Witness evidence can be given orally. 9.1 Can claims be brought by residents from other jurisdictions? Amsterdam Court of Appeal 15 July 2009, JIN 2009, 620 parties as being representative. Private International Law, Maklu, Apeldoorn, 2011. employed in Vedior (grounds 4.20 and 4.21). It is not yet clear whether representative collective actions can be brought in arbitration proceedings. Once the statutory amendments following the transposition of the CRD come into effect, certain organisations based outside the Netherlands may now also bring a claim for damages. On the grounds of this article, 'other damage than financial loss' can be compensated. Part of this package is a draft directive on representative actions for the protection of the collective interests of consumers (COM (2018) 184 final). POPULAR ARTICLES ON: Litigation, Mediation & Arbitration from Netherlands. The opt out period is determined by In that case, petitioners can only appeal to the Supreme Court as a group. 5 The Lugano Convention is also called the Parallel Approximately 50 class-action Both a Collective Action and a WCAM procedure can be initiated by representative organisations such as consumer organisations or interest groups. excluded from the US settlement, and it would be very difficult for the Court, but is at least three months. Internationaal privaatrecht Procedural changes to enhance the efficiency and effectiveness of the proceedings. meticulously. Therefore, a full case can take three to five years. The district court set the same amount of damages for each class member regardless of individual circumstance, such as the price or type of the vehicle they bought, showing the courts willingness to award abstract damages. 3.4 Do the courts commonly select test or model cases and try all issues of law and fact in those cases, or do they determine generic or preliminary issues of law or fact, or are both approaches available? This might, however, change in the future, as the Dutch Ministry of Justice and Security has commissioned research into the potential establishment of a revolving litigation fund. Article provided by INPLP member: Bob Cordemeyer and Marc Morrin (Cordemeyer & Slager, The Netherlands), Discover more aboutINPLP, theINPLP-Membersand theGDPR-FINE database, Dr. Tobias Hllwarth(Managing Director INPLP). This procedure has been successfully used in several international matters, including global settlements in securities cases. Lugano Convention5, depending on whether it can be said that the person "to be sued" is domiciled in a Member However, there was a remarkable decision on this issue given by the Amsterdam Court of Appeal in, There is no rule preventing alternative funding of litigation other than the bar rules that forbid lawyers from making contingent fee arrangements. The scope of jurisdictions from which the allegedly represented security holders would originate is unprecedented in Dutch collective actions. procedural safeguards of these persons were violated because they 4 Explanatory Memorandum (Memorie van 6.5.7). 51 (Converium) rendering final its The injured parties have an opt-out right during the opt-out period set by the Court, usuallay 3 to 6 months. Developments and Trends in Collective Actions. settlement was somewhat better for the shareholders than the Netherlands. TikToks way of advertising should ensure that the (often young) users of TikTok do not realise that they are looking at advertisements. They are funded in whole or in part by taxation. We need this to enable us to match you with other users from the same organisation. However, a significant number of Collective Actions are brought before the Amsterdam District Court and there appears to be some degree of specialisation among the judges in that court. Regulation 2000 was applied in it was sufficiently established that according to such standards, F. Kroes, comment to Dexia decision, Jurisprudentie domiciled in the Netherlands and one of the parties to the In light of the existing Dutch infrastructure for class actions (branches of international case funders and U.S. claimant firms), the liberal attitude of the Dutch courts (with the possibility to conduct proceedings in English) and the balanced new class action regime with the lighter (Dexia). In recent years, the courts have given increasing weight to the Claim Code 2011 when assessing whether a claim vehicle can be deemed to safeguard the interests it represents. A person can, under circumstances, be impaired in another way if a fundamental right is violated. It held that insofar as the of the damage, the ease and speed with which the compensation can The most important provisions are Articles 843a to 843b of the Code of Civil Procedure. Under the WAMCA it is possible to claim monetary compensation in collective actions. Obviously, if a group is excluded from the settlement, But what is the actual chance of success? However, parties are under a general obligation to state their case truthfully. Specialist advice should be sought M.F. De Brauw Blackstone that the Court very much looked at the articles of association of In Shell and Converium, the majority guide to the subject matter. The requirement of similarity means that the interests to be protected are suitable to be bundled together in order to obtain efficient and effective legal protection for the benefit of the potential claimants, as compared to individual legal actions. The same applies if a collective settlement is proposed in a Collective Action. This is the case if: the majority of the potential claimants are domiciled in the Netherlands; the defendant is domiciled in the Netherlands and additional circumstances show a sufficiently close link to the Dutch jurisdiction; or the event from which the damage resulted took place in the Netherlands. Under the WAMCA, a representative entity must register the writ bringing the collective action with a central register. representativity can be derived from several factual circumstances international instruments, the shareholders are to be regarded as negotiations in which all parties have made concessions. 17 January 2012, JOR 2012, 51 In a Collective Action, the court may appoint an expert either upon the request of one of the parties or on its own motion, pursuant to article 194 DCCP. This is usually because: Litigation is relatively less expensive in the Netherlands. 4.1 Are there any time limits on bringing or issuing court proceedings? Furthermore, in its 2006 ruling on the Collective Action in the Vie dOr case, the Supreme Court held that representative organisations can also besides procedural costs recover extrajudicial costs for determining the liability and damages of the defendant pursuant to article 6:96 (2) (b) DCC. are both Swiss), and where only a limited number of the potential 6.3 What are the costs consequences, if any, where a member of the group/class discontinues their claim before the conclusion of the group/class action? Typically, collective actions under the Old Law seek declaratory relief. The final judgment and most interim judgments in a Collective Action can be appealed to a court of appeal, which can review the case in its entirety. fashion somewhat similar to US class action settlements. All rights reserved. the formal criteria of this provision were met, the provision would binding declaration by the Court. Representative collective actions and class settlements (proceedings) are permitted in all areas of civil law. 4. What are the key limitation periods for class/collective actions? It is possible to create a legal entity solely to qualify for the procedure under the WCAM. claimants were domiciled in the Netherlands.3. 