7.4.3 Art. 2:320 DCC

When drafting Art. 2:333h DCC, in addition to the appraisal right in the situation of conversion, the legislator was inspired by Art. 2:230 DCC.1 Pursuant to Art. 2:230 DCC, persons, not being than shareholders, who have a special right against the disappearing BV, such as a right for distribution of profits or share subscription right, must either receive an equivalent right in the acquiring company or indemnification. Other examples of special rights are convertible bonds, options, and warrants. In contrast to the appraisal right, it is up to the merging companies to decide between either the allocation of an equivalent right and compensation. A comparable provision can be found in Art. 2:334p DCC applicable in the situation of a demerger.

Similar to the appraisal right, the amount of indemnification must either be agreed upon by the parties involved or is to be determined by one or more independent experts. The independent experts are appointed at the request of either party. In contrast with the appraisal right, these experts are not appointed by the president of the OK, but by the immediate remedies judge of the District Court in whose district the disappearing BV has its registered seat. I agree with Leijten who asserts that it would be most efficient concentrating jurisdiction at the OK.2