section 1 of the Brussels I Regulation and the Lugano Convention. Representing Petrobras in its defence in a securities mass claim submitted by a mass claim vehicle allegedly representing a worldwide class of holders of securities (US investors excluded) who claim to have suffered financial loss as a result of the alleged fraud with the Petrobras group during the period between 2004 and 2014. A court will also assess whether the entity is capable of properly safeguarding the interests it represents. Enforcement of Foreign Judgments Comparative Guide for the jurisdiction of UK, check out our comparative guides section to compare across multiple countries, No one who does business under a contract with another person wants to end up in a dispute with that other person. However, one or more of the potential claimants may claim damages in individual proceedings on the basis of a declaratory judgment in the Collective Action, which judgment will then serve as a starting point in such individual proceedings. There is an exception for specific claims that protect the interests of consumers (. 2000") was applicable. It applies to collective actions that relate to events that took place on or after 15 November 2016. As a consequence, a settlement will normally Nyt VTT:n ennakointitutkijat kokosivat suomalaisia asiantuntijoita visioimaan tulevaisuutta 80 vuotta eteenpin: millaisen maailman haluamme ja mit pitisi tehd jo nyt? suffered by shareholders allegedly caused by misleading statements Dutch government, when introducing WCAM to parliament, initially benefit the settlement agreement was concluded were not Live news, investigations, opinion, photos and video by the journalists of The New York Times from more than 150 countries around the world. A.R.J. Does the loser pays rule apply? This trend can be attributed to new Dutch legislation on class actions. Subsection b includes the category impairment of the person in another way'. De Brauw Blackstone Westbroek N.V. Machteld de Monchy If there is a basis for liability, the damage and lost profits caused by the action resulting in liability are generally recoverable under Dutch law. If the court declares the settlement binding, beneficiaries must opt out within the period specified by the court (of at least three months) if they prefer not to be bound by the settlement. may invoke the binding declaration themselves, in which case they the other activities of the representative on behalf of the persons bought or sold shares during the relevant period were residents of In class settlement proceedings, initially only the parties to the settlement agreement are parties to the proceedings. In practice, the defendants sometimes contribute in differing ways to the compensation that is provided to one or various groups of beneficiaries. Netherlands maybecome a serious alternative for the certification The massaschade: waar blijven de Himalayabeklimmers TvOB, Tijdschrift De Brauw Blackstone Westbroek N.V. OpenTexts $1 Billion Senior Secured Notes Offering. 1.9 How many group/class actions are commonly brought each year and in what areas of law, e.g., have group/class action procedures been used in the fields of: Product liability; Securities/financial services/shareholder claims; Competition; Consumer fraud; Privacy; Mass tort claims, e.g., disaster litigation; Environmental; Intellectual property; or Employment law? the activities of these foundations and associations apart from jurisdiction on the basis of the "forum non 4.2 If so, please explain what these are. For example, if the fair and proper administration of justice can be sufficiently secured without disclosure, that fact cannot be a ground for denying a claim under Article 843a. Airbus hit with $339 million class action suit in the Netherlands. The former regime will apply to actions for events that took place before that date. in the language of the receiving State. the parties that will pay the compensation for the event that has caused damage; and. The Court found that this was not unreasonable, as the USD is This possibility will be restricted once the statutory amendments following the transposition of the CRD come into effect on 25 June 2023. these persons need to opt out in order to still have standing in Very interesting, but not further substantiated. aspects. In general, an appeal must be lodged within three months of the date of the first instance judgment. Acting as defence counsel to Trafigura in its defence strategy against pending and upcoming class action litigation by several Dutch and foreign mass claim vehicles concerning the Probo Koala in connection with the alleged exposure to the alleged disposal of chemical waste in Ivory Coast. The Court accepted these two Parties can request a court to order the examination of witnesses before or at any stage during the proceedings. Court assumed jurisdiction with regard to the shareholders The included in the group of interested parties. Shell of 12 July 2007, published on the Watch breaking news videos, viral videos and original video clips on CNN.com. rely on information about foreign law as provided by the parties. This ground for jurisdiction was based on article 3 of the Dutch Code of Civil Procedure ("DCCP"), which provides that, in this type of proceeding [see Endnote 6], Dutch 5.6 Do special rules apply to the settlement of claims/proceedings, e.g., is court approval required? EU. preceding paragraph is different from the situation where a certain Converium implies that even if the case is substantively This can include disclosing certain documents in their custody that are relevant to the case. In such a case, the Court will fully test whether such Practice Areas > are unknown to the petitioners. 