3.2 How are the proceedings managed, e.g., are they dealt with by specialist courts/judges? The reference in this Enforcement of Foreign Judgments Comparative Guide for the jurisdiction of UK, check out our comparative guides section to compare across multiple countries, No one who does business under a contract with another person wants to end up in a dispute with that other person. patients). of the Brussels I Regulation and the Lugano Convention. each petitioner is representative for all persons domiciled in the Netherlands and one or more petitioners should be basically all interested persons, being contractual counterparties Project Organisation: Sourcing International. The Court found that The empty string is the special case where the sequence has length zero, so there are no symbols in the string. In general, an appeal must be lodged within three months of the date of the first instance judgment. and the VEB as being representative. A claim for compensation or to pay a penalty must be made within five years of the day following that on which the claimant becomes aware of the damages and the identity of the liable party (article 3:310 DCC). Represented the trustees of a Dutch retail bank, DSB Bank, in a EUR5.7 billion bankruptcy and represented them in a class settlement concerning a class of 570,000 members offering compensation for the miss-selling of financial products. Regulation and are thus objects of recognition in all EU Member Enforcement of Foreign Judgments Comparative Guide, Dispute Resolution Provisions Within A Contract, Sovereign State Immunity From Anti-suit Injunctions. Vereniging Corporate Litigation 2005-2006, p. 169. Consequently, there is now a precedent for compensation higher than usual for breaches of stricter requirements of the GDPR. The claim is funded by a so-called 'third-party litigation funder': Innsworth Litigation Funding, owned and financed by hedge fund Elliot. After the appointment of an exclusive representative, the court will set a term for both parties to come to an agreement. 3.11 How long does it normally take to get to trial? However, the Dutch Supreme Court has determined that the court may only apply this discretion in exceptional circumstances (Dutch Supreme Court 3 November 1995, NJ 1998, 380 and Dutch Supreme Court 28 April 2000, ECLI:NL:PHR:2000:AA5635). supporters, such as shareholder organisations in relevant other notice was published in 44 different newspapers worldwide. Shell entities involved was Dutch and the other was British. It can only be appealed by the parties to the settlement agreement if the settlement agreement is not approved (and only on matters of law). 1 Since the US Supreme Court's decision in Morrison v. Dutch law allows associations (verenigingen) and foundations (stichtingen) to bring a so-called collective action on behalf of other persons, provided they can represent the interests Notification Regulation 2000 and the Notification Regulation 2008, Be sufficiently representative to obtain standing. In the almost 200-page summons against TikTok, the companys business model is thoroughly explained. Chr. These types of bundled claims are often used to circumvent the current restrictions that apply to representative collective actions. 20 The WCAM provides that notification, both at the stage of The timetable to negotiate a class settlement primarily depends on the parties, the complexity of the matter and the pressure to aim for a settlement. international cases. In education, a curriculum (/ k r k j l m /; PL: curricula / k r k j l / or curriculums) is broadly defined as the totality of student experiences that occur in the educational process. One or more associations or foundations that, pursuant to their articles of association, promote the interests and are representative of the potential claimants, can initiate a Collective Action or a WCAM procedure. the US settlement amount. Claims may be brought on behalf of persons who are not Dutch residents. 105-134. The Supreme Court disagreed with this process and ruled that a claimant must prove that sufficiently serious damage occurred for each individual member of the represented class. Representing large charitable organisations in a litigation concerning the allocation of an inheritance of approximately EUR26 million. However, a representative collective action must be an efficient and effective way to safeguard the interests of the class. 3.12 What appeal options are available, including whether an appeal can be taken immediately of a decision certifying a class or entering a group litigation order? (Converium). The court added that the claims can then be dealt with in single proceedings without taking into account the specific circumstances of the individual class members. Protect against the infringement of specific consumers' rights. Common interest issues, such as general environmental concerns or the representation of women in a political party. The Court may provide otherwise at the stage of LUSAIL, Qatar (AP) Grant Wahl, one of the most well-known soccer writers in the United States, died early Saturday while covering the World Cup match between Argentina and the Netherlands. On 11 April 2018, the European Commission proposed its "New Deal for Consumers", a package of consumer protection measures. This class action is also backed by an external litigation funder, IVO Capital. There is one exception regarding statements of the parties with a view to delivering evidence of their own statements and these can only be considered as corroborative evidence. Explanatory Memorandum to the proposed amendments to the WCAM, show to its substance (article 36), unless it is manifestly contrary to The Amsterdam Court of Appeal has exclusive jurisdiction to decide on WCAM requests. regarding the interests of the persons for whose benefit the corporate settlement, in: Geschriften vanwege de Vereniging Are there rules to restrict forum shopping? 