6.3.5 General remarks

Storm and Van den Muijsenbergh argue that if the articles of association do not prohibit the issue of bearer depositary receipts of shares with the cooperation of the company and no bearer depositary receipts for shares have been issued, proceedings for the settlement of disputes still apply as the company would still be closed.1 Remarkably, they do not acknowledge that if no bearer shares have been issued, but the articles of association enable the issue of both bearer shares and registered shares, proceedings for the settlement of disputes also apply. In my opinion, the proceedings are not applicable in both situations, because this would be contrary to the literai wording of Art. 2:335 DCC.2 The view of Storm and Van den Muijsenbergh contravenes the idea of the legislator that the proceedings only apply to NVs that without any doubt have secured their closed character.

For the application of proceedings for the settlement of disputes it is not relevant whether the large companies' regime (structuurregeling) applies.3 This makes sense, as the size of the company relates not necessarily to the number of shareholders of that particular company, or to whether the company is open or closed. These companies may have just one or a few shareholders. Although the competencies of shareholders in a company at which the large companies' regime are more restricted, it is conceivable that disputes may occur, for instance with respect to the distribution of profits or the adoption of annual accounts.4