when the file is in Dutch and your board is not

A supervisory board member who is refused sight of the underlying deal file, where the only version in existence is a Dutch file and the board does not read Dutch, stands at a fork. Press the request as an ordinary information right, backed by a translation demand, or treat the refusal as a governance failure serious enough to test before the Enterprise Chamber (Ondernemingskamer). The first route is internal, cheap and slow. The second is judicial, faster once filed, and public. Which one fits depends on whether you need the papers or need the board's conduct to change.

What happens if you do nothing

If you let the point drop, the transaction proceeds on the terms the management board has already agreed, and the discharge granted to that board at the next general meeting will cover conduct you were never able to review. Nothing tolls in your favour by waiting: the file does not become easier to read with time, and your own exposure as a supervisory board member for approving a transaction you could not assess in Dutch does not diminish. Passivity here is itself a decision, and it is the one that removes your options.

The routes

The table sets out the three practical paths, in the order most boards try them.

Route	What it takes	Time	Cost driver	What it gives you
Direct request with a translation demand	A written request to the management board, referencing your ordinary right to information, with a fixed deadline for a Dutch-to-English rendering of the file	Days to a few weeks, entirely informal	The cost of the translation itself, professional not court-set, if you commission it privately	Either the file, translated, or a documented refusal you can rely on later
A supervisory board resolution recording the refusal	A board minute, adopted by the supervisory board as a body, stating that the request was made and what response followed	One board cycle, typically weeks	Internal only, no court fee	A governance fact, not a private grievance, that can be produced in any later proceeding
Inquiry proceedings before the Enterprise Chamber	A petition showing well-founded reason to doubt the propriety of policy or conduct, filed by Dutch-qualified counsel of record	Provisional measures can follow within weeks of filing; the inquiry itself runs longer	A court fee applies, set by the Dutch courts and not stated here as a figure; the time of counsel preparing the petition is the larger driver	A court-appointed investigator with access to the file independent of management's cooperation, and the possibility of interim relief, including suspension of the transaction

What decides between them

The first question is whether the file itself is the problem, or whether the refusal is a symptom. If a functioning working relationship with the management board exists and the gap is purely linguistic, the translation route resolves it without touching the relationship. Where the deal sits within corporate law and governance more broadly, and the refusal follows a pattern, for example where a parent has instructed a decision that later harmed the company's creditors, as in the joint venture situation described here, the informal route is unlikely to change anything and the Enterprise Chamber becomes the realistic option. A comparable fork arises where a tag-along right was ignored in a change of control and the deal papers were, again, a Dutch file the affected party could not read unassisted. The size and reputational weight of the transaction, and how close the next general meeting sits, also weigh on the choice.

The deadline that runs

There is no single fixed clock on a request for information as such, but under the applicable Dutch rules a supervisory board member's practical room to challenge conduct within a financial year narrows sharply once the general meeting has granted discharge for that year. If the transaction is on the agenda for approval, or discharge for the relevant period is coming up, that meeting date is the deadline that actually governs your timing, not any period stated in the request itself.

Evidence to secure now

Keep every request you sent, dated, in the language it was sent in. Keep the refusal in writing, or, if there was none, record the date silence set in. Keep the board minutes showing the item was on the agenda and how it was resolved. Keep any partial or summarised version offered in place of the original file, since a summary offered instead of the underlying document is itself a fact worth recording. Where the counterparty behind the deal sits behind a foreign holding structure, independent verification of that chain, such as the pattern set out in an ownership chain report for a Gulf counterparty, can run alongside your request rather than waiting on it.

Cost drivers

On the internal route, the only real cost is a private translation of the file, a professional cost and not a court fee. On the Enterprise Chamber route, a court fee applies to the petition and is set by the Dutch courts; it is not the dominant cost. The larger driver is the time spent by Dutch-qualified counsel of record preparing the petition and supporting evidence, measured in hours, not in a rate we state here. Neither route carries a cost that scales with the value of the underlying transaction.

What we would do in the first week

Day one to two: send the written request with the translation demand and a short deadline attached to it. Day three to five: whichever way the board responds, record it in the supervisory board's own minutes so the refusal or the delay becomes a governance fact rather than a private complaint. Day five to seven: assess whether this is a single missing document or the whole due diligence file, and take instructions on whether the pattern justifies a petition to a Dutch court under the inquiry procedure.

What this does not cover

It does not cover the substantive merits of the transaction itself, only your access to the file that describes it.
It does not cover a dispute between shareholders as such; a different route governs that, even where the same Dutch file is at issue.
It does not cover a claim against directors for the transaction's consequences, which sits in a different analysis.
It does not cover a trustee's later claim to claw back a payment received in good faith once insolvency intervenes; that is a separate fork with its own deadline.
It does not cover translation as a certified legal formality; where the file is to be used before a Dutch court, separate rules on form apply.

Questions

Can a supervisory board member insist that the deal file be translated?

Translation is not a separate statutory right, it is the practical way the ordinary information right is exercised where the board cannot read the original. A refusal to translate, once formally requested, is itself evidence you can rely on in any later escalation.

Does the board's lack of Dutch change its statutory duties?

No. Under the applicable Dutch rules, the duties of a supervisory board member do not vary with the language the board works in. What changes is the practical difficulty of exercising the information right, not its existence.

What does an Enterprise Chamber investigator get that an ordinary request does not?

Once appointed by a Dutch court, the investigator obtains access to records independent of management's willingness to cooperate, and the resulting report can be used in follow-on proceedings, including a request for interim measures.

About this material

Sanne de Wit, Structures, holding and tax, prepared this brief. Her work concerns the structural exposure created when a governance information gap sits behind a cross-border holding chain, which is exactly the position a foreign-language board occupies when the underlying deal file exists only in Dutch.

A supervisory board member wants access to the deal file when the file is in Dutch and your board is not