I INTRODUCTION TO CLASS ACTIONS FRAMEWORK

Dutch law has a different approach to class actions compared with common law jurisdictions, such as the United States. In particular, the claimant 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 19 March 2019, new legislation was approved by the Dutch parliament to amend the existing collective action, which permit representative organisations to claim damages (the New Legislation). The New Legislation is expected to enter into force in July or September 2019.

Although Dutch law does not currently provide for an US-style class action, it does offer a mechanism that is somewhat similar to the US class action settlement. 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 Appeal. The WCAM was developed exclusively as a mechanism to offer the opportunity to give a wide effect to settlements reached. Nine settlements have already been declared binding based on the WCAM court proceedings to obtain a binding declaration in another settlement – Ageas – are currently pending. 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

The New Legislation facilitates collective redress in the form of an opt-out mechanism for Dutch claimants, and an opt-in mechanism for foreign claimants. It provides mechanisms for reaching a class settlement similar to the procedure for a WCAM settlement. In Section III.ii, we discuss the existing collective action legislation, and highlight the amendments made by the New Legislation.

In 2016, Ageas and a number of representative organisations submitted a request to a Dutch court to declare binding a global settlement agreement covering all securities litigation regarding the former Fortis group for events that occurred in 2007 and 2008. These events relate, among other things, to the acquisition of parts of ABN AMRO. In July 2018, the court declared the revised global settlement in the Ageas case6 binding after having handed down two interim decisions. On 1 January 2019, the Netherlands Commercial Court (NCC) and the Netherlands Commercial Court of Appeal (NCCA) opened its doors. The NCC and NCCA offer the possibility to litigate in international business disputes (including mass claims) in English before the Amsterdam District Court and the Amsterdam Court of Appeal, making litigation about international mass claims more efficient, effective and attractive.

III PROCEDURE

i Types of action available

Claim bundling

Under general rules of Dutch law, claims can be assigned to a third party, which can then commence proceedings and sue for damages in its own name. This practice of bundling claims is common in the Netherlands, for example, 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.

Collective actions

Article 3:305a of the Dutch Civil Code enables representative organisations to bring a collective action. Under the current law representative organisations may not file claims for damages. The New Legislation removes this restriction. Subsectionii further discusses the collective action currently provided by Dutch law and the proposed changes.

Collective settlements

In the WCAM Dutch law provides for a mechanism that facilitates the implementation of collective settlements. This mechanism is outlined in subsectioniii.

ii Collective actions

Initiating proceedings

An association or foundation may bring a collective action to protect the interests of a defined group of interested parties or public interests.7 The representative organisation can file a collective action on its own initiative. To have standing in court, a number of requirements must be met. The representative organisation must have the objective of protecting the relevant interests according to the objective clause in its articles of association. In addition, the association or foundation must show its ability to sufficiently protect the interest of the parties on whose behalf the action is instituted. This is commonly known as the criterion of representativeness test. Before initiating the 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 any persons who are associated with, or members of, the representative organisation.

Procedural rules

Except for a claim for damages, any form of relief may be sought, including declaratory relief on liability, rescission or the specific performance of a contract, injunctive relief or the 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.

New Legislation

As stated earlier, the New Legislation broadens the scope of the current collective actions so as to enable collective actions for damages on an opt-out basis for domestic claimants, and on an opt-in basis for foreign claimants. The New Legislation also introduces stricter criteria for representative organisations with regard to governance, funding and representativeness. These criteria apply for collective actions for damages claims as well as for other collective actions. According to the New Legislation, 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 proceedings.

Within two days of filing the claim, the representative organisation must enter the matter into 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 claimant, called an 'exclusive representative', to represent the interests of the whole class. After the court appoints a lead claimant, the claimants can opt out of the collective action.

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 indicate that Dutch claimants have the opportunity to opt out of the collective action and that foreign claimants can opt in. However, at the request of a party to the class action, the court can rule that the opt-in mechanism also applies to Dutch claimants. The minimum period for opting in or opting out is one month.

The New Legislation includes a 'scope rule', which provides that the collective action must have a sufficiently close connection to Dutch jurisdiction. As this provision is especially important in the context of collective actions with an international character, this issue is discussed further in Section IV.

In addition, the New Legislation contains a transitory provision and only applies to claims for damage-causing events that have occurred on or after 15 November 2016.

Damages and costs

The representative organisation may not have a 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 finance 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 somewhat restricted by the Dutch Bar Association's Code of Conduct (DBACC), which 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 agree to not receiving a fee unless a specific result is obtained. However, charging fees at a higher rate if the case is successful is allowed.

iii Settlement

The WCAM

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 enables parties to a settlement agreement to jointly request the Amsterdam Court of Appeal (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 declares the settlement agreement binding, the agreement 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.

