Practice

Nienke has a busy and varied practice across the full spectrum of Chambers’ areas of expertise, with a particular emphasis on commercial and insolvency litigation. She has significant experience of high-profile, high-value litigation in the Chancery Division and Commercial Court, both appearing led (by QCs) and as sole advocate. Nienke’s work often includes an international element, with experience in offshore jurisdictions including (but not limited to) the British Virgin Islands, the Cayman Islands and the Dubai International Financial Centre. Nienke also has rights of audience in the AIFC Court in Kazakhstan.

Before coming to the Bar Nienke read law at renowned universities in various jurisdictions, including England (University of Oxford), the United States (Harvard Law School) and the Netherlands (Leiden University).

Practice areas

Commercial dispute resolution

Nienke advises and acts in a broad range of commercial disputes, both in the English Courts (Commercial Court and Chancery Division) and in foreign jurisdictions.

Examples of Nienke’s recent experience in this area include:

  • Acting for the Seventh Defendant in ArcelorMittal USA LLC v Ravi Ruia & ors. [2020] EWHC 3349 (Comm), resisting certain parts of the Claimant’s application to amend its Particulars of Claim which Henshaw J had found did not to set out a good arguable case in a previous Worldwide Freezing Order application. Mr Justice Butcher agreed with the majority of the Defendants’ points and awarded costs to the Seventh Defendant on a summary assessment. The claim concerns long-running litigation between two competitors in the steel and mining industry, and the Claimant’s pursuit of an arbitration award.
  • Acting for the Fifth Defendant (with David Railton QC and Andrew Mitchell QC) in Robert Tchenguiz & ors. v Grant Thornton & ors. [2018] (QB); litigation in which the property tycoon made allegations against the accountancy firm, two of its partners and a former lawyer of Kaupthing Bank (the Fifth Defendant) of conspiring to encourage the SFO to launch an investigation into him after the bank’s collapse in 2008. Mr Tchenguiz discontinued his claims hours before having to give evidence in the case, and was ordered to pay indemnity costs to the Defendants.
  • Acting for the Claimants (with Mark Phillips QC, Sharif Shivji and Eleanor Holland) in Chesterfield United Inc (in liquidation) & anor. v Deutsche Bank AG & ors [2016] (Ch), c €500 million litigation arising from the sale and purchase of credit linked notes (CLNs), including claims for tortious liability, unlawful means conspiracy, dishonest assistance and knowing receipt.
  • Acting (with Jonathan Crow QC) for the Appellant/Defendant in (1) Blue Tropic Ltd (2) Coppella Ventures Ltd v Ivane Chkhartishvili [2014] EWHC 2243 (Ch) in relation to a jurisdictional challenge concerning EC Regulation 44/2001.
  • Acting for the Claimants (with Richard Hill QC and Sharif Shivji) in the preparation for Rafed Al Khorafi & ors. v Bank Sarasin-Alpen (ME) Limited & anor. (CFI-026-2009), litigation in the Dubai International Financial Centre (DIFC) Courts, including claims for breach of statutory duty, breach of contract, misrepresentation and negligence.
  • Acting for the Defendants in Faizan Haq v ASOS.com Ltd [2015] (QB), and successfully obtaining a stay of proceedings, followed by a successful application to strike out the Claimant’s claims for breach of contract, (fraudulent) misrepresentation, conspiracy and discrimination.
Insolvency & restructuring

A significant portion of Nienke’s practice focuses on personal and corporate insolvency matters.

Nienke is regularly instructed in relation to large offshore insolvencies (BVI, Cayman Islands, etc.), and insolvencies with an international/cross-border element, including disputes over a debtor’s centre of main interest (COMI), and the Cross-Border Insolvency Regulation 2006 (CBIR). In the context of COMI, Nienke has successfully acted for creditors seeking to prevent or overturn bankruptcy orders on COMI grounds.

Recent experiences include:

  • Advising and acting for the Claimants (with Mark Phillips QC, Sharif Shivji and Eleanor Holland) in Chesterfield United Inc (in liquidation) & anor. v Deutsche Bank AG & ors. [2016] (Ch), in relation to applications for declarations of liability for fraudulent trading under s. 21(g) of the CBIR and s. 213 of the Insolvency Act 1986, and (Re Chesterfield United Inc) applications for information under s. 236 of the Insolvency Act 1986.
  • Various other cases (litigation and advice) arising out of the collapse of the Icelandic bank Kaupthing.
  • Advising receivers in relation to a BVI insolvency.
  • Acting for a German bank in Re Petra Lydia Eichorn (No. 1026 of 2012) and successfully preventing the debtor from obtaining a bankruptcy order in England & Wales (on the basis of COMI grounds).

