I INTRODUCTION TO CLASS ACTIONS FRAMEWORK
Dutch law has a different approach to class actions compared with common law jurisdictions like the United States. In particular, the plaintiff in a ‘Dutch-style’ class action, a collective action, is a representative organisation. Rather than having its own interest in the litigation, it files the claim solely for the benefit of third parties whose interest it purports to represent.2 The representative organisation, which must be a foundation or association, does not, however, represent the interested parties in a formal sense.
A key limitation to a collective action under Dutch law is that it does not allow representative organisations to claim damages. As a result, in practice, the primary use of a collective action is to pursue a declaratory judgment establishing the basis for liability (e.g., a declaration that the defendant committed a tort or breached a contract). On the basis of that declaratory judgment, the interested parties may claim damages in individual proceedings.
On 16 November 2016, a bill was introduced to the Dutch parliament, proposing to amend the existing collective action so as to permit the representative organisation to claim damages (the Proposal).
Although Dutch law does not provide for an ‘American-style’ class action, it does provide for a mechanism that is somewhat similar to the US class action settlements. The Dutch Act on the Collective Settlement of Mass Claims (WCAM) provides for an opt-out mechanism that facilitates the implementation of collective settlements through a binding declaration by the Amsterdam Court of Appeals. The WCAM was developed exclusively as a mechanism to offer the opportunity to give a wide effect to settlements reached. Since the US Supreme Court’s decision in Morrison v. National Australian Bank,3 the international relevance of the Dutch mechanism for collective settlements has increased. Indeed, now that ‘foreign cubed class actions’ have become a problem in the United States, the Netherlands may become a serious alternative for the certification of collective settlements involving non-US investors in non-US securities listed on a non-US stock exchange.4
Besides a collective action and a mechanism for collective settlements, Dutch law provides the possibility to bundle claims by allowing a multitude of damaged parties to assign their claims to a single third party, for instance a claims vehicle, which can then commence proceedings in its own name.5
II THE YEAR IN REVIEW
In November 2016 the Proposal was published, proposing to amend the existing collective action so as to permit the representative organisation to claim damages. The Proposal intends to facilitate collective redress in the form of an opt-out mechanism. It provides incentives to conclude the case with a class settlement similar to the procedure for a WCAM settlement. It is still uncertain whether the Proposal will be adopted by the Dutch parliament in its current form, or at all. In Section III.ii, infra we will discuss the current law for a collective action together with the adjustments proposed by the Proposal.
On 23 May 2016, Ageas and a number of representative organisations submitted a request to the court to declare binding the global settlement agreement with respect to all securities litigation related to the former Fortis group for events that occurred in 2007 and 2008. These events relate, among others, to the acquisition of parts of ABN AMRO. The total settlement amounts to approximately €1.2 billion.
i Types of action available
Under general rules of Dutch law, claims can be assigned to a third party, who can commence proceedings and sue for damages in his or her own name. This practice of bundling claims is common in the Netherlands, for instance in the context of cartel damage claims. The claims are usually brought by a claims vehicle in its own name, having obtained a large number of claims through an assignment from parties that have allegedly suffered loss as a result of (for example) a cartel.
Article 3:305a of the Dutch Civil Code provides the possibility for a representative organisation to bring a collective action. Under the current law the representative organisation may not file claims for damages. The Proposal proposes to remove this restriction. Section III.ii, infra, will further discuss the collective action currently provided by Dutch law and the proposed adjustments.
With the WCAM Dutch law provides for a mechanism that facilitates the implementation of collective settlements. This mechanism will be outlined in Section III.iii, infra.
ii Collective actions
An association or foundation may bring a collective action to protect the interests of a defined group of interested parties or public interests.6 The representative organisation can file a collective action at its own motion. In order to have standing in court, a number of requirements must be met. The representative organisation must have the objective of protecting such interests according to the objective clause in its articles of association. In addition, the association or foundation must show to be able to sufficiently protect the interest of the parties on whose behalf the action is instituted. This is commonly known as the criterion of representativeness. Before commencing such collective action, the representative organisation must have tried to achieve the required result through negotiations.
