NETHERLANDS Law and Practice Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
similar way. Those parties can be both natural persons as well as legal entities. The requirement of similarity is met if the interests that the collective action seeks to protect can be bundled, thus promoting an efficient and effective legal protec- tion for the injured persons. Interests can be bundled if the questions of fact and law concerned are suffi- ciently common to the group of injured persons whose interests the interest organisation is seeking to pro- tect that these issues can be adjudicated in a single, collective procedure, without having to consider the specific circumstances of individual members of the group. Hence, whether the similarity requirement is met depends on whether these specific circumstanc- es can be sufficiently abstracted from when assessing the collective action (ie, do not make the difference between class members). However, the interests do not have to be identical in content or scope. Temporal Scope The temporal scope of the WAMCA is limited. The WAMCA does not apply to collective actions in rela- tion to events that took place before 15 November 2016. However, for a series of events that took place both before and after 15 November 2016, and that constitute a single and continuous tort, such as a car- tel, legislative history should be construed in such a way that the WAMCA applies to the entire series of events. Geographical Scope In order for a collective action to be admissible, the Dutch courts must have jurisdiction and the case must have a sufficiently close connection with the Dutch jurisdiction. The latter is the case if: • the majority of the persons on whose behalf the collective action is brought are Dutch; • the collective action is brought against a Dutch defendant, and the case otherwise also has a suf- ficiently close connection with the Dutch jurisdic- tion; or • the event to which the case relates took place in the Netherlands. Under the WCAM, such requirements do not apply. In fact, the vast majority of the injured parties to which
the Shell and Converium collective settlements related were not Dutch. This was also the case (although to a lesser extent) for the injured parties within the scope of the Fortis/Ageas collective settlement. In Converium , none of the potentially liable persons were Dutch and the event to which the collective settlement related did not take place in the Netherlands. Nonetheless, the Amsterdam Court of Appeal assumed jurisdiction and declared the collective settlement generally binding. 2.3 Definition of Collective Redress/Class Actions Pursuant to Section 3:305a of the DCC, a collective action is a legal action brought by a foundation or an association with full legal capacity, seeking to protect similar interests of other persons, provided that those interests are sufficiently safeguarded. On the relevant safeguards, see 3.3 Standing . Pursuant to Section 7:907 of the DCC, a collective settlement is a settlement in respect of the compensa- tion of damages caused by an event or similar events between a foundation or an association with full legal capacity on the one hand and a party that will pay the compensation on the other hand; it is declared binding on all injured persons. 3. Procedure for Bringing Collective Redress/Class Actions 3.1 Mechanisms for Bringing Collective Redress/Class Actions Apart from collective actions, which can be brought before any competent district court, and collective settlements, which can only be declared generally binding by the Amsterdam Court of Appeal, there are two other main mechanisms for collective redress: the so-called assignment model and a bundled action on the basis of mandates/powers of attorney. These mechanisms are particularly used in cartel damages actions. The Assignment Model Under the assignment model, the injured parties first assign their claims to a special purpose vehicle (SPV), which then initiates the proceedings, as the owner of the claims, in its own name and for its own risk and
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