31 In Shell (grounds 6.15-6.17), the Court held on Under the WAMCA, the court-appointed exclusive representative will take the lead role in the proceedings (a system bearing resemblance to the US lead plaintiff system - for more information, see our update on the first anniversary of the WAMCA). "VEB"). However, the size of the group of persons entitled to compensation must justify the binding declaration of the settlement agreement; it must result in a more efficient settlement of the damages. rise to litigation outside the US, which suggests that it is interested persons, their activities in the media, and their 18 Direct international notification, insofar as EUdomiciled Toelichting) to WCAM, p. 4. In the WCAM proceedings concerning Ageas, the court accepted that some level of compensation for such fees is acceptable in the settlement, although it will scrutinise the reasonableness of such compensation. as well as after the binding declaration has been issued. potentially liable parties, and one or more foundations or Do you want to know more about the Real Estate markets in Luxembourg and Belgium? Parties are obliged to represent all relevant facts truthfully and in full. In education, a curriculum (/ k r k j l m /; PL: curricula / k r k j l / or curriculums) is broadly defined as the totality of student experiences that occur in the educational process. This period can be extended by the court upon request. This ground In Shell, one of the All types of claimants can bring a bundle of individual claims on the basis of a power of attorney given by the individual claimants, or on the basis of assignment of the claims to a claiming entity (. Does the Court assume that the breaches of standards are so serious that the adverse consequences are obvious? This class action is also backed by an external litigation funder, IVO Capital. In a Collective Action, the law does not only refer to the general rules on the quantification of damages (section 6.1.10 DCC) but also gives the court additional guidance (article 1018i (2) DCCP). sufficient size of interested persons (final decision, ground All other entities remain parties to the proceedings. This includes the spouse or former spouse of one of the parties and certain other close relatives, as well as parties who have a professional privilege exemption. According to the Supreme Court, interests are sufficiently similar if they can be bundled so that a collective action is an efficient and effective way of safeguarding them. in this type of proceeding [see Endnote 6], Dutch courts have unreasonable. the majority of the known shareholders were not domiciled TikToks way of advertising should ensure that the (often young) users of TikTok do not realise that they are looking at advertisements. 3.6 Does the court appoint experts to assist it in considering technical issues and, if not, may the parties present expert evidence? The pressing question is whether the class actions have any chance of success. 12. 2000). entities is seated in the Netherlands. Project Organisation: Sourcing International. Consumers claims can be assigned to a representative consumer association or representative body and brought by that body. determining the amount of compensation (see the Shell above-average thoroughness. This scholars on the basis that it violated It is expected that the proposed EU law on representative actions will not substantially change the Dutch legislation. 36 Whether the WCAM procedure will prove to be helpful in Other ways of claim bundling include the use of a mandate agreement (article 7:414 DCC) or power of attorney (article 3:60 DCC). Multiple defendants can also instruct the same lawyers or experts. Representing large charitable organisations in a litigation concerning the allocation of an inheritance of approximately EUR26 million. 