6.9.1 Reasonableness and fürness

As can be derived from the open standard of Art. 2:343 DCC, especially from the wording reasonably expected, the rule of reasonableness and fürness as referred to in Art. 2:8 paragraph 1 DCC underlies the exit proceedings. Art. 2:8 paragraph 1 DCC stipulates that the legal entity (i.e. the BV involved) as well as all persons concerned with that legal entity by virtue of statute or the articles of association have to observe the requirements of reasonableness and fürness towards one and other. This prescription can be seen as the principal standard of Dutch company law.1

The rule of reasonableness and faimess also plays an important role in the inquiry proceedings as well as in the proceedings for nullification of resolutions.2 Comparable to the proceedings for nullification of resolutions, the exit proceedings can be seen as an elaboration of the principles of reasonableness and faimess that underlie Dutch law. From this point of view, it can be justified that before the introduction of proceedings for the settlement of disputes, courts have incidentally ordered the transfer of shares further to the principles of reasonableness and faimess.3 As nowadays proceedings for the settlement of disputes are contained in statute and include essential safeguards, I assume that an order for transfer of shares can no longer be solely based on the principles of reasonableness and faimess. An order for the transfer of shares based on the principles of reasonableness and faimess may also lead to practical problems. For instance, the application of transfer restriction clauses may foren a serious hick-up.

The rule of reasonableness and faimess is not a very specific standard and its application depends on the circumstances of the case. Ultimately, it is in the discretion of the court to decide what should be deemed reasonable and für. The view that the rule of reasonableness and faimess underlies proceedings for the settlement of disputes, the inquiry proceedings and the proceedings for nullification of resolutions does not imply that these proceedings can be applied in similar situations. Nonetheless, there is an undeniable overlap and to a certain extent proceedings may run parallel. Resolutions that are unreasonable and unreasonable may also constitute prejudicial conduct justifying an exit of a shareholder.4 Case law with respect to the inquiry proceedings and proceedings for nullification of resolutions may therefore foren a source of inspiration for application of the exit proceedings. In this case law, standards can be derived as to how the company and co-shareholders should act towards minority shareholders. This case law may assist in interpreting Art. 2:343 DCC. As in the exit proceedings interral as well as extemal conduct of a shareholder can be relevant, its scope is broader than Art. 2:8 DCC.