6.6.8 Provisional remedies

Art. 2:338 paragraph 3 and 2:343 paragraph 2 DCC clarify that the court may order provisional remedies (voorlopige voorzieningen) as referred to in Art. 223 Rv during the exit proceedings. Further to the aforementioned articles, the court is even allowed to order provisional remedies that have effect after the proceedings end up until the moment that the shares are actually transferred. According to the same provisions, the court ought to handle applications for provisional remedies with due speed.1 Art. 2:338 paragraph 3 DCC explicitly refers to provisional remedies as governed by Art. 223 Rv. The difference between provisional remedies based on Art. 2:338 paragraph 3 DCC and provisional remedies based on Art. 223 Rv is that the laffer remedies can only be effective up until the end of the proceedings.

Art. 223 paragraph 2 Rv applies to the exit proceedings, as this provision applies to all proceedings started with summons. Art. 223 paragraph 2 Rv stipulates that provisional remedies have to relate to the principal claim (hoofdvordering) in proceedings. Except for the aforementioned rule, statute does not contain a limitation in respect of provisional remedies than can be given. As has been made clear by the Dutch Supreme Court, there is an open system of provisional remedies.2 Therefore, any imaginable provisional remedy can be ordered, as long as the provisional remedy is suitable onder the circumstances of the case.

In order to prevent prejudicial conduct in the future, it could for instance be helpful if the court prohibits the defendant to exercise his voting rights on the shares. In the past, this order was contained in the former Art. 2:339 paragraph 2 DCC. This former provision is no longer needed after the introduction of the current Art. 2:338 paragraph 3 DCC. Another example of a provisional remedy, as given in the legislative history, concerns the order for suspension of an additional obligation (extra-verplichting) attached to the shares.3

Provisional remedies based on Art. 223 Rv are comparable to immediate remedies in interlocutory proceedings.4 Hendrikse and Jongbloed submit that roughly Art. 223 Rv can be seen as interlocutory proceedings within the context of the proceedings started by summons.5 For instance, both remedies can be declared provisionally enforceable and a court deciding on the principal claim is not bound by the judgment including the immediate remedy or provisional remedy.

However, there are some remarkable differences which make immediate remedies more flexible than provisional remedies. Firstly, as mentioned above, Art. 223 RV stipulates that provisional remedies only have effect during the proceedings. In principal, immediate remedies remain in effect after interlocutory proceedings. Moreover, immediate remedies do not necessarily have to relate to the principal claim, whereas provisional remedies do.

Although in the exit proceedings the request for a provisional remedy is dealt with by the same court, the request for a provisional remedy brings along separate proceedings which have to be stoned by summons or by reasoned conclusion.6 Because the regular procedure rules apply, a request for a provisional remedy is usually more time-consuming than requesting an immediate remedy in interlocutory proceedings. The court decides on the provisional remedy before or simultaneously with the exit claim @@7

Taking into consideration that immediate remedies are more flexible, that they do not require full proceedings by summons and that they can be obtained more quickly, I predict that claimants will favour storting interlocutory proceedings for immediate remedies instead of requesting for provisional remedies on the basis of Art. 223 Rv. A shareholder may also consider both ways, whereas if the request is denied in interlocutory proceedings a second chance for a remedy is available in the exit proceedings.8