NETHERLANDS Law and Practice Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
Court of Appeal to declare the settlement binding on all injured persons. To that end, all the injured persons on whose behalf the settlement was concluded must be summoned and informed of the possibility to raise objections against the settlement in the procedure on the basis of the WCAM. After establishing that the injured persons have been properly summoned, the Amsterdam Court of Appeal will then assess the settlement. The settlement will not be declared generally binding if (inter alia): • the amount of the compensation to be paid is unreasonable, taking into account the extent of the damages, the simplicity and speed with which compensation can be obtained by the injured par- ties under the settlement and the possible causes of the damages; • the interests of the injured persons are insufficiently safeguarded; • the interest organisation is insufficiently representa- tive in terms of the interests of the injured persons on whose behalf the settlement has been conclud- ed; and/or • the group of injured persons on whose behalf the settlement has been concluded is too small to jus- tify declaring the settlement generally binding. If the Amsterdam Court of Appeal declares the settle- ment generally binding, injured persons must be given the possibility to opt out in a period of at least three months after the announcement of that decision. If (and to the extent) they have not opted out, the settle- ment will in principle be binding on all injured persons. A particular feature of the WCAM is that upon the request to declare a settlement generally binding, any and all procedures relating to disputes that the settle- ment agreement aims to end are stayed by operation of law until after the procedure on the basis of the WCAM. The Assignment Model There is no special procedure for actions on the basis of the assignment model or mandates/powers of attorney. Hence, such proceedings are, in principle,
conducted like any other, albeit that the defendants usually raise specific defences as to the validity of the assignments, mandates and/or powers of attorney (although such defences are generally dismissed). In practice, proceedings on the basis of the assign- ment model or mandates/powers of attorney tend to be so complex and voluminous that courts often decide in case management hearings on specific ad hoc regimes for these cases, usually requiring claim- ants and defendants to co-operate. 3.3 Standing Collective Action – WAMCA Pursuant to Section 3:305a of the DCC, only a foun- dation or an association with full legal capacity may bring a collective action. In order to do so, that foun- dation or association must show that it is advancing the interests it seeks to protect in accordance with its articles of association and that the interests of the injured parties are sufficiently safeguarded. The interests of the injured parties are sufficiently safeguarded if the interest organisation is sufficiently representative in terms of the persons whose interests the collective action seeks to protect, given its con- stituency and the size of the claims it represents, and if the interest organisation has (inter alia): • appropriate and effective means for participation or representation by the persons whose interests the collective action seeks to protect; • sufficient resources to bear the costs of bringing the collective action, whereby the interest organi- sation must have sufficient control over the (con- duct of the) collective action; • a publicly accessible website on which information about the governance and collective actions of the interest organisation is available; and • sufficient experience and expertise in the area of bringing and pursuing such a collective action. It should be noted that the district court may declare an interest organisation admissible without it satisfying these requirements if the collective action is brought for an idealistic purpose and the financial interest is very limited, or if the nature of the claim of the interest organisation or the persons whose interests the col-
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