In a collective action, the representative organisation represents all persons in whose interest the claim is filed, including but not limited to the persons that are associated with, or members of, the representative organisation.
Except for a claim for damages, any form of relief may be sought, such as a declaratory relief on liability, rescission or specific performance of a contract, injunctive relief or annulment of a legal act. A declaratory judgment establishing liability can be followed by individual damages claims.
The collective action is covered by the normal rules of Dutch civil procedural law.
As stated earlier, the Proposal aims to broaden the scope of the current collective action so as to enable collective actions for damages on an opt-out basis. Furthermore, the Proposal introduces stricter criteria for representative organisations with regard to governance, funding and representativeness. These criteria would apply for collective actions for damages claims as well as for other collective actions. According to the Proposal, the court will decide early in the proceedings whether the representative organisation meets the relevant criteria and whether the action is fit to be dealt with through collective action proceedings.
Within two days after the filing of the claim, the representative organisation must enter the matter in a central register for collective actions. The entry in the register triggers a three-month period, during which other representative organisations can file alternative competing collective actions that are based on the same event. If more than one representative organisation files a claim for the same event, the court will appoint a lead plaintiff, called an ‘exclusive representative’, to represent the interests of the whole class.
The court’s decision regarding the appointment of an exclusive representative, the definition of the class and the scope of the claim must be notified to all members of the class. This notification will also state that class members have the opportunity to opt out of the collection action. The minimum opt-out period is one month.
The Proposal includes a ‘scope rule’, which provides that the collective action must have a sufficiently close connection to the Dutch jurisdiction. As this provision is especially important in the context of collective actions with an international character, this issue will be discussed further in Section IV, infra.
Damages and costs
The representative organisation may not have its own financial interest in the claim. It may, however, derive its funding from third parties to achieve the objectives set out in its articles of association. This means that a third-party litigation funding entity or law firm can provide funds to that organisation to fund a collective action.
In principle, attorney fees can be negotiated between the representative organisation and the attorney without any particular restrictions. However, that freedom is to a certain extent restricted by the Dutch Bar Association’s Code of Conduct (DBACC). The DBACC provides that ‘an attorney may not agree to charge a proportionate part of the value of the result obtained’. Hence, contingency fees are not permitted. Furthermore, the DBACC provides that ‘an attorney may not agree that he will only charge for his services upon obtaining a specific result’. Therefore, attorneys are not allowed to receive no fee at all unless a specific result is obtained. However, charging fees at a higher rate if the case is successful is permissible.
A collective action could end up in a class settlement certified by the WCAM procedure. However, to be entitled to a WCAM procedure, it is not required that a collective action be filed first. The WCAM provides parties to a settlement agreement the possibility of jointly requesting the Amsterdam Court of Appeals (the Court) to declare the settlement agreement binding. The agreement must be concluded between one or more potentially liable parties, and one or more foundations or associations representing one or more groups of persons for whose benefit the settlement agreement was concluded (together, the ‘interested persons’). If the Court does declare the settlement agreement binding, the agreement then binds all persons covered by its terms, unless such person decides to opt out in writing within a certain time period after the binding declaration. The opt-out period is determined by the Court, but is at least three months.
Thus far, the Court has rendered eight final decisions within the framework of the WCAM, namely in DES and DES II (regarding personal injury allegedly caused by a harmful drug), Dexia (regarding financial loss allegedly caused by certain retail investment products), Vie d’Or (regarding financial loss allegedly suffered by life insurance policy holders as a consequence of the bankruptcy of a life insurance company), Vedior (regarding financial loss allegedly suffered by shareholders as a consequence of late disclosure of takeover discussions), Shell, Converium (both regarding financial loss allegedly suffered by shareholders as a consequence of misleading statements by the company in a certain period) and DSB Bank (regarding possible damages claims on the bankrupt estate of a bank due to the bank allegedly violating its duty of care towards the customers).7 In each of these cases, the Court declared the settlement agreements binding. It further found the settlements reasonable and affirmed the representativeness of the representative organisations.
The procedure of reaching a binding settlement under the WCAM is as follows:
- a Settlement: a settlement is concluded with (an) organisation(s) representing the interests of claimants.
