8.2.3 Winding-up remedy

In all countries investigated, the winding-up remedy is the oldest exit right in place. Because of the ultimum remedium character of the winding up order, the English and Dutch legislators and the German courts have introduced the less extreme option of the exit proceedings. It should be noted that the exit proceedings do not render the winding-up remedy superfluous. In my opinion, the winding-up remedy must be maintained as a safety net in order to provide for a final solution in the event of an irresolvable deadlock between shareholders. When addressing the issue of whether a winding-up must be ordered, not only the interests of the shareholders involved are relevant, but the interests of the employees, creditors and the public interest should be considered as well (§ 5.5).

In comparison with Germany, England and Wales, the scope of the Dutch winding-up remedy is the most restricted.1 In Germany, England and Wales a winding-up is not only possible in the case of an irresolvable deadlock, but also if the objects of the company can no longer be achieved.

In Germany, the scope of the winding-up remedy is the remedy which is least restricted, whereas a winding-up can be ordered if the company does not cooperate with the exit of a shareholder (§ 4.3.6). Considering that the execution of an exit order should basically not lead to difficulties in the Netherlands, England and Wales, I believe there is no need for this German solution.

In the event that the objects of the company can no longer be achieved, it is possible to amend the articles of association. If the shareholders cannot adopt a resolution for amendment of the articles of association, and if this leads to a deadlock in the decision-making process, the exit proceedings or the inquiry proceedings can be used in order to reach a final solution (§ 5.8).

A court order for a dispute demerger is a desirable alternative to a court order for winding-up of the company, but is only an option if the company is fit for a demerger (§ 5.6).