34 In Converium, just as in Shell, the However, it held that despite this In principle, governed by Council Regulation (EC) No. group of foreign claimants.13 However, the government Acting as defence counsel to Trafigura in its defence strategy against pending and upcoming class action litigation by several Dutch and foreign mass claim vehicles concerning the Probo Koala in connection with the alleged exposure to the alleged disposal of chemical waste in Ivory Coast. In a Collective Action, case management hearings are often used (sometimes upon the request of one of the parties) to discuss the course of the proceedings. In those cases, a request under Article 843a can only be denied for compelling reasons. itself does not make a settlement unreasonable (ground 6.6). Also, a court may order the hearing of further witnesses or experts in the course of proceedings. This could lead to an increase in collective actions. petitioners, as well as for public notification, through shareholders affected by the alleged misrepresentations by Shell. Must the organisation be approved by the state? In principle, all documents can be presented as evidence and the court decides the value of the evidence presented. alleged victims), the Court will assume jurisdiction. Case law indicates whether the adverse consequences are or are not obvious, but it provides no further on how to substantiate the requirement. For Collective Actions, see the answer to question 1.3. jurisdiction and the recognition and enforcement of judgments in 11 See the minutes of the court session in This Civil court cases are decided by professional judges only. must be effected pursuant to applicable treaties, most notably the together to avoid the risk of irreconcilable judgments resulting The Supreme Court has jurisdiction to hear appeals against judgments of the courts of appeal and in exceptional cases against judgments of the district courts. Netherlands that it was "expedient to hear and determine them There are several alternative methods of dispute resolution, such as mediation or arbitration. Certain procedural issues in the early stages of the TikTok case could give more insight in the relative novel WAMCA mechanism, such as the appointment of an exclusive representative among the interest organisations. Interestingly, settlements involving injured parties from outside The Netherlands can also be declared binding by the Court. interested persons, their activities in the media, and their Toelichting) to WCAM, Parliamentary Proceedings II However, an opt-in mechanism generally applies to international claimants (see the answer to question 1.3) and there is a scope rule that requires a sufficient link with the Dutch jurisdiction for the action in general (not for a particular claimant; see the answer to question 9.1). record. directly by postal services on persons residing in another Member not connected to the Netherlands, but a minority of the parties issue an opt out statement in time. Court-approved class settlements are governed by the WCAM, which has been implemented in Articles 7:907 to 7:910 of the Civil Code and Articles 1013 to 1018a of the Code of Civil Procedure (. the relevant period these were the persons for whose Remedies 6. The court will only decide on compensation if the parties fail to reach an agreement during the representative collective action. or commercial matter". It is too early to tell what the effects of these intended amendments will be. Funding 8. This is usually the district court in the place of the defendant's domicile. is the law of a party to the European Convention on Information on The courts decision regarding the appointment of an exclusive representative, the definition of the class and the scope of the claim must be notified to all members of the class. countries based on the Brussels I Regulation. For example, in what circumstances will a class action be certified or a group litigation order made? In large international cases, since there will domiciled outside the Netherlands, but within the EU, Switzerland, From June 2023 onwards, this will need to be within the boundaries set by the CRD. The representative entity must: Have sufficient resources to conduct the proceedings. the fee was not unreasonable (final decision, grounds 6.5.1 through The third party must demonstrate that it has an interest that could be adversely affected by the decision in the main proceedings. In Converium, the Stichting (foundation) representing the interests of the In Converium, the settlement agreement was concluded, provided that each of them is involved (see Shell, ground 6.3). writ served on the opposing party. Latest news from around the globe, including the nuclear arms race, migration, North Korea, Brexit and more. in relevant foreign newspapers, as is demonstrated in Representative collective actions are governed by Articles 3:305a to 3:305d of the Civil Code. How are the costs common to all claims involved in the action (common costs) and the costs attributable to each individual claim (individual costs) allocated? Under the WCAM, the Amsterdam Court of Appeal will not declare a settlement agreement binding if the group of persons entitled to compensation is too small (article 7:907 (3) (g) DCC). Legal aid is not granted to representative bodies and, therefore, is not directly relevant to Collective Actions or a WCAM procedure. step further, by not requiring that any of the potentially liable The filing of a claim under a Collective Action will interrupt the limitation period (article 3:316 DCC). It is expected that the proposed EU law on representative actions will not substantially change the Dutch legislation. A representative entity will also not have standing if it did not try to engage with the defendant before bringing its action. Links to external websites are provided as a convenience and should not be construed as an endorsement by the U.S. Department of State of the views or products contained therein. "Court") declared the international 3. 2020/1828), collective actions in the Netherlands are not restricted to consumer cases. These costs rarely cover the actual costs and lawyers' fees incurred by the other party. in judging what is a reasonable fee, US standards of what is common by the company in a certain period. associations. Parties are obliged to represent all relevant facts truthfully and in full. 6.1 Can the successful party recover: (a) court fees or other incidental expenses; and/or (b) their own legal costs of bringing the proceedings, from the losing party? Any person can appear as a witness. The draft directive repeals Directive 2009/22/EC on injunctions for the protection of consumers' interests and introduces far-reaching possibilities for consumers to start redress actions against traders that have breached specified EU consumer protection legislation. Apart from as its sole purpose to represent the interests of all non-US At the start of a Collective Action, the court appoints an exclusive representative and determines the precise scope of the collective claim and whose interests are represented in the action. However, one can imagine international cases in which the A Collective Action and WCAM procedure can be initiated in all areas of civil law. Both cases concern financial loss In a Collective Action, any form of relief may be sought, provided that the interests are sufficiently similar. In addition, the Foundation Mass Damage and Consumer (hereafter: the Foundation) has initiated a class action against the Chinese technology company TikTok. A major problem in demonstrating damages in the event of a violation of a fundamental right is (the burden of) proof. test, among other things, the representativity of the foundation(s) paragraph on aspects of private international law in the The British Raj (/ r d /; from Hindi rj: kingdom, realm, state, or empire) was the rule of the British Crown on the Indian subcontinent; it is also called Crown rule in India, or Direct rule in India, and lasted from 1858 to 1947. associations representing one or more groups of persons for whose Westbroek represented Zurich Financial Services Ltd., one of the connected" to the claims of the shareholders domiciled in the the issues that were covered by the settlement agreement. These can be ad hoc organisations. A Q&A guide to class/collective actions in The Netherlands. All remedies are available in these alternative mechanisms. Netherlands. 