- b Binding declaration: the Court may declare the settlement binding upon all relevant claimants, ‘known’ and ‘unknown’, on an opt-out basis.
- c Binding settlement: upon the binding declaration, all beneficiaries are automatically bound to the settlement unless they opt out.
The beneficiaries are not initially a party to the settlement. However, upon the binding declaration being issued by the Court, all beneficiaries by virtue of the binding declaration are automatically deemed to be a party to the settlement, unless he or she issues an opt-out statement in time. If a group of persons is excluded from the settlement, the binding declaration will not diminish their rights in any way, that is: the binding declaration cannot be invoked against them, hence they are free to pursue their claim in court, without the need to issue an opt-out statement in time. Excluding a certain group of persons from the scope of beneficiaries under a settlement is different from the situation where a certain group of persons is included in the scope of beneficiaries under the settlement, but is not awarded any compensation.8 In that case, the binding declaration can be invoked against these persons: they will need to opt out in time in order to be able to pursue their claim in court.
One or more associations or foundations that, pursuant to their articles of association, promote the interests of, and are representative of the beneficiaries (representative organisations) can conclude a settlement.9 The WCAM stipulates that the Court must deny the binding declaration of a settlement if the representative organisations are not sufficiently representative with regard to the interests of the beneficiaries.10 The Court actively ascertains whether this requirement is met. The test as to whether a representative organisation is sufficiently representative is hence a discretionary test applied by the Court on the basis of all circumstances of the matter. This representativeness can be derived from several factual circumstances and that not one circumstance is decisive. In the Dexia case, the Court looked at the statutory objects of the foundations and associations involved, the number of participants or members, the activities of these foundations and associations apart from filing the WCAM request, such as their websites, mailings to interested persons, activities in the media, and earlier activities in the field of litigation in connection with the issues that were covered by the settlement.11 In the DES case, the Court applied the same standards (in a less elaborate manner).12
Terms and conditions of the settlement
The settlement is a private agreement between private parties and as such, in principle, the parties are free to agree on the terms and conditions. That said, the settlement is not intended to only govern the legal relationship between the compensating parties and representative organisations, but ultimately to govern the legal relationship between them and a large group of future parties: the beneficiaries. In deviation from the main rule of interpretation of contracts covered by Dutch law that hinges on the parties’ intentions, a settlement – which binds parties that were not involved in the conclusion of that settlement – will need to be interpreted more objectively.13
The WCAM limits the options of the Court to either issue or altogether refuse a binding declaration.16 In practice, the Court however issues interim judgments to indicate whether or not the settlement, in its view, passes the test and allow the parties to submit one or more amended settlements accordingly, before issuing a final judgment.
The Court’s decisions are non-appealable unless a binding declaration is refused17 (which has never happened, although the Court has indicated in some cases it would only declare the settlement binding after being amended) and then only by all petitioners jointly to the Supreme Court of the Netherlands on limited grounds of material procedural errors or breach of law.18
The compensating parties and the representative organisations submit a joint petition to the Court, together with the settlement, in which they request the Court to issue a binding declaration.
Notification of the persons for whose benefit the settlement agreement is concluded is crucial, both at the stage of the litigation aimed at obtaining a binding declaration, as well as after the binding declaration has been issued.19 The WCAM provides for direct notification of interested persons known to the petitioners, as well as for public notification, through announcements in newspapers, of interested persons whose identity is unknown to the petitioners. Insofar as foreign unknown interested persons are concerned, the Court may order announcements in relevant foreign newspapers, as is demonstrated in Shell and Converium.20
A settlement will need to meet certain mandatory statutory requirements in order to qualify for a binding declaration.21 These requirements may be divided into two categories; on the one hand, more ‘technical’ requirements (such as a description of a damage-causing event and the group of beneficiaries), essentially pertaining to information that is necessary for a standardised settlement, and on the other hand more substantive requirements, which enable the Court to determine whether the terms and conditions of the settlement provide sufficient safeguards for the interests of the beneficiaries to justify a binding declaration (such as ‘reasonable compensation’, see the following paragraphs, and the representative organisation being sufficiently representative).