So far, the Court has issued nine final decisions within the framework of the WCAM, namely in:

  1. DES and DES II (regarding personal injury allegedly caused by a harmful drug);
  2. Dexia(regarding financial loss allegedly caused by certain retail investment products);
  3. Vie d'Or (regarding financial loss allegedly suffered by life insurance policy holders as a consequence of the bankruptcy of a life insurance company);
  4. Vedior (regarding financial loss allegedly suffered by shareholders as a consequence of late disclosure of takeover discussions);
  5. Shell, Converium (both regarding financial loss allegedly suffered by shareholders as a consequence of misleading statements by the company in a certain period);
  6. DSB Bank (regarding possible damages claims on the bankrupt estate of a bank owing to the bank allegedly violating its duty of care towards the customers); and
  7. Ageas (regarding financial loss allegedly suffered by shareholders as a consequence of misleading statements and a failure to provide sufficient information on strategic decisions).8

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:

  1. settlement: a settlement is concluded with one or more organisations representing the interests of claimants;
  2. binding declaration: the Court may declare the settlement binding upon all relevant claimants, 'known' and 'unknown', on an opt-out basis; and
  3. binding settlement: upon the binding declaration, all beneficiaries are automatically bound to the settlement unless they opt out.

Initiating proceedings

Parties

The beneficiaries are not initially a party to the settlement. However, after the Court issues the binding declaration, each beneficiary is, by virtue of the binding declaration, automatically deemed to be a party to the settlement, unless he or she submits an opt-out statement before the deadline. If a group of persons is excluded from the settlement, the binding declaration does not diminish their rights in any way. The binding declaration cannot be invoked against them, and they are free to pursue their claim in court without the need to timely issue an opt-out statement. 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.9 In that case, the binding declaration can be invoked against these persons: they will need to opt out in time 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.10 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.11 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 and Ageas 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.12 Furthermore, the Court assessed whether the representative organisations sufficiently guaranteed the legal interests of their members, in line with the Dutch Claim Code (this is a soft law that applies to foundations and partially to associations acting in a collective action or in WCAM proceedings).

In the Probo Koala case,13 the Court declared the claims of the foundation inadmissible because the interests of the potential claimants were insufficiently safeguarded. The claims that were filed by the foundation had already been prepared by the Ivory Coast organisations. The foundation was too dependent on these organisations and could not convince the Court that compensation awarded to potential claimants would not be granted to the Ivory Coast organisations.

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.14

Procedural rules

Once a settlement is reached, the parties may jointly request the Court to issue a binding declaration.15 Until now, a binding declaration has been requested – and issued – in nine cases.16

The WCAM limits the options of the Court to either issue or altogether refuse a binding declaration.17 In practice, the Court 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 cannot be appealed unless a binding declaration is refused18 (which has never happened, although the Court has indicated in some cases that 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.19

Petition

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

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.20 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.21 In Ageas, the Court took the same approach but also allowed foreign and domestic shareholders to be notified of proceedings via email if they had registered with the claimant organisations that were a party to the settlement. The Court only required more formal notification for those shareholders for whom a confirmation of receipt had not been obtained.

Judicial review

A settlement needs to meet certain mandatory statutory requirements in order to qualify for a binding declaration.22 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 '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).

Reasonableness test

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.23 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.24 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.

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 to still have standing in court. In such a 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.25

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.26

In Shell, no question arose about unequal treatment of shareholders in different jurisdictions, as the shareholders were actually treated equally in all jurisdictions. However, there may be 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.27

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.28

In its first interim decision in Ageas, the Court did not declare the settlement binding but allowed the parties to present an amended settlement. The Court considered the distinction made between 'active' and 'non-active' claimants for purposes of awarding compensation unreasonable, but it did eventually allow a uniform compensation of for active claimants. In its interim decision, the Court also considered that in the case of capped total compensation, the reasonableness towards certain shareholders whose loss is more plausible (buyers), should be considered in light of the greater part of that amount potentially going to others whose claim is unlikely to succeed (holders). Although the court emphasised the difficulty holders would have to successfully bring a claim, it did eventually approve the amended settlement agreement that still compensated holders. The Court also emphasised the importance of clarity in the release obtained by the potentially liable party under the settlement agreement.