7.1 Is public funding, e.g., legal aid, available? Explanatory Memorandum to the amendments to the WCAM, p. ICLG.com > Despite being at the forefront of collective action developments in Europe, it was not possible to have damages awarded in a collective action in the Netherlands until recently. This changed with the introduction of the Settlement of Large-scale Losses or Damage (Class Actions) Act (WAMCA), which entered into force on 1 January 2020. internationalrelevance of Dutch law on class action settlements has proceedings initiated by a petition to the court rather than by a clause in the settlement agreement did not make it unreasonable in is not reasonable, having regard, among other things, to the extent A substantive hearing of the collective action will only take place after the court has decided that the following all apply: The representative entity meets the standing requirements of Article 3:305a, Civil Code (. A recent case in the TCC has provided comment on the perennial issues of delay analysis methodologies, causation and concurrent delay. to the fact that the alleged misleading statements had not given would result mostly in technical improvements. This instrument can also be applied in representative collective actions. may invoke that circumstance if Dexia were to enforce the binding claim in court. Party against whom the legal action is directed is domiciled in the Netherlands and additional circumstances suggest a sufficient relationship with the Netherlands. A decision that the representative entity has standing can only be appealed by the defendant if the court grants the right to do so. Representative collective actions must be initiated at one of the 11 district courts in the Netherlands. circulated through two different newswires. multiple grounds that the compensation granted was not Furthermore, following article 1018c (5) DCCP, the claimant in a Collective Action must establish that: (a) certain requirements with regard to governance, representativeness, connection to the Dutch legal order and the mandatory consultation attempt, are met; (b) bringing a Collective Action is more efficient and effective than instituting individual proceedings; and (c) its claim is not manifestly unfounded. TPC filed the class action claim under the procedure stipulated in the Dutch Act on Mass Damages Settlement in Class Actions (Wet Afwikkeling Massaschade in Collectieve Actie or WAMCA). person decides to opt out in writing within a certain time period The courts are generally willing to work out a feasible timetable for the proceedings with the parties. 33 In our view, this would not be a problem. These may be foundations or associations with full legal capacity that represent the interests of the class members and the party or parties that will pay the damages. Response Draft Legislative Proposal Implementing Directive (EU) 2019/2121 As Regards Cross-Border Conversions, Mergers And Divisions, International Arbitration Comparative Guide, International Litigation And Arbitration In The Netherlands, Brexit Blog 13: Recognition And Enforcement Of UK Judgments In The Netherlands: The Dutch Government Gives Some Guidance, Global Offshore Fintech Focus on Crypto: Laws, Regulations and Trends [REPLAY], A Comparative Approach to Professional Secrecy and Attorney-Client Privilege in Criminal Proceedings [REPLAY], Mondaq Ltd 1994 - 2022. Airbus hit with $339 million class action suit in the Netherlands. In Its inclusion The greatest risk for the plaintiff in these cases lies in determining the damage. The Anti-trust Damages Directive contains slightly different provisions, implemented in Article 6:193s of the Civil Code. publishing a notice in 21 different newspapers worldwide. A request under Article 843a should be denied if the information is subject to legal privilege. them and they still have standing in court, without the need to (Ahold). The criteria on the basis of the WCAM [see Endnote 8]. the specific circumstances of that case. Participants in a WCAM procedure are free to make arrangements on how to share the costs of litigation, and the same applies if a member discontinues his claim. to prove that all requirements under the Service Convention have 5.3 Are punitive damages recoverable? These cases are brought in various areas of law (securities, privacy, competition, consumer, employment, environmental and ESG more broadly, pension claims, etc.). Representative collective actions and class settlements (proceedings) are permitted in all areas of civil law. acceptable if the interested persons have been properly notified at considerable lawyers' fee of 20%. White & Case LLP; Economic Yes, see the answer to question 4.1. Defending a Luxemburg airline in several proceedings against an accumulated number of cartel damages claims submitted by several claim vehicles arising from the alleged air cargo cartel. out.4. Dexia held that a settlement agreement is the outcome of fulfilled. Relief may include an award for damages, a declaration on liability, rescission or specific performance of a contract and injunctive relief. after the binding declaration has been issued. Germany, NIPR 2012, p. 176. The mis-selling of financial products by banks or insurance companies. In a WCAM procedure, the court may appoint an expert to report on a subject relevant to the WCAM request, pursuant to article 1016 DCCP. 2.3 In what circumstances may representative actions be brought? There are no special considerations for privilege under the law in relation to representative collective actions or class settlement proceedings. In Shell, one of the The Council issued its general approach on 28 November 2019. principle, on the ground that a Dutch foundation or association can However, it is possible for multiple damaged parties to assign their claims to another party, pursuant to article 3:94 DCC. Also here, only a minority of the shareholders who regular mail. jurisdiction of the Court, the fairness of the WCAM procedure (and provisional) decision in Converium takes the matter a information. The cookie settings on this website are set to "allow cookies" to give you the best browsing experience possible. be required, namely one or more interested persons should be 8.3 Can criminal proceedings be used as a means of pursuing civil damages claims on behalf of a group or class? declared an international collective settlement binding in a case are bound by it. This is an area of recent attention and revisions to a soft-law instrument known as the claim code have been made. However, in 2020, the law was changed, with the introduction of the Resolution of Mass Damage in Collective Action Act (the WAMCA), to no longer exclude the possibility of awarding monetary damages collectively. the government is fully aware of the international significance of collectieve actie en de Wcam, Geschriften vanwege de Vereniging That all damage suffered must be compensated is clearly stipulated in the GDPR. If so, how are they notified? in a damages action, the class members individually and jointly have a sufficiently large financial interest. Then the door will be wide open for class actions against 'big tech' and unlawful processing of personal data. At the request of a party, and if the court allows, a claim for documents can be decided before continuation on the merits. 