2.1 Do you have a procedure permitting collective actions by representative bodies, e.g., consumer organisations or interest groups? The potential claimants are not bound by that judgment, nor is the defendant bound vis--vis the potential claimants. Whether the persons who the organisation represents have accepted the organisation. not result in full compensation of the losses as originally the formal criteria of this provision were met, the provision would involved Converium and Zurich Financial Services Multiple defendants can enter into "joint defence agreements" (or other arrangements) to share confidential information (without waiving privilege, including other protections such as a process to be followed if conflicts arise). declaration against them and that, on the other hand, these persons Parties can request an interim measure from the competent district court in all urgent cases in which an immediate measure is required to protect the interests of the parties (. The monetary claims against TikTok are remarkable because Dutch courts so far tend to award damages of between EUR 250 and EUR 500 in cases of GDPR breaches, a fraction of what is claimed here. relevant in these cases is that no proper service of the defendant Class settlement proceedings allow flexibility to enter into various settlements between defendants and with regard to a variety of claimants. Toelichting) to WCAM, Parliamentary Proceedings II substantively applicable if the litigation concerns a "civil 9.1 Can claims be brought by residents from other jurisdictions? Recht en Praktijk, Deventer 2007. Claims can, for instance, be assigned to a claims vehicle, which can then commence proceedings in its own name. settlement agreements may differentiate between different groups of Time Limits 5. Dutch law provides for several limitation periods. A similar formula was Both approaches are available; preliminary issues will, in most cases, relate to matters of law. In that case, petitioners can only appeal to the Supreme Court as a group. Class action proceedings for monetary damages are subject to certain admissibility requirements. There are no special considerations for privilege under the law in relation to representative collective actions or class settlement proceedings. De AEX Index is een van de originele Blue Chip Indices van Euronext. appointed by each Member State, it provides in article 14 that each Shell entities settling the matter was Dutch (the other was a UK A claimant can bring a bundle of claims in the name of several individual claimants through a power of attorney obtained from them. Thus far, Parties can initiate a private, non-court supervised and undisclosed negotiation process among the representatives of the interested parties. created for the occasion, provided it can meet the representativity There is no jury system in the Netherlands. Professors are usually experts in their field and teachers of the highest rank.. The parties can choose whether the settlement agreement is governed by Dutch or foreign law. A request under Article 843a should be denied if the information is subject to legal privilege. Current Dutch law, however, does not facilitate a class action for monetary damages. Such settlement can be declared binding for all injured parties by the Amsterdam Court of Appeal (section 7:907 Dutch Civil Code). Funding 8. equivalent. amount of compensation awarded in the settlement 9 Currently, an amendment to the WCAM is pending. In the context of the WCAM, although there are no precise rules on dividing the damages, the court will analyse whether the proposed recovery is reasonable for all group members. Janes | The latest defence and security news from Janes - the trusted source for defence intelligence Under Dutch law, a claim for civil damages can be joined to criminal proceedings. In class settlement proceedings, the parties that request the Amsterdam Court of Appeal to declare the collective settlement binding on all class members are the parties to the collective settlement. There will be a second opt-out opportunity if the Collective Action concludes with a court-approved settlement. However, to declare a settlement binding on all affected parties under the WCAM regime, approval by the court is required. 33 In our view, this would not be a problem. 1.7 Who can bring the class/group proceedings, e.g., individuals, group(s) and/or representative bodies? The court will look at the following factors to assess reasonability: The ease and speed of obtaining compensation. In Converium, the If so, please outline the procedure. International Class Action Settlements in the Netherlands. There are no explicit requirements concerning the number of claimants that must or can be involved. both stages, and thus have had an opportunity to object and to opt are both Swiss), and where only a limited number of the potential The Dutch legal system currently has two different collective redress mechanisms: A class/collective settlement mechanism based on an opt-out system that resembles US class action settlements. collectieve actie en de Wcam, Geschriften vanwege de Vereniging limitation is reasonable instead of just testing whether it is not 4 In its interim decision of 12 November 2010 and its final Euthanasia (from Greek: 'good death': , eu 'well, good' + , thanatos 'death') is the practice of intentionally ending life to eliminate pain and suffering.. 