6.4.1 Mandatory nature

Proceedings for the settlement of disputes represent mandatory law. The mandatory aspect of the proceedings follows from Art. 2:25 DCC. This provision stipulates that the provisions embodied in Book 2 DCC are mandatory, unless statute provides otherwise. The mandatory nature of the regulation is recognized in the legislative history as well as in legal literature.1 In recent legislative history, the Minister of Justice stressed that it is not possible to (fully) exclude application of proceedings for the settlement of disputes.2

The mandatory nature of the exit proceedings implies that the application of the exit proceedings cannot be waived upfront. In my opinion, an agreement that intends to prohibit the application of the exit proceedings onder any circumstances should be deemed null and void pursuant to Art. 3:40 DCC. I consent with Meinema, who, in this respect, points to the rule of reasonableness and fürness, the rule that underlies Dutch company law. According to her, one consequence of this rule is that law should always allow shareholders to seek for a solution for shareholders' disputes that negatively affect the company.3

The mandatory nature of the exit proceedings ultimately safeguards minority shareholders that have legitimate reasons to exit the company. The mandatory nature of the exit proceedings affords protection to the weaker party within the company. One could question why a shareholder should even be protected against himself. This question could be answered by pointing to the (underlying) mandatory nature of the rule of reasonableness and fürness. This rule prevents that we end up with a company law in which reasonableness and fürness have no place. A mandatory rule also prevents that minority shareholders are pressed to waive their rights to invoke the exit proceedings and protects ill-informed minority shareholders. Moreover, it must be taken into consideration that the mandatory nature does not oblige a shareholder to initiate exit proceedings. A minority shareholder is free to opt for apathy. This apathy could even be well-reasoned.