Einde inhoudsopgave
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/6.10.1
6.10.1 General remarks
mr. dr. P.P. de Vries, datum 03-05-2010
- Datum
03-05-2010
- Auteur
mr. dr. P.P. de Vries
- JCDI
JCDI:ADS409624:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Art. 2:343c paragraph 3 DCC.
Art. 2:343c paragraph 1 DCC, first sentence.
Art. 2:343c paragraph 1 DCC, last sentence.
Parliamentary Papers II 2006/07, 31 058, no. 3 (MvT), p. 113-114: 'In de Adviescommissie burgerlijk procesrecht is nog gevraagd of een partij zich aan de werking van het deskundigenbericht kan onttrekken door het verzoek in te trekken. Deze vraag kan ontkennend worden beantwoord: met de gezamenlijke indiening (dan wel de instemming overeenkomstig lid 1, tweede zin) zijn partijen gebonden aan de uitkomst van het deskundigenbericht. Het verzoek kan dan ook niet eenzijdig door een der partijen worden ingetrokken.'
Art. 2:343c paragraph 5 DCC.
Parliamentary Papers II 2006/07, 31 058, no. 3 (MvT), p. 113.
Art. 2:343c paragraph 2 DCC, first sentence.
Parliamentary Papers II 2006/07, 31 058, no. 3 (MvT), p. 113.
Art. 2:343c paragraph 2 DCC, last sentence.
Art. 2:343c paragraph 3 DCC stipulates that Art. 2:343 paragraph 2 and Art. 2:343a DCC should be applied as far as possible and mutatis mutandis.
The new rules on the BV introduced price determination proceedings as part of proceedings for the settlement of disputes. These proceedings are open for a shareholder, co-shareholder(s) and the company in case agreement on the transfer of shares is present, but parties have not reached agreement about the price of the shares. In these proceedings, parties can request the District Court to determine the price of the shares.
In contrast to the exit proceedings, which are started by summons (dagvaarding), the price determination proceedings are started by application (verzoekschrift).1 The application must be started by the shareholder and the co-shareholder or the company jointly.2 Application can also be started by one of the parties, if the other party does not object to this.3
Starling price determination proceedings are a point of no return. Therefore, before starting the price determination proceedings or when determining whether or not to consent to price determination proceedings, the parties involved have to be certain about whether any outcome of the proceedings is desirable anyhow. After proceedings have been started, parties are bound by the findings of the experts, unless otherwise agreed jointly.
"In the Advisory Committee on the Law of Civil Procedure an inquiry was made whether a party may withdraw itself from the consequence of the expert report by withdrawing the request. This question can be answered in the negative: through the joint submission (or the approval in accordance with paragraph 1, second sentence) parties are bound by the result of the expert report. The request can therefore not be withdrawn one-sidedly by one of the parties."4
The price determination proceedings have only one instance. In first and last instance, the District Court of the district where the company's registered seat is situated has competence. Neither appeal nor cassation is possible.5
The proceedings only relate to the determination of the price of the shares. The court has no competence to deal with disputes between shareholders or disputes between a shareholder and the company. For this reason, the legislator held that price determination proceedings cannot be combined with proceedings for related claims.6 Nonetheless, in my view, it could be argued that parties can also claim for related damages, taking into consideration that Art. 2:343c paragraph 3 DCC stipulates that Art. 2:343 paragraph 2 DCC applies for as far as possible, and because Art. 2:343 paragraph 2 DCC stipulates that Art. 2:336 paragraph 5 DCC apply or applies mutatis mutandis. If the legislator is of the opinion that a combination with related claims is not desirable, I recommend to amend statute in this respect. Besides, the settlement of a related claim in combination with the determination of the price of the shares could lead to a practical solution for the parties involved. Therefore, I do not understand the principal rejection of the legislator of combining the claims in the price determination proceedings.
Before proceedings are started, parties may already agree about certain aspects of the valuation of the shares. In the price determination proceedings, parties can request to the court to give directions to the expert(s) to be appointed with respect to:
the valuation methods to be used;
the valuation date; and
other circumstances that must be taken into regard.7
The court is obliged to follow the directions of the parties.8 As far as there is no consent between the parties on certain aspects of the valuation, the court has the discretion to resolve in fürness.9
Although the proceedings are started by application, the rules of the exit proceedings have to be applied as much as possible and mutatis mutandis.10 This implies, for instance, that provisional remedies can be requested.