A written article of association and a long-standing unwritten practice cannot both control a fifty-fifty joint venture once one shareholder decides to rely on the text. You have three practical routes: let the practice continue and accept that either side can drop it at will, formalise it by amending the statuten (articles of association) or signing a shareholders' agreement that matches what has actually happened, or invoke the articles as written and require the other side to justify the deviation. Waiting costs nothing today and potentially everything the day the practice stops.
What happens if you do nothing
The informal practice keeps running on trust, not on anything a court will enforce. Because it is a matter of corporate law and governance rather than contract, either 50% holder can revert to the literal articles at any point, without notice and without breach. If the relationship is otherwise stable this may never matter. If it is not, you find out the practice had no legal weight at the exact moment you needed it to hold.
In a true fifty-fifty structure, neither side can force a resolution through the other. Doing nothing therefore does not preserve the status quo; it preserves the ability of either party to change the status quo unilaterally.
The routes
| Route | What it takes | Time | Cost driver | What it gives you |
|---|---|---|---|---|
| Continue informally | Nothing formal; reliance on ongoing goodwill | Indefinite, until one side stops | None directly, but full exposure on breakdown | No legal certainty; the practice can be dropped at will |
| Formalise the practice | Unanimous shareholder resolution, notarial deed of amendment or a signed shareholders' agreement | Weeks to a few months | Notarial and drafting work | A binding text that matches what actually happens |
| Enforce the articles as written | A written demand, then civil proceedings before the Dutch court if refused | Several months | Court fees and the volume of work needed to evidence the deviation | A ruling on the literal text, not a rewrite of the relationship |
| Inquiry proceedings at the Ondernemingskamer (Enterprise Chamber) | A petition where the standing threshold is met and governance is genuinely dysfunctional | Several months | Court fees, filing and the scope of the investigative measures ordered | An investigation, interim measures, and potentially a governance order |
What decides between them
The first question is whether either shareholder would actually agree to formalise the practice. Amendment of the articles needs unanimity in most fifty-fifty structures, and a dispute about which practice controls is a poor starting point for unanimous consent. If agreement is realistic, formalising is cheaper and faster than any court route.
The second question is whether the disagreement is a one-off or a genuine deadlock. A single contested decision is usually resolved by enforcing the articles as written. A pattern of the co-shareholder disregarding governance altogether, missed meetings, unexplained payments, decisions taken outside the board, points towards inquiry proceedings rather than a single civil claim.
Where a director's departure from the articles has already caused measurable loss to the joint venture, the analysis can move beyond a shareholder dispute into a question of improper management liability under Book 2, and who files it and where. That is a separate route with its own standing rules.
The deadline that runs
There is no fixed statutory countdown that starts the day the informal practice diverges from the articles. What runs instead is the ordinary limitation period for challenging a shareholder resolution taken under the disputed practice, under the applicable Dutch rules: once that period lapses, the resolution stands regardless of whether it matched the articles. The practical deadline is therefore tied to each resolution, not to the practice as a whole.
Delay also erodes evidence. Witnesses forget which practice applied to which decision, and correspondence gets deleted in the ordinary course of business. The deadline that matters most in the first weeks is the one you set yourself for preserving proof.
Evidence to secure now
Collect every board resolution, minute and email that shows the practice in operation, not just the articles themselves. Distribution records, voting patterns and any prior legal advice on the point are all relevant once a dispute is framed as practice against text.
Obtain a current extract from the Trade Register to confirm who is formally registered as director and how the shareholding is recorded; the register frequently lags behind what has actually been agreed informally. If the co-shareholder itself sits inside a group with obligations abroad, for example a parent with filings in Ireland, checking those filings directly is often the fastest way to see what has actually been resolved at parent level.
If the dispute has already touched the company's own compliance history, check whether the annual accounts were filed late and it was noticed in this same joint venture. A pattern of filing gaps often runs alongside a pattern of governance drift.
Cost drivers
Formalising the practice costs a notarial deed and the drafting work behind it; the size of the shareholding and the complexity of the deviation drive the volume of work, not a fixed tariff. Enforcing the articles through the Dutch court adds court fees on top, scaled to the value in dispute. Inquiry proceedings add the cost of the petition itself and, if measures are ordered, the scope of what the Enterprise Chamber directs.
None of these routes carries a cost you can price from this page. What drives the total in every case is how much evidence has to be assembled and how contested the underlying facts are, not the route chosen in the abstract.
What we would do in the first week
Pull the current articles of association and a fresh Trade Register extract, and set them side by side with whatever record exists of the informal practice. Map every decision taken under the practice in the last two years and flag which ones would have gone differently under the literal text.
Establish whether the co-shareholder would consider formalising the practice before any position is taken publicly. If the relationship has already deteriorated to the point where that conversation is not realistic, the fork narrows to enforcement or, where governance has genuinely broken down, an inquiry petition.
If the joint venture's assets are pledged to a lender, check that exposure separately and early: once a bank enforces its pledge and leaves nothing for other stakeholders, the governance dispute can become academic within weeks.
What this does not cover
- Drafting or negotiating the amended articles or shareholders' agreement itself.
- Tax consequences of formally restructuring the joint venture.
- Disputes in a joint venture that is not genuinely fifty-fifty, where majority mechanics change the fork entirely.
- Proceedings already commenced before a Dutch court on the same facts.
- The separate question of what a foreign parent must do under its own home jurisdiction's law.
Questions
Can one 50% shareholder force the other to follow the written articles instead of the long-standing practice?
As a matter of principle, yes, unless the practice has been converted into a binding resolution or a signed agreement. The deciding factor is whether the deviation was ever formalised, not how long it ran.
Does a long-standing informal practice ever override what the articles of association say?
Not automatically under the applicable Dutch rules. A sustained practice can support an argument in specific circumstances, but the written articles generally prevail until they are formally amended.
What happens if the fifty-fifty structure means neither side can push an amendment through?
That is deadlock, not stalemate without consequence. The options narrow to a negotiated exit, any deadlock-break mechanism already in a shareholders' agreement, or an inquiry petition if governance has broken down enough to meet the standing threshold.
Charlotte Roos — Tax and structuring. Sanne works on shareholding structures, holding arrangements and the practical steps that follow when a joint venture's governance no longer matches its documents.
Before instructing anyone to act, the usual next step is a short route note setting out which of these three forks applies on your specific facts, not a general lecture on Dutch law in this area. That sits within the firm's shareholder disputes work. A structure report sets out the current shareholding, the registered directors and the filing history from the Trade Register for this specific joint venture, and is the usual starting point before any of the three routes above is chosen. A dispute of this kind will, if it proceeds to litigation, be conducted with Dutch-qualified counsel of record before the competent Dutch court.
Last legal review: 2026-10-08