Nienke also has significant experience in the Insolvency and Companies Court. She advises and acts for petitioners, creditors, debtors and insolvency practitioners in both high-value and lower value winding-up and bankruptcy proceedings. Nienke routinely advises and acts in all matters relating to the Insolvency Act 1986 and Insolvency Rules 2016, including (but not limited to):

  • (pursuing, resisting and annulling) winding-up petitions and bankruptcy petitions;
  • applications for change of carriage or substitution;
  • applications for validation orders;
  • disputed debt hearings in relation to winding-up petitions;
  • applications to set-aside statutory demands;
  • applications under s. 236 of the Insolvency Act 1986, and the liquidator’s power to investigate and obtain information more generally.

Examples of Nienke’s recent experience include:

  • Acting for the petitioning creditor in Re Arise Networks Ltd (No. 6418 of 2015), resisting the debtor’s attempts to dismiss the petition, and succeeding on its disputed debt hearing.
  • Acting for the petitioning creditor in Knight v APS Recycling [2014] EWHC 4620 (Ch), successfully resisting an application to set aside the statutory demand, the debtor’s appeal therefrom, and succeeding on the bankruptcy petition.
  • Advising and acting for liquidators in applications under s. 236 of the Insolvency Act 1986 in Chilton Transport (Bow) Ltd (in liquidation) v RBS and Chilton Transport (Bow) Ltd (in liquidation) v Edward Schwartz (No. 8010 of 2011).
Company law

Nienke has experience in a wide range of company law issues and frequently advises and represents companies and shareholders in relation to corporate disputes, such as:

  • unfair prejudice petitions under s. 994 of the Companies Act 2006;
  • just and equitable winding-up;
  • claims against directors and shareholders in relation to, for example, (breaches of) directors’ duties, dishonest assistance and (breaches of) directors’ authority (actual or apparent);
  • director disqualifications;
  • pre-emption agreements and the transfer of shares.

Nienke, furthermore, regularly advises and appears in connection with a broad range of applications in the Companies Court, including applications to restore companies to the companies register, the registration of charges, and correction of the register of members.

Examples of Nienke’s recent experience in this area include:

  • Advising and acting for the Claimants (with Mark Phillips QC, Sharif Shivji and Eleanor Holland) in Chesterfield United Inc (in liquidation) & anor. v Deutsche Bank AG & ors. [2016] (Ch), a case which included claims against the companies’ director for breach of its fiduciary duty, duty of care in negligence, and claims for dishonest assistance in relation thereto.
  • Acting (with Peter Griffiths) for the Eighth and Eleventh Defendants in Blindley Health Investments Ltd v Bass (a.o.) [2014] EWHC 1366, a case concerning pre-emption agreements restricting the transfer of shares, and issues of estoppel by convention.
  • Acting (with Paul Greenwood) for the petitioning shareholder in Re Giji Limited (No. 7384 of 2013), in a petition under s. 994 of the Companies Act 2006 (unfair prejudice).
  • Nienke assisted Andrew Clutterbuck QC in the preparation for and conduct of Gary Good v (1) Onsette Limited (2) Rubinstein [2013] EWHC 3447, a case concerning breach of trust and knowing assistance in relation to a share transfer agreement.

Nienke also has experience in the drafting of various company and shareholder documents, such a loan notes, LLP agreements, shareholder agreements, etc.

Nienke’s experience relates to entities incorporated both in England & Wales and offshore.

 

Offshore litigation

Nienke has experience of advising and acting for clients in relation to offshore litigation (including but not limited to the BVI, the DIFC, etc.), and many of Nienke’s cases include an international element. Nienke accepts instructions in relation to offshore litigation in all areas of her practice. Examples of previous cases include:

  • (1) Blue Tropic Ltd (2) Coppella Ventures Ltd v Ivane Chkhartishvili [2014] EWHC 2243 (Ch).
  • Chesterfield United Inc (in liquidation) & anor. v Deutsche Bank AG & ors. [2016] (Ch).
  • Rafed Al Khorafi & ors. v Bank Sarasin-Alpen (ME) Limited & anor. (CFI-026-2009).

Nienke also has rights of audience in the AIFC Court in Kazakhstan.

Banking & finance

Nienke regularly acts in disputes relating to banking and financial services. She has acted for both banks and investors, and has been instructed in relation to a number of disputes, including the mis-selling of investment products to individuals and SMEs, and large-scale litigation involving multi-national investment banks.

