NETHERLANDS Law and Practice Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
and parties that are held accountable the possibility to request a hearing before a request has been made to declare a settlement generally binding, in order to test a settlement within the meaning of the WCAM. Moreover, pursuant to Section 392 of the DCCP, a court may also refer questions of law to the Supreme Court for a preliminary ruling if this is required for the court to be able to render a decision and provided that such a preliminary ruling is directly relevant to a multitude of claims related to the same or similar facts. An illustration of the far-reaching case management powers of the courts is the direction of the Amsterdam District Court in the Air Cargo and Trucks cases that the defendants as well as the claimants should, to the extent possible, align their respective positions and draft joint submissions. This is seen in other cases as well. 3.7 Length and Timetable for Proceedings While proceedings in the Netherlands take an average of one to two years per instance (first instance, appeal and appeal in cassation), mass damages claims tend not to be the average case. They can be rather com- plex and time-consuming, especially in the case of interim appeals and with regard to the quantification of damages. For example, the first case that made it to adjudication, the Vattenfall collective action, took some two and a half years in the first instance. Courts tend to use their case management powers to set a timetable that fits the specific proceedings, usually after discussing this with the parties at a case man- agement hearing. 3.8 Mechanisms for Changes to Length/ Timetable/Disposal of Proceedings As discussed in 3.6 Case Management Powers of Courts , courts have ample case management powers, including in terms of the timetable for the proceed- ings. For example, in complex cases, courts tend to deviate from the standard periods for procedural acts under Dutch procedural law, and allow longer periods, usually upon the request of (one of) the parties. Furthermore, an essential feature of the WAMCA is the inclusion of both an admissibility stage (the Dutch law equivalent of the motion to dismiss) and a settlement
stage, meaning that the district court will only have to deal with the collective action on the merits if the case has not been resolved at one of these earlier stages. Finally, a claimant in proceedings on the basis of the assignment model or mandates/powers of attorney has the option not to claim monetary damages, but a declaratory judgment establishing liability so that damages can be assessed later in separate follow-up proceedings. This tends to accelerate the main pro- ceedings as complex discussions in respect of the quantification of damages can be reserved for the follow-up proceedings. Moreover, a declaratory judg- ment establishing liability can be an incentive for the parties to settle the case, as a result of which such discussions can be avoided altogether. 3.9 Funding and Costs Funding By now, litigation funding has been widely accepted by the judiciary as well as the legislature. In fact, the only form of funding that is still not allowed, on the basis of their Rules of Professional Conduct, is for lawyers to act on the basis of a contingency fee. Oth- erwise, litigation funding is seen as appropriate to pro- mote access to justice for injured persons, provided that their interests are sufficiently safeguarded in the case of collective actions and settlements. Therefore, in proceedings on the basis of the WAM- CA and the WCAM, any funding arrangements will be assessed against that requirement. The WAMCA explicitly provides in this respect that the interest organisation must have sufficient control over the (conduct of the) collective action and that the directors involved in the formation of the interest organisation, and their successors, can have no direct or indirect profit motive, which is realised through the interest organisation. In the Converium and Fortis/Ageas col- lective settlements, the Amsterdam Court of Appeal accepted success fees for litigation funders in the range of 20–25% of the eventual damages. Although these were collective settlements on the basis of the WCAM, courts have also drawn inspiration from this in collective actions on the basis of the WAMCA. Howev- er, in the TikTok collective action the Amsterdam Dis- trict Court took a different approach. In short, it found that no set percentage can be applied regardless of
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