16. The WAMCA will be amended following the transposition of the CRD, which is generally supposed to promote group actions. This development has now expanded into the Netherlands with (i) a class action against Facebook for breaches of the GDPR, specifically by sharing personal data with external developers and other partners; (ii) a class action against software developer Salesforce regarding the processing and sale of personal data for online marketing; and (iii) a class action against TikTok for multiple GDPR violations in particular relating to the collection and processing of the personal data of children, including inter alia failing to provide sufficient information about and failing to obtain parental consent for the processing of the childrens personal data. Dennis Horeman and Machteld de Monchy authored two chapters in the International Comparative Legal Guide - Class and Group Actions 2023. Both approaches are available; preliminary issues will, in most cases, relate to matters of law. Considered that a 20% fee for the principal counsel was not unreasonable. above-average thoroughness. There are no statutory compensation schemes specifically available for small claims. There have been two WCAM requests in the field of personal injury (DES and DES II) and seven WCAM requests in the field of securities and financial services (Dexia, Vie dOr, Vedior, Shell, Converium, DSB Bank and Ageas). seems to have retreated from the position that foreign interested A pre-Hispanic artifact recovered by Mexico from the Netherlands. It is not summarily apparent that the collective action is defective when the writ is served. If so, are there any restrictions? determining the amount of compensation (see the Shell 14 See Memorandum of Reply, Parliamentary Proceedings the Service Convention and similar instruments.11 The Supreme Court proceedings do not offer a full review. fashion in a report commissioned by the Dutch Ministry of Het Europees Parlement en de Raad van de Europese Unie bereikten recentelijk een politiek akkoord over de ontwerprichtlijn betreffende maatregelen voor een hoog gezamenlijk niveau van cyberbeveiliging (de Ontwerp NIS 2 Richtlijn). As a result of that system, the costs award is usually a small percentage compared to the actual costs incurred by the winning party. The court is not bound by the expert opinion or testimony. section 1 of the Brussels I Regulation and the Lugano Convention. 2 At least for the time being. Parties may also present expert evidence on their own motion. that facilitates the implementation of collective settlements. In Dexia, grounds 5.2 through 5.4, the Court Some exceptions apply, such as statutory limitations of liability in transport matters. 9 Currently, an amendment to the WCAM is pending. It will also take into account where the settlement agreement has been negotiated and both sides have made concessions. 1.5 Is there a minimum threshold/number of claims that can be managed under the procedure? The credo that TikTok uses towards advertisers, "make TikToks, not ads", roughly describes for the company's advertising method. that a certain group was wrongly included in or excluded from the litigation stage, where the aim is to obtain a binding declaration, This is to prevent abuse by third-party funders. 40 The WCAM, in force since 2005, provides an opt out mechanism case, the binding declaration can be invoked against this group and "VEB"). Indeed, most contracting parties are able to transact. sufficiently representative for a sufficiently large group of these one or more Dutch foundations or associations that, under their constituent documents, represent the interests of the class of persons intended to be covered by the settlement agreement. As a general rule, damage is only compensated if there is sufficient connection between the loss and the act that gave rise to liability, to find that the loss can be attributed to the tortfeasor (article 6:98 DCC). In this update, we will look at class actions against several tech businesses, taking the class action social media network TikTok as an example. The key effect of the current regime is that the Netherlands as a jurisdiction is favoured by claimants bringing collective actions, particularly in the field of private enforcement follow-on actions. agreement then binds all persons covered by its terms, unless such By Tessa Solomon. According to the Supreme Court, interests are sufficiently similar if they can be bundled so that a collective action is an efficient and effective way of safeguarding them. In awarding procedural costs, Dutch courts use what is called a liquidation rate with fixed fees, dependent only on the interest at stake, the complexity of the litigation and the number of procedural actions that were required from the party incurring the costs. interested parties, irrespective of their domicile. held as a separate and autonomous ground for jurisdiction that the Find current and upcoming funding opportunities for your research, as well as research partners, jobs and fellowships. However, parties are free to offer counter-evidence against conclusive evidence (unless this possibility is excluded by law). In practice, claimant organisations frequently agree on a fee in a contract between them and the claimants. This approach to the rules on standing also means that if there are two or more competing entities representing the same interests, each can bring its own collective action. The Netherlands Authority for Consumers & Markets can also initiate WCAM proceedings by taking a position similar to that of a representative organisation (article 2.6 (2) Consumer Protection Enforcement Act). relevant, including those circumstances which occurred after the rise to litigation outside the US, which suggests that it is If the court can determine preliminary issues, do such issues relate only to matters of law or can they relate to issues of fact as well, and if there is trial by jury, by whom are preliminary issues decided? and association(s) representing the interested persons, as well as also each party's perceived interest in having the matter settlement agreement differentiates between parties residing in There is no specific limitation on Dutch proceedings being used for cross-border actions generally, provided of course that there is jurisdiction. Multiple defendants can also instruct the same lawyers or experts. The Dutch Act on the Collective Settlement of Mass Claims (the WCAM ) facilitates the implementation of collective settlements through a binding declaration by the Amsterdam Court of Appeal. The WCAM is incorporated in articles 7:9077:910 DCC and articles 10131018 of the Dutch Code of Civil Procedure (the DCCP ). however, it is to be expected that the parties will be able to On that basis, the Court first assumed jurisdiction with regard to settlement agreement at all (in that case, the group of haemophilia Actual costs can be awarded in exceptional cases, and are specifically provided for in cases concerning intellectual property rights. In a WCAM procedure, the persons to whom the settlement applies are determined in the settlement agreement and reviewed by the court. The The Act on Collective Damages in Class Actions (WAMCA), which entered into force on 1 January 2020, enhanced the possibilities for class actions in the Netherlands. 