11 See the minutes of the court session in A different system for foreign class members applies and they are not bound if they do not opt in, unless the court orders that an opt-out system applies. Other trends include the increase in the number of civil damages actions following a decision by the European Commission establishing a competition law infringement. "normally" not be expected to be representative for a test. of the settlement (final decision, ground 6.2). There are no restrictions on the nature or extent of this expert evidence. 8.2 Can consumers claims be brought by a professional commercial claimant which purchases the rights to individual claims in return for a share of the proceeds of the action? Class Actions Class/Collective Actions in the Netherlands There are two different collective redress mechanisms in the Dutch legal system: representative class actions, and a mechanism 3.11 How long does it normally take to get to trial? Significant developments affecting this resource will be described below. If the parties reach an agreement, they must submit it to the court for approval. Regulation 2008 takes as a starting point that service of documents writ served on the opposing party. settlement agreement at all (in that case, the group of haemophilia Pursuant to the general rules of professional conduct, lawyers are, in principle, not allowed to enter into conditional or contingency fee arrangements with their clients. Shell and two out of four petitioners in 9 See the minutes of the court session in Shell of 12 July The court scrutinises the reasonableness of the compensation offered and refuses to declare the settlement binding if it finds that it is not reasonable. less elaborate manner. reason may be that Shell and Converium are much The question must relate to an issue that is relevant to resolving a significant number of claims or cases based on the same factual background. If the court finds that the defectiveness of the claim was summarily apparent, it can order the claimant to pay a higher amount to the defendant, up to five times the fixed amount, unless fairness dictates otherwise. Explanatory Memorandum to the proposed amendments to the WCAM, show In what way should the damage from the unlawful sharing/processing of personal data be estimated? An appeal takes about the same length of time. settlement agreement to be declared binding has to be executed in 6.5.7). The Code of Civil Procedure has a number of provisions allowing a party to apply to the court for an order to disclose certain data or documents that are in the custody of a party to the proceedings or a third party. Trilogues started in January 2020. "Lugano" countries). For example, the District Court of Gelderland ruled that secretly filming a woman and her daughter in the bathroom was such a violation of norms that the adverse consequences were obvious. However, in 2020, the law was changed, with the introduction of the Resolution of Mass Damage in Collective Action Act (the WAMCA), to no longer exclude the possibility of awarding monetary damages collectively. The courts 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. is in USD, differences may be caused by exchange rate differences. the shareholders domiciled in the Netherlands. them to get compensation outside the US, whereas it was improbable The court will only decide on compensation if the parties fail to reach an agreement during the representative collective action. provide sound information about foreign law to the Court, as such Find current and upcoming funding opportunities for your research, as well as research partners, jobs and fellowships. The WCAM is incorporated in articles 7:9077:910 DCC and articles 10131018 of the Dutch Code of Civil Procedure (the DCCP). New Dutch legislation on class actions: an update On 19 March 2019 the Dutch Senate adopted the Act on collective damages in class actions, amending the Class-Action (financial settlements) Act ( de Wet afwikkeling massaschade in collectieve actie, the WCAM ). 7 Parl. involved (see Shell, ground 6.3). 7.1 Is public funding, e.g., legal aid, available? However, will be effected through the intermediary of central authorities LUSAIL, Qatar (AP) Grant Wahl, one of the most well-known soccer writers in the United States, died early Saturday while covering the World Cup match between Argentina and the Netherlands. Dutch law of evidence in civil matters will, however, likely be amended in the near future in an attempt to encourage evidence gathering before the initiation of proceedings. Therefore, a full case can take three to five years. ICLG.com > Practice Areas > Class and Group Actions > Netherlands Chapter Content Free Access 1. Brussels I Regulation and the Lugano Convention). shareholders. shareholders were represented in a similar manner as in that the Court will have to test the "reasonableness" of In WCAM proceedings, the Amsterdam Court of Appeal has also allowed a for-profit Belgian company (in Ageas) and the State of the Netherlands (in Vie dOr) to be co-petitioners. However, it is also possible to submit written witness statements, although such written statements are considered to be written evidence. They are funded in whole or in part by taxation. WCAM. meticulously. 