NETHERLANDS Law and Practice Contributed by: Theodoor Verheij, Barbara van der Ven, Bas Lem and Jeroen van den Brande, Brande & Verheij LLP
3.11 Remedies With the entry into force of the WAMCA, the remedies that are available through a collective action are now the same as in proceedings on the basis of the assign- ment model or mandates/powers of attorney: • specific performance; • injunctive relief; • a declaratory judgment establishing liability, wheth- er or not together with damages to be assessed later in separate follow-up proceedings; and • monetary damages. In a procedure on the basis of the WCAM, the only available remedy is that the settlement is declared generally binding. This remedy is also available in the settlement stage of a collective action. 3.12 Settlement and ADR Mechanisms The WCAM is a formal mechanism for the settlement of mass damages par excellence. However, the WAM- CA – and especially the settlement stage of collective actions – is also geared towards reaching a settle- ment. Settlements are also common in proceedings on the basis of the assignment model or mandates/ powers of attorney. In relation to ADR, settlement negotiations in the preliminary stage of a procedure on the basis of the WCAM are particularly suitable for the use of ADR mechanisms. In general, any settlement negotiations in respect of mass damages could (and do) benefit from ADR mechanisms such as mediation. In Dutch legal literature, there has been some debate as to whether collective actions (under the WAMCA) can be brought in arbitration. Reasonable arguments can be made both for and against. To date, it appears that no collective actions have been brought in arbitration. 3.13 Judgments and Enforcement of Judgments Collective Action – WAMCA As discussed in 3.2 Overview of Procedure , the fol - lowing individuals are in principle bound by a final judgment in a collective action:
• Dutch residents belonging to the narrowly defined group of injured persons whose interests the inter- est organisation is seeking to protect who did not opt out; and • non-Dutch residents belonging to this narrowly defined group who opted in (unless the district court has decided that they will also be represent- ed on an opt-out basis). However, the judgment will have no effect in respect of a person who, at the time of the announcement of the relevant decisions, could not have been aware of the damage they suffered, if that person, after becom- ing aware of its damage, has notified the defendant in writing that it does not wish to be bound. Collective Settlement – WCAM After a successful procedure on the basis of the WCAM, the settlement will, in principle, be binding on all injured persons who did not opt out. However, the settlement will not be binding in respect of a person who, at the time of the opt-out possibility, could not have been aware of the damage they suffered, if that person, after becoming aware of the damage it has suffered, has notified the relevant party in writing that it does not wish to be bound. The Assignment Model The judgment in proceedings on the basis of the assignment model or mandates/powers of attorney will only be binding on the SPV and/or the injured parties who assigned their claims to the SPV or gave the SPV a mandate/power of attorney. Otherwise, the nature of the judgments delivered in collective actions and settlements and in proceedings on the basis of the assignment model or mandates/powers of attorney is no different than the nature of judgments in regular proceedings. There is no special mechanism for the enforcement of these judgments after the decision. The judgments delivered in collective actions and settlements, and in proceedings on the basis of the assignment model or mandates/powers of attorney also qualify as judgments within the meaning of Arti- cles 36 and 39 of the Brussels I Regulation (Recast); hence, they shall be recognised, and can therefore also be enforced, in other member states of the European Union. However, pursuant to Articles 45 and 46 of the
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