The WCAM provides that the Court will refuse the binding declaration if the compensation awarded in the settlement is not reasonable, having regard to, among other things, the extent of the damage, the ease and speed with which the compensation can be obtained, and the possible causes of the damage. In determining whether the amount and terms of the compensation awarded in the settlement are ‘reasonable’, the Court may take into account all circumstances of the case – whether they arose before or after determination of the amount of compensation and before or after the settlement was reached.22 In DSB Bank the court also took into consideration that it is both in accordance with the law and in the interest of the parties involved that the number of opt-outs is as limited as possible.
‘Reasonableness’ of the settlement has many aspects. The first aspect discussed here is the reasonableness of the criterion by which it is determined whether a person is included in the group of interested parties. The Court will not easily decide that a certain group was wrongly excluded from the settlement.23 Obviously, if a group is excluded from the settlement, the binding declaration will not diminish their rights in any shape or form, that is: the binding declaration cannot be invoked against them; and they still have standing in court, without the need to issue an opt-out statement in time.
Please note that the type of exclusion described in the preceding paragraph is different from the situation where a certain group is included in the settlement, in the sense that it is covered by the description of interested persons potentially eligible for compensation, but is not awarded anything. In that case, the binding declaration can be invoked against this group and these persons need to opt out in order to still have standing in court. In such case, the Court will fully test whether such limitation is reasonable.
The concept of ‘reasonableness’ also refers to the amount of compensation awarded in the settlement. It is an implied starting point of the WCAM that the settlements may differentiate between different groups of eligible parties on the basis of the expected strength of their claim in court. In addition, the Court in Dexia held that a settlement is the outcome of negotiations in which all parties have made concessions based on the perceived strength of its legal position and perceived interest in having the matter resolved outside of court. As a consequence, a settlement will normally not result in full compensation of the losses as originally presented by the claiming parties. The Court held that this in itself does not make a settlement unreasonable.24
In the Shell case, the Court held on multiple grounds that the compensation granted was not unreasonable. It referred to the broad support the settlement had met – both from institutional investors and from shareholders’ associations. The Court also referred to two favourable opinions of US scholars that were filed by the petitioners, which indicated that the settlement was somewhat better for the beneficiaries than the average of settlements in comparable cases. The Court furthermore took into account that the alleged misleading statements had not given rise to any litigation outside of the US, which suggests that it was uncertain if an award in a non-US court could be obtained that would be better than the compensation awarded in the settlement.25
In Shell, no question arose about unequal treatment of shareholders in different jurisdictions, as the shareholders were actually treated equally in all jurisdictions. However, one can imagine international cases in which the settlement differentiates between parties residing in different countries, on the basis that their claims have a different value under the laws that apply in each of their cases.
In Converium, just as in Shell, the settlement only regarded non-US shareholders. The Court found that the proposed non-US settlement amount was considerably lower than the US settlement amount. However, it held that despite this difference the amount of compensation was not unreasonable. The Court ruled that the difference between the US and non-US settlement amount was justified given the fact that the legal position of the US shareholders differed from the legal position of the non-US shareholders. According to the Court, the non-US shareholders were excluded from the US settlement, and it would be very difficult for them to get compensation outside the US, whereas it was improbable that they would get compensation in the US. Also, the non-US shareholders could opt out and start individual proceedings.26
In the Converium case, the Court ruled that despite a considerable lawyers’ fee of 20 per cent, the amount of compensation as included in the settlement was not unreasonable. As most preparatory work had been done by US lawyers, the Court took into account US standards of what is common and reasonable in judging what a reasonable fee is. The Court found that it was sufficiently established that according to such standards, the fee was not unreasonable.27
A binding declaration by the Court transforms the settlement into a binding settlement, meaning that all beneficiaries – known and unknown – are bound by it unless they expressly opt out within a certain time period.28 The opt-out format of a binding settlement hence makes the playing field more transparent: if a binding declaration is obtained, the compensating parties will, after the opt-out period, know who may still sue for damages.
An opt-out notice can only be submitted after the binding declaration has been issued by the Court. The duration of the opt-out period is set by the Court, normally three to six months after publication of the binding declaration.29
The parties can stipulate in the settlement that the compensating parties are jointly entitled to terminate the settlement in case of a certain percentage of opt-outs.30 The percentage can be agreed upon in the settlement – the WCAM does not specify which percentage must be met.