Binding effect

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.29 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.30

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.31 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

Scope rule

Apart from the question of international jurisdiction, the New Legislation 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 New Legislation specifies that sufficient nexus with the Netherlands exists if one of the following conditions are fulfilled:

  1. the majority of the individuals on behalf of whom the representative organisation files the collective action reside in the Netherlands;
  2. the defendant is domiciled in the Netherlands and additional circumstances indicate that sufficient nexus with the Netherlands exists; or
  3. 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 has no substantive connection to the Netherlands.

In terms of the jurisdiction, recognition and enforcement of a binding declaration, the Brussels I bis Regulation applies 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.32, 33 If the person 'to be sued' is domiciled in Norway, Switzerland or Iceland, the Lugano Convention applies. In both Shell and Converium, the Court assumed jurisdiction over the shareholders domiciled outside the Netherlands, but within the EU, Switzerland, Iceland or Norway, because 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'.34 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. This decision was based on the fact that five out of six petitioners in Shell and two out of four petitioners in Converium were domiciled in the Netherlands. Jurisdiction was based on Article 3 of the Dutch Code of Civil Procedure, which provides that, in these types of proceedings, 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 Court's decision on international jurisdiction in Converium implies that even if the case is not substantively 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.35 In Ageas, the Court confirmed the approach taken in Shell and Converium.

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 binding declarations 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. This type of 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. In these cases, a ground for refusal include that the defendant was not properly served (Article 45 Section 1(b). The court deciding on recognition may not review the Court's binding declaration for its substance (Article 52) unless it is manifestly contrary to public policy in the Member State where recognition is sought (Article 45 Section 1(a), Brussels I bis Regulation). However, there is currently no specific mechanism for the international recognition and enforcement of collective settlement proceedings. Additionally, with the exception of some scholarly writing, there are no legal authorities or precedents, such as judgments, on the recognition of WCAM judgments. The atypical nature of the proceedings (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 of 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. The Court appeared to have 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.36 In adding to this ruling, the court in Converium stated that there was insufficient reason to also require each petitioner to be sufficiently representative for a group of a sufficient size of interested persons.37

The court followed the same approach in its interim decision in Ageas and confirmed that the formal requirement of representativeness was also met in that case. However, the court criticised the distinction made in the compensation between 'active' and 'non-active' claimants, and fees payable to some of the claimant organisations, as set out above (reasonableness test). The Court allowed the parties to present an amended agreement.38 The amended agreement, which the Court ultimately approved, struck the distinction for purposes of awarding compensation. While there was still a distinction, it related to uniform compensation costs for active claimants. While the Court found the compensation structure reasonable for the claimants, it found that the additional remuneration for active claimants was not reasonable insofar as it concerned the members of one of the claimant organisations. These claimants paid only a membership fee to the non-profit organisation, and the organisation itself would also receive a €25 million remuneration under the settlement agreement. On the same basis, the Court found that this particular organisation was inadmissible because it was insufficiently representative for non-active claimants. However, it did consider the other organisations sufficiently representative and, on balance, found that the settlement as a whole should be approved.

V OUTLOOK AND CONCLUSIONS

The WCAM, in force since 2005, may become an efficient mechanism for settling international mass claims. As from the entry into force of the New Legislation, 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 New Legislation is that defendants will have more of an incentive to reach a settlement. Therefore, it will be interesting to see how the introduction of a collective action for damages will influence the class action climate in the Netherlands.


Footnotes

1 Jan de Bie Leuveling Tjeenk is a partner and Bart van Heeswijk is a senior 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 and D Horeman – 'International Class Action Settlement in the Netherlands since Converium', in: I Dodds-Smith, A Williams (eds.) – ICLG to: Class & Group Actions 2017, Global Legal Group Ltd., London, UK, 2018.

5 Article 3:94 Dutch Civil Code.

6 Amsterdam Court of Appeal, 13 July 2018, ECLI:NL:GHAMS:2018:2422 (Ageas).

7 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.

8 Amsterdam Court of Appeal, 1 June 2006, LJN AX6440, NJ 2006/461 (DES); Amsterdam Court of Appeal, 25 January 2007, LJN AZ7033, NJ 2007/427 (Dexia); Amsterdam Court of Appeal, 29 April 2009, LJN BI2717, JOR 2009/196 (Vie d'Or); Amsterdam Court of Appeal, 29 May 2009, LJN BI5744, JOR 2009/197 (Shell); Amsterdam Court of Appeal, 15 July 2009, LJN BJ2691, JOR 2009/325 (Vedior); Amsterdam Court of Appeal 17 January 2012, LJN BV1026 (Converium); Amsterdam Court of Appeal, 4 November 2014, JOR 2015/10 (DSB) Amsterdam Court of Appeal 24 June 2014, ECLI:NL:GHAMS:2014:2371 (DES II) and Amsterdam Court of Appeal, 13 July 2018, ECLI:NL:GHAMS:2018:2422 (Ageas).

