NETHERLANDS Law and Practice Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
justify a joint hearing. Moreover, a court may, in view of the manageability of the proceedings, impose upper limits by way of case management, but nothing pre- cludes the SPV from bringing claims that exceed such upper limits in separate proceedings. 3.5 Joinder Collective Action – WAMCA An essential feature of the WAMCA is that there is, eventually, an exclusive representative (the Dutch law equivalent of the lead plaintiff in a US class action) that acts on behalf of the entire group of injured per- sons. The possibilities for joinder of further interest organisations are therefore in principle limited to those described in 3.2 Overview of Procedure – ie, within three (or upon request up to six) months of the entry of the writ of summons in the initial collective action in the central register and provided that the consecutive interest organisation is admissible. This was recently confirmed by the Hague District Court in a collective action brought by Greenpeace on behalf of the people of Bonaire (individual persons whose interests the interest organisation is seeking to protect with similar claims as the interest organisation cannot be a party to the proceedings) and the Rot- terdam District Court in the collective action brought against Amazon by Stichting Data Bescherming Ned- erland . However, in the Essure collective action, the Midden- Nederland District Court held that it is possible for other parties to lodge claims in proceedings on the basis of the WAMCA, alongside an interest organi- sation. The court found that such claims do not fall under the proceedings on the basis of the WAMCA, but can – if based on the same facts and circum- stances as the interest organisation’s claims – be dealt with together with the claims in the collective action. Interest organisations that are not appointed as the exclusive representative continue to be parties to the collective action. However, in principle only the exclu- sive representative will carry out the procedural acts, although the district court may direct that the other interest organisations may also carry out procedural acts. Furthermore, if the nature of the collective action or of the interest organisations (eg, given its constitu- ency) or of the persons they represent so warrant, the
district court may elect to designate multiple exclusive representatives in a collective action. Collective Settlement – WCAM In a procedure on the basis of the WCAM, the request to declare the settlement binding on all injured per- sons is made by the parties to the settlement agree- ment – ie, the interest organisation and the party that will pay the compensation. In addition, injured per- sons that raise objections against the settlement also become a party to the proceedings. The Assignment Model Unless the relevant limitation period has expired, injured parties can continue to assign their claims to the SPV or give the SPV a mandate/power of attorney after the action has been brought. The SPV can then simply increase its claim in the proceedings. However, a court may, in view of due process of law, impose an end date after which no further increase of claims is allowed, but nothing precludes the SPV from bring- ing additional claims after that end date in separate proceedings. Furthermore, courts tend to use their case manage- ment powers to bundle similar actions brought by different SPVs together to promote efficiency and to prevent conflicting outcomes. 3.6 Case Management Powers of Courts Under Dutch procedural law, courts have ample case management powers, including in respect of collec- tive actions and settlements. Experience shows that courts increasingly make use of these powers. For example, pursuant to Section 87 of the DCCP, a court may, upon request of (one of) the parties or on its own initiative, in all cases and at every stage of the proceedings, order a hearing to (inter alia): • discuss the future course of proceedings with the parties; • give such directions or order such procedural acts it deems appropriate; or • test a settlement. For procedures on the basis of the WCAM, Section 1018a of the DCCP even gives interest organisations
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