1.8 Where a class/group action is initiated/approved by the court, must potential claimants be informed of the action? The Netherlands is unique in its opt-out class actions settlement procedure at the Amsterdam Court of Appeal. & Corporate Governance, Environmental, Social The extent to which the organisation has actually promoted the interests of the persons involved and has presented itself as such in the media. This is the common dilemma considered by the Courts in a claim for proprietary estoppel. internationally accepted and the shareholders were residing in Providing strategy advice to an international bank with regard to its possible exposure to mass claims. recognition. The several different jurisdictions. 3.12 What appeal options are available, including whether an appeal can be taken immediately of a decision certifying a class or entering a group litigation order? Shell. As the third anniversary of the Dutch Collective Damages in Class Actions Act (Dutch acronym WAMCA) draws near, we look back to identify notable trends in Dutch class actions. Representing Petrobras in its defence in a securities mass claim submitted by a mass claim vehicle allegedly representing a worldwide class of holders of securities (US investors excluded) who claim to have suffered financial loss as a result of the alleged fraud with the Petrobras group during the period 2004-2014. Trilogues started in January 2020. Where lawyers in the Netherlands are not entitled to work on the basis of No cure no pay, this does not apply to such third-party litigation funders. 19 See for an analysis of the recognition issues, Van Lith Although obtaining disclosure on this basis is subject to certain requirements, the lower courts tend to take a more generous view on well-reasoned applications. considerable lawyers' fee of 20%. The Dutch Class Action Act (The Act) and effectively strengthened the Dutch class action climate. request for service will require a translation of the notification Advising and representing Trafigura in its defence strategy against pending and upcoming class action litigation by several Dutch and foreign mass claim vehicles concerning the Probo Koala in connection with the alleged exposure to the alleged disposal of chemical waste in Ivory Coast. This test implies that the Court will not easily decide Instead, case law thus far gives the impression of Dutch courts resorting to ballpark guesses and a feels right approach that is - technically - at odds with Dutch legislation and case law on determining damages in civil suits. 4.1 Are there any time limits on bringing or issuing court proceedings? 9.2 Are there any changes in the law proposed to promote or limit class/group actions in your jurisdiction? The fact that the judgment in the main case would create a precedent that could affect other parties with similar claims was not considered by the Supreme Court to be a sufficient enough interest to allow those other parties to join the main case. However, it held that despite this After the exclusive representative has been appointed, the Dutch class members for whose benefit the action is brought can choose to opt out within a timeframe of at least one month. While the procedure with the ECJ is expected to last for 2 years, it is evident that the answers will greatly influence claims for damages under the GDPR going forward. If you continue to use this website without changing your cookie settings or you click "Accept" below then you are consenting to this. Explanatory Memorandum to the amendments to the WCAM, p. Both a Collective Action and a WCAM procedure can be initiated by representative organisations such as consumer organisations or interest groups. Justice.8. international instruments, the shareholders are to be regarded as Regulation and the Lugano Convention appears to be the right one. that they would get compensation in the US. to the fact that the alleged misleading statements had not given Costs 7. According to the Court, the non-US shareholders were A representative entity will also not have standing if it did not try to engage with the defendant before bringing its action. negotiations in which all parties have made concessions. Dutch entities. Procedure ("DCCP"), which provides that, Ondernemingsrecht 2005-15, p. 505. litigation and after the binding declaration, may take place by The Claim Code 2019 consists of seven "comply or explain" principles, each with a further explanation, that deal with the governance of claim vehicles and third-party funding. State, a solid argument can be made that the decision to declare a claimants were domiciled in the Netherlands.3. represented parties in other published cases discussed in this The first aspect discussed here is the reasonableness of De Brauw Blackstone In addition, international law firms and litigation funders have increasingly converged on the Netherlands as one of Europes class actions hubs. State of the EU, or in Norway, Switzerland or Iceland (the provides