8.1 Introduction

232. This PhD thesis is a study of the Enterprise Division’s administration of justice in investigation proceedings. It focuses primarily on impasse proceedings in which measures referred to in Articles 349a(2) or 356 of Book 2 of the Dutch Civil Code have been taken. These impasse proceedings usually concern smaller companies with only a few shareholders, between whom relations are severely impaired. Secondly it examines a number of decisions in which the Enterprise Division found that mismanagement had taken place and in which, in the framework of handling applications for measures referred to in Article 356, Book 2, Civil Code to be taken and/or for recovery of costs (Article 354, Book 2, Dutch Civil Code), the Division concluded that the executive director or supervisory director to whom the application related was responsible for this mismanagement or improper management.

With regard to these impasse proceedings, the key question was whether the inquiry procedure, in view of its nature and structure and the powers of the Enterprise Division, is an appropriate instrument to break impasses between shareholders. The reason for this question, which I discuss separately in relation to the first and second stages of the proceedings,1 is that although the inquiry procedure was not intended for this kind of dispute settlement, it is nevertheless often used for this purpose. The second question is how and to what extent decisions in which the Enterprise Division, in the framework of handling applications for measures referred to in Article 356, Book 2, Civil Code to be taken and/or for recovery of costs (Article 354, Book 2, Civil Code), has established individual responsibilities for mismanagement or improper management can have an impact on proceedings in accordance with Articles 9 and 138(248) of Book 2 of the Dutch Civil Code and to what extent the Dutch Supreme Court ruling in the Laurus case2 has led to an improvement in the legal position of executive and supervisory directors from the point of view of evidence. The reason for this question is the fact that in our liability law it is considered a problem that when passing judgment in liability proceedings a court may be overly influenced by decisions made by the Enterprise Division regarding the actions of individuals, since those decisions were made in application proceedings with one fact-finding hearing, and no special procedural safeguards are provided for at the hearing stage. I will summarize the main findings below.