Einde inhoudsopgave
Exit rights of minority shareholders in a private limited company (IVOR nr. 72) 2010/6.6.4
6.6.4 First stage — Assessment of the claim, appointment of experts
mr. dr. P.P. de Vries, datum 03-05-2010
- Datum
03-05-2010
- Auteur
mr. dr. P.P. de Vries
- JCDI
JCDI:ADS406320:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
De rechter kan zijn beslissing omtrent de vordering voor een door hem te bepalen termijn aanhouden, indien ten processe blijkt dat de vennootschap of één of meer aandeelhouders op zich nemen maatregelen te treffen waardoor het nadeel dat de vennootschap lijdt zoveel mogelijk wordt ongedaan gemaakt of beperkt. Pursuant to Art. 2:336 paragraph 4 jo. 2:343 paragraph 2 DCC this rule applies in the exit proceedings.
Bundel NV en BV, p. IXy- 11 (MvT).
Bundel NV en BV, p. IXy- 14-15 (MvT). This is regularly applied by the OK in the inquiry proceedings.
OK 7 December 1996, JOR 1996/3 (Peeters). The amicable settlement in this case is comparable to amicable settlements concluded during inquiry proceedings, which are described in § 5.6. Another example is OK 28 September 2009, ARO 2009/154 (Sign Top).
Art. 2:343 paragraph 5 DCC.
In first instance of the exit proceedings, the court must assess whether the interests of a shareholder are prejudiced by his co-shareholders or by the company to such an extent that the continuation of his shareholding can no longer reasonably be expected from him.
As the exit proceedings concern an ultimate remedy, the court must investigate whether less far-reaching measures could solve the dispute between the shareholders. Art. 2:336 paragraph 4 DCC stipulates:
If a party in the proceedings establishes that the company or one or more of its shareholders shall carry out to take such measures that will remedy or limit the prejudice that the company suffers as «tbr as possible, the court may stay its judgment in the proceedings for a period to be determined by the court.1
This possibility is created by the legislator in order to hand parties a possibility to mutually agree to settle their dispute amicably.2 In order to have the issues solved amicably, the court may at the request of parties appoint a mediator or another expert in dispute resolution.3
If an amicable settlement is reached, one of the parties can request the court to record the amicable settlement in the minutes of the court session, pursuant to Art. 87 paragraph 3 Rv. In these minutes, the agreement stemming from the amicable settlement can be embodied. These minutes have enforceable power (executoriale kracht), so these minutes entitle any party to execute its obligations.
An example of an amicable settlement (minnelijke schikking) of a dispute after exit proceedings have been started is the Peeters case. As appears of the most recent judgment of the OK in this case, parties reached an amicable settlement of their dispute by agreeing on the transfer of shares and on the binding determination of the price of the shares by an expert.4
Art. 2:336 paragraph 4 DCC seems to fit the expulsion proceedings, as on the one hand statute refers to prejudice that the company suffers, and, on the other hand, the expulsion proceedings focus at conduct prejudicial to the interests of the company. However, this provision seems to be rather unsuitably applied in the exit proceedings, as conduct prejudicial to the company as such is not relevant in the exit proceedings. Therefore, it would be most plausible and reasonable that Art. 2:343 paragraph 2 DCC can be explained in such way that the court may stay its judgment in exit proceedings for a fixed period, if a defendant shall carry out to take such measures which will remedy or limit the prejudice that the claimant suffers as far as possible.
If the claim onder the exit proceedings is awarded by the court's judgment, this judgment also includes an order aimed at the claimant for the transfer of the claimant's shares to the defendant.5