17/11/2022 - 18/11/2022 Amsterdam, The Netherlands - Grand Hotel Krasnapolsky Load more class actions news or search news using your own keywords. There is no jury system in the Netherlands. jurisdiction on the basis of the "forum non Leijten, De betekenis van de Wet collectieve The court can also order the examination of witnesses on its own initiative. 2022 Thomson Reuters. judgment against the defendant. Users may set up custom email newsletters and RSS feeds or search among thousands of preset news sections. In Converium, both entities The court may, at any time, request parties to further substantiate their statements (articles 2122 DCCP). A. Halfmeijer, Recognition of a WCAM settlement in Germany, The rules of the Dutch Bar Association do not allow Dutch lawyers to work on the basis of contingency fees that depend entirely or substantially on the outcome of the case. liability case, the alleged victims of a defective product) are 37 In Shell, the Court implies that its decision should In the Netherlands, in contrast, in a recent judgement under the pre-WAMCA regime against Volkswagen in the dieselgate litigation, the district court of Amsterdam handed down a declaratory judgement in which Volkswagen was declared liable to each purchaser of a Volkswagen diesel vehicle. The acting association or foundation may come to a collective settlement with the defendant. In the WCAM petition, all Also, certain limitations may be found in the general law of contracts, e.g. However, The content of this article is intended to provide a general With the Dutch Collective Damages in Class Actions Act (Dutch acronym WAMCA) nearing its second anniversary, there seems to be a trend of bringing claims for privacy breaches through class actions. declaration against them and that, on the other hand, these persons The Netherlands does not have a trial system similar to US and UK litigation. It is assessed based on various factors, including: The number of persons associated with the representative organisation. States that monetary damages cannot be claimed. Free, unlimited access to more than half a million articles (one-article limit removed) from the diverse perspectives of 5,000 leading law, accountancy and advisory firms, Articles tailored to your interests and optional alerts about important changes, Receive priority invitations to relevant webinars and events. Convention, as it creates a regime of international jurisdiction In general, the losing party is responsible for some of the litigation costs. These must cover the interests of the group that the entity is promoting, otherwise the entity will not have standing. Africa. It is yet to be seen how the courts will deal with the principles of the Claim Code 2019. These matters are particularly complex because this civil follow-on litigation is brought by claim vehicles on behalf of purchasers from multiple jurisdictions against a number of truck manufacturers, involving the application of multiple legal systems, which also requires a strong collaboration with foreign counsel in other jurisdictions. Other Mechanisms In class settlement proceedings, a "damage scheduling" approach is usually applied, under which compensation is awarded to claimants based on the characteristics of the group that the particular individual claimant is a member of rather than on the basis of their personal characteristics. 13 Finally, the Court assumed jurisdiction with regard to the In 2014, the Dutch Supreme Court held that a representative association or foundation can, for the benefit of the persons it represents, interrupt the statute of limitations by sending this pre-litigation letter to potential defendants. of Dexia, were known and the large majority were domiciled in the 19 See for an analysis of the recognition issues, Van Lith F. Kroes, Het representativiteitsvereiste voor de better than the compensation awarded in the settlement, also taking 'The Grizzlie Truth' explores abrupt move by Vancouver's NBA team to Memphis. "civil and commercial matter" as referred to in article 1 Israel Cando | TFC News Vancouver Dec 09 08:31 PM. In addition, an entity only has standing if the legal claim has a sufficiently close relationship with the Netherlands. Ondernemingsrecht 2005-15, p. 505. Where legally possible, the court can determine that damages are awarded depending on whether a claimant qualifies to be part of a certain category of claimants (damages scheduling). A party which has a legitimate interest may request from another party a copy of certain documents with respect to a legal relationship to which it or a predecessor is a party (article 843a DCCP). In the context of the WCAM, although there are no precise rules on dividing the damages, the court will analyse whether the proposed recovery is reasonable for all group members. both stages, and thus have had an opportunity to object and to opt Please see under Claim Bundling in the answer to question 1.1. non-US shareholders differed from the legal position of the non-US In a class-action lawsuit, customers say they were duped by Tesla's $15,000 Full Self-Driving feature. The Legal Aid Board (. De Brauw Blackstone Westbroek N.V. Stricter requirements for the standing of a claim vehicle and the scope of collective actions. of shareholders in different jurisdictions, as the shareholders While the procedure with the ECJ is expected to last for 2 years, it is evident that the answers will greatly influence claims for damages under the GDPR going forward. The Privacy Collective has started a class action on behalf of victims in the Netherlands against Oracle and Salesforce, two data brokers. ICLG - Class and Group Actions Laws and Regulations - insurance policy holders as a consequence of the bankruptcy of a Other ways of claim bundling include the use of a mandate agreement (article 7:414 DCC) or power of attorney (article 3:60 DCC). Will the Court test Under the WAMCA, the court-appointed exclusive representative will take the lead role in the proceedings (a system bearing resemblance to the US lead plaintiff system - for more information, see our update on the first anniversary of the WAMCA). In addition, the motion cannot not be contrary to due process. legal scholar, professor Halfmeier, argues that because of There are no strict rules on this matter under Dutch law. Converium, the notification process was similar to the one declared the settlement agreements binding. Individuals in need of professional legal assistance, but unable to fully or partly bear the costs, are entitled to legal aid compensation pursuant to the Dutch Legal Aid Act. Pursuant to Article 82 GDPR, all material and non-material damage must be compensated. 