7.3.6 Enforcement

The enforcement of the appraisal right in case a BV is converted into an OVR takes place slightly differently from the enforcement of the appraisal right as described in § 7.2.4. First, there are some noteworthy similarities between the two appraisal rights. One of these is that a shareholder must not consent to the resolution for conversion in order to qualify for the appraisal right. Shareholders who voted against the proposal, abstained from voting, cast a blank or invalid vote, or were neither present, nor represented and the general meeting and shareholders without voting rights, qualify for the appraisal right, unless consent is given in a later stage.

Another similarity is that a shareholder must send a written request for appraisal to the BV within a month after being noticed by the BV about this right. This notice must be sent by the BV in conformity with the tules for the convening of a general meeting. In addition, a shareholder can only enforce his appraisal right with respect to all of his shares and not to part of his shares. Similar to the appraisal right as described in § 7.2.4, one or more independent experts can be appointed if the shareholder and the BV fail to reach an agreement on the price of the shares. Likewise, regarding the appointment of independent experts the rules of Art. 2:351 and 352 DCC apply mutatis mutandis. In a similar way as on the basis of Art. 2:181 DCC, the appointed experts determine the price of the shares.

As § 7.2.6 shows, it is highly doubtful whether Artt. 194-200 RV apply in this situation. In addition, it is doubtful whether the determination of the indemnification can be allocated at independent experts, as compulsory arbitration usually cannot meet the standards of Art. 6 ECHR.1 As is elaborated in § 2.2.3.2, this manner of determination of the price of the shares is likely to be in conflict with Art. 6 ECHR. A comparable view is submitted in England by the CLR with respect to the appraisal right of s. 111 IA 1986.2

In contrast with the way the appraisal right is enforced as described in § 7.2.4, statute stipulates that the court must refuse authorization for conversion when a shareholder has not received indemnification after having noticed the BV in writing about his desire to exit. This rule makes the position of the shareholder appealing on his appraisal right quite powerful, as the conversion process will be blocked until the shareholder receives indemnification for the Toss of his shares.

I consent with Mohr, who puts that it is doubtful whether it makes sense complicating the conversion process with this rule.3 A comparable rule is not found in the rules regarding the appraisal right of Art. 2:181 DCC. On the one hand, the position of the shareholder wishing indemnification will not be highly deteriorated when indemnification take places in a later stage. The shareholder could be entitled to effectuate his appraisal right against the OVR after the conversion, while this legai entity as such continues to exist.4 On the other hand, the existing rule will slow down the already complicated conversion process, as the determination of the indemnification may be time-consuming. Therefore, I recommend detaching the determination of the indemnification from the conversion proces s, in the way that it no Jonger bars the realization of the conversion. Then, the obligation to provide indemnification rests on the shoulders of the OVR after conversion.