9 See, for example: Amsterdam Court of Appeal, 27 January 2007, LJN AZ7033 (Dexia), Paragraph 3.12; Amsterdam Court of Appeal, 29 April 2009, LJN BI2717, JOR 2009/196 (Vie d'Or), Paragraph 3.3.

10 Article 7:907(1) Dutch Civil Code.

11 Article 7:907(3)(f) Dutch Civil Code.

12 Amsterdam Court of Appeal, 27 January 2007, LJN AZ7033 (Dexia), Paragraph 5.23 ff.

13 District Court of Amsterdam, 18 April 2018, JOR 2018/201.

14 Supreme Court of the Netherlands, 9 December 2017, NJ 2017/11.

15 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 Appeal has exclusive jurisdiction to decide on Pre-Agreed Settlements under the WCAM. Article 1013(3) Dutch Civil Code. Kamerstukken II 2003/04, 29 414, No. 3, p. 25.

16 Amsterdam Court of Appeal 1 June 2006, LJN AX6440, NJ 2006/461 (DES); Amsterdam Court of Appeal 25 January 2007, LJN AZ7033, NJ 2007/427 (Dexia); Amsterdam Court of Appeal 29 April 2009, LJN BI2717, JOR 2009/196 (Vie d'Or); Amsterdam Court of Appeal 29 May 2009, LJN BI5744, JOR 2009/197 (Shell); Amsterdam Court of Appeal 15 July 2009, LJN BJ2691, JOR 2009/325 (Vedior); Amsterdam Court of Appeal 17 January 2012, LJN BV1026 (Converium); Amsterdam Court of Appeal 4 November 2014, JOR 2015/10 (DSB) and Amsterdam Court of Appeal 24 June 2014, ECLI:NL:GHAMS:2014:2371 (DES II) and Amsterdam Court of Appeal 13 July 2018, ECLI:NL:GHAMS:2018:2422 (Ageas).

17 Pursuant to Article 7:907(4) Dutch Civil Code, the Court may not amend or supplement the settlement except with the petitioning parties' consent.

18 Article 1018 Dutch Code of Civil Procedure.

19 Article 79 Dutch Law on the Organisation of the Judiciary.

20 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.

21 See the record of the court session in Shell of 12 July 2007, the record of the court session in Converium of 24 August 2010 and the record of the court session in Ageas of 27 March all published on the website of the Court.

22 Article 7:907(2)(3) Dutch Civil Code.

23 Amsterdam Court of Appeal 17 January 2012, LJN BV1026 (Converium), Paragraph 6.2.

24 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).

25 Amsterdam Court of Appeal, 25 January 2007, LJN AZ7033, NJ 2007/427 (Dexia), Paragraph 6.6.

26 Amsterdam Court of Appeal, 29 May 2009, LJN BI5744, JOR 2009/197 (Shell), Paragraph 6.15–6.17.

27 Amsterdam Court of Appeal, 17 January 2012, LJN BV1026 (Converium), Paragraph 6.4.1–6.4.5.

28 Amsterdam Court of Appeal, 17 January 2012, LJN BV1026 (Converium), Paragraph 6.5.1–6.5.7.

29 Article 7:908(2) Dutch Civil Code.

30 Article 7:908(2) Dutch Civil Code.

31 Article 7:908(4) Dutch Civil Code.

32 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 I bis Regulation).

33 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 I bis Regulation and the Lugano Convention.

34 See Article 8 Section 1 of the Brussels I bis Regulation, see Article 6 Section 1 of the Lugano Convention.

35 As a consequence, the Court also assumed jurisdiction on the basis of the predecessor of Article 7, sub 1 of the Brussels I bis Regulation and Article 5 sub 1 of the Lugano Convention.

36 Amsterdam Court of Appeal 29 May 2009, LJN BI5744 (Shell), Paragraph 6.3; A similar formula was employed in Amsterdam Court of Appeal 15 July 2009, LJN BJ2691 (Vedior), Paragraph 4.20 and 4.21; and Amsterdam Court of Appeal 4 November 2014, JOR 2015/10 (DSB), Paragraph 6.2.3 and 6.2.4.

37 Amsterdam Court of Appeal 17 January 2012, LJN BV1026 (Converium), Paragraph 10.2.

38 Amsterdam Court of Appeal 16 June 2017, JOR 2018/10 (Ageas).