IV CROSS-BORDER ISSUES
i Collective actions
Apart from the question of international jurisdiction, the Proposal provides for a ‘scope rule’ for admissibility of the collective action. The scope rule provides that a class action is inadmissible if the claims have insufficient nexus with the Netherlands. The Proposal specifies that sufficient nexus with the Netherlands exists if one of the following condition are fulfilled:
- a the majority of the individuals on behalf of whom the representative organisation files the collective action resides in the Netherlands;
- b the defendant is domiciled in the Netherlands; or
- c the event on which the collective action is based, took place in the Netherlands.
ii Collective settlements
Jurisdiction in international settlements
With regard to proceedings for the binding declaration under the WCAM of international settlements, the Court assumes jurisdiction rather easily, even if the case is substantively not connected to the Netherlands.
With regard to the jurisdiction, recognition and enforcement of a binding declaration, the Brussels Ibis Regulation is applicable if the person ‘to be sued’ (i.e., the shareholder or, in a product liability case, the alleged victim of a defective product) is domiciled in a Member State of the EU.31, 32 If the person ‘to be sued’ is domiciled in Norway, Switzerland or Iceland, the Lugano Convention is applicable. In both Shell and Converium, the Court assumed jurisdiction with regard to the shareholders domiciled outside the Netherlands, but within the EU, Switzerland, Iceland or Norway, as their potential claims were ‘so closely connected’ to the claims of the shareholders domiciled in the Netherlands that it was ‘expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings’.33 Furthermore, the Court also assumed jurisdiction with regard to the shareholders who were not domiciled in the Netherlands, or in any other EU Member State, Switzerland, Iceland or Norway. The basis for this decision was the fact that five out of six petitioners in Shell and two out of four petitioners in Converium were domiciled in the Netherlands. The ground for jurisdiction was based on Article 3 of the Dutch Code of Civil Procedure, which provides that, in this type of proceeding, Dutch courts have jurisdiction if at least one of the parties requesting the binding declaration, or one of the defendants, is domiciled in the Netherlands.
The decision by the Court on international jurisdiction in Converium implies that even if the case is substantively not connected to the Netherlands, but a minority of the parties ‘to be sued’ are domiciled in the Netherlands and one of the parties to the settlement is a Dutch entity (for example, a Dutch foundation representing the interests of the alleged victims), the Court will assume jurisdiction. It should be noted that the Court in Converium also held as a separate and autonomous ground for jurisdiction that the settlement to be declared binding has to be executed in the Netherlands.34
International recognition and enforceability of a WCAM decision
Whether the WCAM procedure will prove to be helpful in declaring international settlements binding will, in the long run, also depend on whether foreign courts recognise and enforce a binding declaration by the Court. The criteria dictating whether foreign courts will decide on recognition and enforcement of a foreign court decision will differ from country to country. However, insofar as the foreign court is a court of an EU Member State, a solid argument can be made that the decision to declare a settlement binding is a ‘judgment’ as referred to in Article 2(a) Brussels I bis Regulation. Such judgment must be recognised by the courts of other Member States unless one of the grounds to refuse recognition in Article 45 apply. However, these grounds are rather narrow. A ground for refusal that may be relevant in these cases is that no proper service of the defendant took place (Article 45 Section 1(b). The court that must decide on recognition may not review the binding declaration of the Court as to its substance (Article 52) unless it is manifestly contrary to public policy in the Member State in which recognition is sought (Article 45 Section 1(a) Brussels I bis Regulation). However, it should be noted that a specific mechanism for international recognition and enforcement for collective settlement proceedings has not materialised to date. In addition, there are no legal authorities, such as judgments, on this specific matter of recognition of WCAM judgments, except some scholarly writing. The atypical nature of the proceeding (a contractual settlement with a subsequent binding declaration from the Court, which has the effect of making other persons bound as contractual parties to the same settlement unless they opt out) combined with the lack of a specific mechanism for recognition and enforcement leads to uncertainty with regard to recognition and enforcement abroad.