parties to a settlement agreement with the possibility of By using our website you agree to our use of cookies as set out in our Privacy Policy. Instead, the pre-WAMCA regime merely allows for declaratory relief, which serves as a steppingstone for a collective (court approved) settlement and/or individual follow-on proceedings. judgment against the defendant. Lith has published an updated version of this report under the same the Service Convention and similar instruments.11 The parties), and whether public policy in their own jurisdiction is at This is an area of recent attention and revisions to a soft-law instrument known as the claim code have been made. light on these types of issues. Non-material damages are claimed through article 6:106 subsection b of the Dutch Civil Code (DCC). An act of a competition authority within the context of an investigation or proceedings in relation to the infringement of competition law on which the claim is based. For a Collective Action to which the WAMCA applies, there is a procedure in which the representative organisation must register the case in the central register for Collective Actions within two days after service of the summons on the defendant. In principle, all documents can be presented as evidence and the court decides the value of the evidence presented. Under the WAMCA, a representative entity must have sufficient control of the legal action. 3. Amsterdam Court of Appeal 15 July 2009, JIN 2009, 620 This trend can be attributed to new Dutch legislation on class actions. However, there was a remarkable decision on this issue given by the Amsterdam Court of Appeal in, There is no rule preventing alternative funding of litigation other than the bar rules that forbid lawyers from making contingent fee arrangements. Latest news from around the globe, including the nuclear arms race, migration, North Korea, Brexit and more. 2004-2005 I, 29 414, no. Exceptions are also made for information coming from the competition authority's files. Defending a Luxemburg airline in several proceedings against an accumulated number of cartel damages claims submitted by several claim vehicles arising from the alleged air cargo cartel. Netherlands. TPC claimed that Oracle and Salesforce unlawfully processed personal data, among other things because of their crucial role in the Real Time Bidding (RTB) process. the WCAM, namely in DES (regarding personal injury allegedly caused There are no specialist courts to hear Collective Actions. associations representing one or more groups of persons for whose 14 See Memorandum of Reply, Parliamentary Proceedings Some provisions from the WCAM apply by analogy. 1.11 Are there any limitations in your jurisdiction on global/cross-border class or group actions, including any limitation on the ability of international claimants to participate in such actions? Instead, the parties positions are generally debated at length in written submissions, although oral argument does generally follow such submissions. Class and Group Actions > However, parties are free to offer counter-evidence against conclusive evidence (unless this possibility is excluded by law). 18 See A. Halfmeijer, Recognition of a WCAM settlement in That all damage suffered must be compensated is clearly stipulated in the GDPR. Dutch law generally provides that all compensatory damages are recoverable, without a specific limit. 19. Procesrecht, Van Mierlo/Bart, p. difference the settlement amount was not unreasonable. in the Netherlands, but in the UK and Switzerland. The criteria on the basis of A substantive hearing of the collective action will only take place after the court has decided that the following all apply: The representative entity meets the standing requirements of Article 3:305a, Civil Code (. take place by regular mail or by e-mail, except for the binding effect of a settlement agreement is only regarded as (Vie d'Or). after the binding declaration. declaring international settlements binding will in the long run 8 Helene van Lith, The Dutch Collective Settlements Act and proceedings initiated by a petition to the court rather than by a petitioner is sufficiently representative for a group of a de WCAM als procesvorm, AV&S, October 2007, p. 222. "interested persons"). Parliamentary Proceedings II 2011-2012, 33 126, no. The costs granted by the court are based on standard amounts for standard activities and on the amount of the claim. Whether TikToks alleged breaches are of similar magnitude remains to be seen though the interest organisations have argued that the age of the children and the materiality and duration of the breaches justify the substantial damages they have claimed. The Court found that regarding the interests of the persons for whose benefit the residing in the Netherlands. The court that must decide on reflect an international application of the WCAM, one of the two 4.3 To what extent, if at all, do issues of concealment or fraud affect the running of any time limit? 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