36 Whether the WCAM procedure will prove to be helpful in However, the recovery of legal fees is usually a very limited amount in practice. Convention takes as a starting point that service of documents will WCAM. 8 Notification of the interested persons is crucial both at the The Event or events to which the legal action relates took place in the Netherlands. the Court has rendered six final decisions within the framework of 2.2 Who is permitted to bring such claims, e.g., public authorities, state-appointed ombudsmen or consumer associations? The judgment in appeal can subsequently be appealed to the Supreme Court, in which case the review is more limited. If their circumstances differ, damage scheduling is considered appropriate. uncertain that an award in a non-US court can be obtained that is 1.3 Does the procedure provide for the management of claims by means of class action (where the determination of one claim determines the claims of the class), or by means of a group action where related claims are managed together, but the decision in one claim does not automatically create a binding precedent for the others in the group, or by some other process? "Service Convention"). The Privacy 8.2 Can consumers claims be brought by a professional commercial claimant which purchases the rights to individual claims in return for a share of the proceeds of the action? The claim against Facebook has been brought under the pre-WAMCA regime, which does not allow the court to directly award monetary damages. Medical monitoring costs can be recovered in principle, but only if the specific circumstances of the case warrant such recovery. 19. (2011), pp. In particular in An overview of class and collective action procedure in the Netherlands, including commencement of proceedings, procedural rules, damages and costs, and settlement. Additionally, the transposition of the CRD into Dutch law will increase the opportunities for foreign organisations to file Collective Actions in the Netherlands. 90. The first aspect discussed here is the reasonableness of Court proceedings pursuant to the WCAM provide representative organisations, jointly with the party paying the compensation, the possibility of requesting the court to declare a settlement binding on all parties entitled to compensation (the beneficiaries). I.N. The extent issues in both Shell and Converium is the This scholars on the basis that it violated Regulation 2008 takes as a starting point that service of documents 30 The concept of "reasonableness" also refers to the In the Netherlands, the general rule applies that the losing party pays the court costs and legal fees (article 237 (1) DCCP). The WAMCA stipulates that neither the directors of the representative entity nor their successors are allowed to make a profit by bringing a collective action. There are no specific legislative provisions applicable in the Netherlands to third-party litigation funding, except that the law specifies that control over the collective claim must be with the representative organisation to a sufficient extent (article 3:305a (2.c) DCC). verzoekschriftprocedure, that is: As the third anniversary of the Dutch Collective Damages in Class Actions Act (Dutch acronym WAMCA) draws near, we look back to identify notable trends in Dutch class actions. that the strength of the claim in court is taken into account in In practice, the defendants sometimes contribute in differing ways to the compensation that is provided to one or various groups of beneficiaries. countries and institutional investors. The procedural system laid down in the Civil Code and the Code of Civil Procedure applies to all representative collective actions and class settlement proceedings. Insofar as foreign, unknown potential claimants are concerned, the court may order announcements in relevant foreign newspapers, and by other means, as demonstrated in the Shell and Converium cases. Multiple defendants can co-operate in their defence. foundation or association representing the interested persons is a The claims against Salesforce and TikTok have been brought under the WAMCA system. A.R.J. In what way should the damage from the unlawful sharing/processing of personal data be estimated? (Vie d'Or). An appeal to the Supreme Court adds another year. Parties can request a court to order the examination of witnesses before or at any stage during the proceedings. 2022Thomson Reuters. M.V. INPLP is a not-for-profit international network of qualified professionals providing expert counsel on legal and compliance issues relating to data privacy and associated matters. This makes it more difficult for the court to reject a claim under Article 843a in competition law related cases. provides parties to a settlement agreement with the possibility of jointly requesting the Court to declare the settlement agreement different countries, on the basis that their claims have a There is no US-type pre-trial discovery or UK-type disclosure process in the Netherlands. Similar questions on how to determine damages are raised abroad. position of a UK shareholder vis--vis the UK Shell There are no specialist courts to hear Collective Actions. The court may extend the limitation period on the grounds of reasonableness and fairness (article 6:2 DCC). However, privileged data or documents are protected against disclosure, unless privilege has been waived. (the "Notification Regulation Class/Group Actions 2. De Brauw Blackstone Westbroek also The Court found that this was not unreasonable, as the USD is The Dutch legal system currently has two different collective redress mechanisms: A class/collective settlement mechanism based on an opt-out system that resembles US class action settlements. by the courts of other Member States, unless one of the grounds to whole. The WCAM requires individual notification of persons known to the representative organisation who are entitled to compensation, and public notification of persons whose identity is unknown to the representative body who are entitled to compensation. opinions filed by the petitioners, which indicated that the 2. Material damage is also claimed by the plaintiff in the form of the economic value of the personal data that has been processes unlawfully. announcements in newspapers, of interested persons whose identities life insurance company), in Vedior (regarding financial (Shell). Court in Dexia held that it is not required that Such settlement can be declared binding for all injured parties by the Amsterdam Court of Appeal (section 7:907 Dutch Civil Code). 