Representativeness in international settlements
In WCAM settlements with an international character, the representative organisations must also be sufficiently representative regarding foreign beneficiaries. In the Shell case, a Dutch foundation was created for the sole purpose of representing the interests of all non-US shareholders affected by the alleged misrepresentations by Shell. This foundation sought and obtained the support of participants and supporters, such as shareholder organisations in relevant foreign countries and institutional investors. In the WCAM petition, all interested persons were represented by this foundation (backed up, so to speak, by its participants and supporters) and the Dutch Shareholders’ Association (VEB). The Court accepted these two parties as being sufficiently representative. It seems that the Court very much looked at the articles of association of the foundation and the VEB and abstained from scrutinising the actual activities of these entities. In the Converium case, the shareholders were represented in a similar manner as in the Shell case, and the Court also accepted the Dutch foundation and the VEB as being sufficiently representative. In both the Shell case and the Converium case, the Court repeated part of the Dexia ruling, reiterating that it is not required for each petitioner organisation to be representative for all persons involved.35 In Converium, the Court added to this ruling that there is insufficient reason to set the extra requirement that each petitioner is sufficiently representative for a group of a sufficient size of interested persons.36
V OUTLOOK AND CONCLUSIONS
The WCAM, in force since 2005, may become an efficient mechanism for settling international mass claims. If the pending Proposal, facilitating collective actions for damages, will be enacted in its current form, Dutch law will also provide a collective action mechanism to obtain damages in mass litigation situations. One of the objectives and expected consequences of the Proposal is that defendants will be more incentivised to reach a settlement. Therefore, it will be interesting to see whether the Proposal in its current form passes the Dutch parliament and how the introduction of the collective action for damages will influence the class action climate in the Netherlands.
1 Jan de Bie Leuveling Tjeenk is a partner and Bart van Heeswijk is an associate at De Brauw Blackstone Westbroek.
2 Article 3:305a Dutch Civil Code.
3 No. 08/1191 (US 24 June 2010).
4 R. Hermans and J. de Bie Leuveling Tjeenk – ‘International Class Action Settlement in the Netherlands since Converium’, in: I. Dodds-Smith, A. Brown (eds.) – ICLG to: Class & Group Actions 2017, Global Legal Group Ltd., London, UK, 2016.
5 Article 3:94 Dutch Civil Code.
6 An association is defined by Article 2:26 Dutch Civil Code. A foundation is defined in Article 2:285 Dutch Civil Code. A foundation may be set up especially for the purpose of participating in a collective action or settlement.
7 Amsterdam Court of Appeals 1 June 2006, LJN AX6440, NJ 2006/461 (DES); Amsterdam Court of Appeals 25 January 2007, LJN AZ7033, NJ 2007/427 (Dexia); Amsterdam Court of Appeals 29 April 2009, LJN BI2717, JOR 2009/196 (Vie d’Or); Amsterdam Court of Appeals 29 May 2009, LJN BI5744, JOR 2009/197 (Shell); Amsterdam Court of Appeals 15 July 2009, LJN BJ2691, JOR 2009/325 (Vedior); Amsterdam Court of Appeals 17 January 2012, LJN BV1026 (Converium); Amsterdam Court of Appeals 4 November 2014, JOR 2015/10 (DSB) and Amsterdam Court of Appeals 24 June 2014, ECLI:NL:GHAMS:2014:2371 (DES II).
8 See for example: Amsterdam Court of Appeals 27 January 2007, LJN AZ7033 (Dexia), paragraph 3.12; Amsterdam Court of Appeals 29 April 2009, LJN BI2717, JOR 2009/196 (Vie d’Or), paragraph 3.3.
9 Article 7:907(1) Dutch Civil Code.
10 Article 7:907(3)(f) Dutch Civil Code.
11 Amsterdam Court of Appeals 27 January 2007, LJN AZ7033 (Dexia), paragraph 5.23 ff.
12 Amsterdam Court of Appeals 1 June 2006, LJN AX6440, NJ 2006/461 (DES), paragraph 5.8 ff.
13 Supreme Court of the Netherlands 9 December 2017, NJ 2017/11.
14 Article 7:907(1) Dutch Civil Code: ‘[…] may, at the joint request of the parties that concluded the agreement, be declared binding by the court on persons to whom the damage was caused […].’
