NETHERLANDS Law and Practice Contributed by: Bastiaan Cornelisse, Bastiaan Kemp, Michel van Agt and Philippe Hezer, Loyens & Loeff
this may even require a majority shareholder to priori- tise the company’s interests over their own.
obtained. Summary proceedings are expedited pro- ceedings, leaving little room for fact finding. The award of injunctive relief is subject to a prima facie test and a weighing of interests. Such injunctive relief can be similar in scope to immediate measures in inquiry proceedings. Annulment of Resolutions As set out in 2.11 Challenging a Resolution , share - holders may bring an action seeking to annul a resolu- tion adopted by a corporate body. Such an action is brought against the company, as resolutions adopted If a shareholder of a (non-listed) company has been harmed by the conduct of one or more of their fel- low shareholders to such an extent that they cannot reasonably be expected to remain a shareholder, they can seek a compulsory transfer of their shares. This so-called “forced exit” claim can be brought against the company and/or the other shareholders. If grant- ed, the shares will be transferred against payment of a court-determined amount. Effective 1 January 2025, the statutory framework governing compulsory share transfers has been significantly amended. Among other changes, such proceedings now fall under the exclusive jurisdiction of the Enterprise Chamber and may be combined with inquiry proceedings. Claims for Damages are attributed to the company. Compulsory Transfer of Shares If shareholders incur damages as a result of actions of the company (eg, due to misleading disclosures), they may be able to bring claims seeking compensation for such damages. Dutch law provides for a statutory class action regime, allowing for collective redress in investor claims, among others. 10.2 Remedies Against the Directors In the absence of derivative action mechanics (see 10.3 Derivative Actions ), Dutch law provides limited legal remedies against the company’s directors spe- cifically. Shareholders can challenge board resolutions and, in certain cases, may be able to pursue director liability claims against directors. An example of the latter would be if the shareholder relied on mislead - ing financial disclosures or misleading statements when investing in the company. Director conduct can
9. Insolvency 9.1 Rights of Shareholders If the Company Is Insolvent In principle, the bankruptcy of the company in and of itself does not impact shareholders’ rights. For instance, shareholders’ meetings can still be held, shareholders can still attend such meetings and vote on proposals tabled, and the general meeting retains its powers. In bankruptcy, the company’s estate is managed by a court-appointed trustee, which often means that shareholders will have or be given less opportunity to exercise their rights. Shareholders can bring a number of legal remedies against the company. The principal remedies are set out below. Inquiry Proceedings One or more shareholders (jointly) meeting certain capital thresholds can bring so-called “inquiry pro- ceedings”, which are corporate governance dispute resolution proceedings brought before the Enterprise Chamber of the Amsterdam Court of Appeal, a spe- cialised business court. In inquiry proceedings, the Enterprise Chamber can order an inquiry into the pol- icy and affairs of the company, and order far-reaching temporary injunctive relief by means of immediate measures. Common immediate measures include the appointment of independent directors, the suspension of directors, the transfer of shares to a trustee and the suspension of certain resolutions. If mismanagement is ultimately established by the Enterprise Chamber following such inquiry, definitive measures can be ordered to remedy such mismanagement. Injunctive Relief Any shareholder can bring summary proceedings against the company seeking injunctive relief, pro- vided there is an urgent interest in such relief being 10. Shareholders’ Remedies 10.1 Remedies Against the Company
203 CHAMBERS.COM
Powered by FlippingBook