18, 39 As previously stated, in countries outside the EU the The WAMCA entered into force on 1 January 2020. This procedure has been successfully used in several international matters, including global settlements in securities cases. A recent phenomenon in the Netherlands is the initiation of class actions against 'big tech'. published on the website of the Court. foreign law may sometimes be problematic because the courts often The party relying on written evidence must submit a copy of it. Converium, the Court ruled that all circumstances are The courts decision regarding the appointment of an exclusive representative, the definition of the class and the scope of the claim must be notified to all members of the class. Read more about this topic: Class Action, Greece is a sort of American vassal; the Netherlands is the country of American bases that grow like tulip bulbs; Cuba is the main sugar plantation of the American monopolies; Turkey is prepared to kow-tow before any United States pro-consul and Canada is the boring second fiddle in the American symphony.Andrei Andreyevich Gromyko (19091989). request. stronger position to them than the law applicable to the claims of In DES (ground 5.19), the Court held This notification will also indicate that Dutch claimants may opt out of the Collective Action, and that claimants based outside of the Netherlands may opt in. The Amsterdam Court of Appeal has exclusive jurisdiction over petitions under the WCAM seeking the approval of an out of court class settlement. It also referred to two US scholars' favourable On 22 June 2020, the European Parliament and Council reached an agreement. A Dutch foundation or association with full legal capacity can represent the interests of the parties concerned in a representative collective action (. Extrajudicial Documents in Civil and Commercial Matters (the The Court Moreover, in case the law in question However, the WAMCA allows the court to award a much higher amount of costs to the winning party in some circumstances. 3.5 Are any other case management procedures typically used in the context of class/group litigation? About 50 class action lawsuits most focused on climate, privacy, securities, anti-trust and corporate misconduct have currently been filed, according to a public report central register. In that EU. Representing LGE, a South Korean listed electronics manufacturer, in its defence against a EUR2 billion cartel damages claim submitted by Vestel, the leading Turkish manufacturer of televisions and computer monitors. The Code of Civil Procedure has a number of provisions allowing a party to apply to the court for an order to disclose certain data or documents that are in the custody of a party to the proceedings or a third party. Sign Up for our free News Alerts - All the latest articles on your chosen topics condensed into a free bi-weekly email. settlements reasonable and affirmed the standing of the foundations "to be sued" (i.e. INPLP fulfils its mission by sharing know-how, conducting joint research into data processing practices and engaging proactively in international cooperation in both the private and public sectors. In both cases the Court representativity; reasonableness; and international each petitioner be representative for all persons With the introduction of the WAMCA in January 2020, interest organisations can (also) claim monetary damages directly in class actions (see our update on the introduction of the WAMCA for more information on the changes introduced by the new system). Netherlands Chapter settlement binding is a 'judgment' as referred to in This matter is, in Also, the non-US The adoption of the draft directive would, after implementation, create a national legal basis for collective redress within the EU. Third-party litigation funding is allowed in the Netherlands and is becoming more common, especially in collective litigation. Netherlands. Accepted that the compensation offered to non-US investors under the settlement agreement was much lower than the settlement amount offered to US investors under the US class settlement, due to a lack of remedies available to non-US claimants outside the US. The Netherlands is unique in its opt-out class actions settlement procedure at the Amsterdam Court of Appeal. Excluding interim relief proceedings, over 30 Collective Actions have been brought in the first two years since the introduction of the amended Collective Action regime on 1 January 2020. However, third party funding arrangements are likely be scrutinised by the court to assess whether the interests of the persons being represented are sufficiently safeguarded. Convention had to be followed. Class/Group Actions 2. 1.11 Are there any limitations in your jurisdiction on global/cross-border class or group actions, including any limitation on the ability of international claimants to participate in such actions? Some provisions from the WCAM apply by analogy. 1.2 Do these rules apply to all areas of law or to certain sectors only, e.g., competition law, security/financial services? The court can order the exclusive representative and the defendant to submit a proposal on this. Parties can request an interim measure from the competent district court in all urgent cases in which an immediate measure is required to protect the interests of the parties (. in this type of proceeding [see Endnote 6], Dutch courts have where none of the two potentially liable parties was Dutch (they The adoption of the draft directive would, after implementation, create a national legal basis for collective redress for consumers within the EU. Corporate. Court Procedures 4. Courtesy the Instituto Nacional de Antropologia e Historia. these persons need to opt out in order to still have standing in Dutch entity. The Collective Action is covered by the regular rules of Dutch civil procedural law. Dutch law of evidence in civil matters will, however, likely be amended in the near future in an attempt to encourage evidence gathering before the initiation of proceedings. It looked at the statutory objects of the foundations applicable international law (such as the Notification Regulation Claims can, for instance, be assigned to a claims vehicle, which can then commence proceedings in its own name. In addition, international law firms and litigation funders have increasingly converged on the Netherlands as one of Europes class actions hubs. appointed by each Member State, it provides in article 14 that each This will likely lead to a large increase in the number of Dutch class actions, particularly combined with the entry into force of the WAMCA. website of the Court. less elaborate manner. Since this concerned so-called sensitive data (which is subject to a stricter regime under GDPR), a higher compensation was awarded. The court will decide on such request and may refuse to grant it if there are compelling grounds for the other party not to disclose the contents of the documents (among other possible reasons for refusal). binding declaration so that they may file objections to the The final decision is made by the court in an interim judgment. "normally" not be expected to be representative for a Does the loser pays rule apply? Costs 7. aspects. All rights reserved. In particular, the court can distinguish categories of compensation where possible; it has to ensure that the amount of compensation awarded is reasonable and that the interests of injured parties are also safeguarded otherwise. 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