The Amsterdam Court of Appeals has exclusive jurisdiction to decide on Pre-Agreed Settlements under the WCAM. Article 1013(3) Dutch Civil Code. Kamerstukken II 2003/04, 29 414, nr. 3, p. 25.
15 Amsterdam Court of Appeals 1 June 2006, LJN AX6440, NJ 2006/461 (DES); Amsterdam Court of Appeals 25 January 2007, LJN AZ7033, NJ 2007/427 (Dexia); Amsterdam Court of Appeals 29 April 2009, LJN BI2717, JOR 2009/196 (Vie d’Or); Amsterdam Court of Appeals 29 May 2009, LJN BI5744, JOR 2009/197 (Shell); Amsterdam Court of Appeals 15 July 2009, LJN BJ2691, JOR 2009/325 (Vedior); Amsterdam Court of Appeals 17 January 2012, LJN BV1026 (Converium); Amsterdam Court of Appeals 4 November 2014, JOR 2015/10 (DSB) and Amsterdam Court of Appeals 24 June 2014, ECLI:NL:GHAMS:2014:2371 (DES II).
16 Pursuant to Article 7:907(4) Dutch Civil Code, the Court may not amend or supplement the settlement except with the petitioning parties’ consent.
17 Article 1018 Dutch Code of Civil Procedure.
18 Article 79 Dutch Law on the Organisation of the Judiciary.
19 Direct international notification, insofar as EU-domiciled persons are concerned, is governed by Council Regulation (EC) No. 1393/2007 of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters. If interested persons reside outside of the EU, notification must be effected pursuant to applicable treaties, most notably the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters.
20 See the minutes of the court session in Shell of 12 July 2007 and the minutes of the court session in Converium of 24 August 2010, both published on the website of the Court.
21 Article 7:907(2)(3) Dutch Civil Code.
22 Amsterdam Court of Appeals 17 January 2012, LJN BV1026 (Converium), par. 6.2.
23 In DES (ground 5.19), the Court held that it will only test whether it is ‘incomprehensible’ that a certain group of potentially eligible persons was excluded from the settlement agreement (in that case, the group of haemophilia patients).
24 Amsterdam Court of Appeals 25 January 2007, LJN AZ7033, NJ 2007/427 (Dexia), paragraph 6.6.
25 Amsterdam Court of Appeals 29 May 2009, LJN BI5744, JOR 2009/197 (Shell), paragraph 6.15 – 6.17.
26 Amsterdam Court of Appeals 17 January 2012, LJN BV1026 (Converium), paragraph 6.4.1 – 6.4.5.
27 Amsterdam Court of Appeals 17 January 2012, LJN BV1026 (Converium), paragraph 6.5.1 – 6.5.7.
28 Article 7:908(2) Dutch Civil Code.
29 Article 7:908(2) Dutch Civil Code.
30 Article 7:908(4) Dutch Civil Code.
31 Council Regulation (EC) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 12 December 2012 (the Brussels Ibis Regulation).
32 In both Shell and Converium, the Court rules that for the purpose of these international instruments, the WCAM procedure is a ‘civil and commercial matter’ and that the shareholders are to be regarded as the persons ‘to be sued’ as referred to in the Brussels Ibis Regulation and the Lugano Convention.
33 See Article 8 Section 1 of the Brussels Ibis Regulation, see Article 6 Section 1 of the Lugano Convention.
34 As a consequence, the Court also assumed jurisdiction on the basis of the predecessor of Article 7 sub 1 of the Brussels Ibis Regulation and Article 5 sub 1 of the Lugano Convention.
35 Amsterdam Court of Appeals 29 May 2009, LJN BI5744 (Shell), paragraph 6.3; A similar formula was employed in Amsterdam Court of Appeals 15 July 2009, LJN BJ2691 (Vedior), paragraph 4.20 and 4.21; and Amsterdam Court of Appeals 4 November 2014, JOR 2015/10 (DSB), paragraph 6.2.3 and 6.2.4.
36 Amsterdam Court of Appeals 17 January 2012, LJN BV1026 (Converium), paragraph 10.2.