Nienke has experience of drafting pleadings, including Particulars of Claim, in cases concerning breaches of facility agreements, the mis-selling of Interest Rate Hedging Products (IRHPs) and LIBOR manipulation.

Examples of Nienke’s recent experience in this area include:

  • Assisting a major international bank in its review of its sales of IRHPs, including swaps, simple collars, structured collars and cap products to unsophisticated customers.
  • Advising and acting for the Claimants (with Mark Phillips QC, Sharif Shivji and Eleanor Holland) in Chesterfield United Inc (in liquidation) & anor. v Deutsche Bank AG & ors. [2016] (Ch), a case which arose from transactions concerning credit linked notes (CLNs), and which included claims under the Financial Services and Markets Act 2000 (FSMA 2000) for market manipulation.
  • Acting for the Claimants (with Sharif Shivji and Richard Hill QC) in relation to Rafed Al Khorafi & ors. v Bank Sarasin-Alpen (ME) Limited & anor. (CFI-026-2009); litigation in the Dubai International Financial Centre (DIFC) Courts concerning the bank’s failure to give proper investment advice, and the consequent sale of inappropriate investment products.
  • Acting on behalf of the Claimants in Doel v Clark Rees LLP, and advising in relation to the enforcement of judgments obtained in relation to the mis-selling of (pension) investments (including advice in relation to the use of the Third Parties (Rights Against Insurers) Act 1930).
  • Assisting the Independent Third Party in addressing and assessing complaints from small business customers of RBS’s Global Restructuring Group.
  • Completing a secondment to the Financial Conduct Authority (FCA), where she gained in-depth knowledge of the FCA Handbook and financial services law and regulations.
Fraud – civil

Fraud does not confine itself to a particular practice area. Matters which Nienke is instructed on regularly contain allegations of civil fraud and dishonesty, for example in the context of her commercial chancery practice and in relation to insolvencies.

Examples of Nienke’s recent experience in this area include:

  • Faizan Haq v ASOS.com Ltd (QB): Nienke acted for the Defendant on a successful application to strike out the claims for fraud and dishonesty.
  • Nienke assisted Andrew Clutterbuck QC in the preparation for and conduct of Gary Good v (1) Onsette Limited (2) Rubinstein [2013] EWHC 3447, in which allegations of dishonesty were successfully made out against the Second Defendant.
  • Acting for the Claimants (with Mark Phillips QC, Sharif Shivji and Eleanor Holland) in Chesterfield United Inc (in liquidation) & anor. V Deutsche Bank AG & ors. [2016] (Ch), a case which included allegations of dishonesty against some of the Defendants.
Alternative dispute resolution

During her time at Harvard Law School Nienke took a special interest in alternative dispute resolution (ADR), receiving training at the world-renowned Harvard Program on Negotiation and the Harvard Negotiation and Mediation Clinical Program.

Nienke accepts instructions in relation to all forms of ADR, including (international) commercial arbitration, mediation, early neutral evaluation, and complaints to ombudsmen. She can advise on strategy, prepare (position) papers or attend at the arbitration or mediation.

Additional info

Career & appointments

Member of the Chancery Bar Association (ChBA)
Sitting member on the Equality & Diversity Committee of the ChBA
Member of the Commercial Bar Association (COMBAR)

Education & Awards

LL.M., Harvard Law School, USA (2010)
M.Jur., New College, University of Oxford (2009)
LL.M. cum laude, Leiden University, the Netherlands (2008)
LL.B. cum laude, Leiden University, the Netherlands (2007)

Nienke qualified in England & Wales by completing the GDL (2011) and BPTC (2012), and was called to the Bar in 2012.

The Huygens Scholarship
VSB Foundation Scholarship
Prins Bernhard Cultuurfonds Scholarship
Prize for Outstanding Performance on the GDL
Hardwicke Entrance Scholarship (Lincoln’s Inn)
Lord Denning Scholarship (Lincoln’s Inn)

 

Publications

Litigation in the Time of Covid-19, 4SB Publication, e-book (1st ed. (22 June 2020) to 9th ed. (15 February 2021)) and hard-copy (15 February 2021).

Eleanor Holland and Nienke van den Berg, Seniority of debts flushed out in waterfall application, CRI (June 2014), p. 99-102.

N.E van den Berg, Arbitral Class Actions: Massaclaims in Arbitrage Procedures, in: Massaclaims, Stichting Mordenate College, Ars Aequi Libri: Nijmegen, 2007, p. 147-170.

Contributing author to the Lexis Nexis Insolvency Rules 2016 Forms.

 

Languages

Dutch, French, Spanish & German.