6.3.1 Introduction

As appears from Art. 2:335 DCC, proceedings for the settlement of disputes (including the exit proceedings) are open to shareholders of all BVs and of particular NVs. These particular NVs represent NVs with a closed character. In order to qualify for proceedings for the settlement of disputes, the articles of association of the NV concerned must:

If one of the aforementioned matters is not included in the articles of association, then proceedings for the settlement of disputes cannot be used. For instance, an NV with articles of association facilitating solely the issue of bearer shares does not comply with the rule under (1).

The regulation intends to only include closed NVs and to exclude open NVs from application of proceedings for the settlement of disputes, such as listed NVs.1 In open NVs, particularly in listed NVs, there would be less need for an exit right, as usually shareholders can easily sell their shares on a stock exchange. One could doubt, however, whether the laffer assumption is accurate under all circumstances.

A research study performed in 2001 and supervised by Wezeman and Winter shows that approximately one-third of the NVs without a listing fall within the aforementioned criteria and are therefore characterized as closed.2Surprisingly, this report also reveals that at least 80% of the examined open NVs are in fact closed companies. Further to these findings, it can be concluded that the accuracy of the aforementioned criteria to distinguish open NVs from (effectively) closed NVs can be highly doubted.