6.6.9.1 With appointment of experts

The first stage of the expulsion proceedings and exit proceedings concludes with the judgment of the court with respect to the transfer of the shares to the claimant respectively to the transfer of the shares by the claimant. If such a claim has been rewarded, in principle the court must appoint one or several experts for the valuation of the shares.1 Neither appeal nor cassation is possible with respect to the judgment appointing the expert(s).2

With their appointment, the experts receive the assignment to produce a report on the valuation of the shares. The experts do not receive the assignment to determine the price of the shares. The price of the shares is determined by the court itself on the basis of the valuation report. This distribution of competencies fits in with the general rules on the role of experts,3 and with the rules of Art. 6 ECHR.4

The valuation report must be prepared in writing and cannot be given orally.5 This rule is included as valuation is considered as a matter of great importance and reporting in writing usually requires deliberate reflection. As has been held in the legislative history:

The judgment with respect to the first stage (exit claim) can only be appealed simultaneously with the judgment regarding the second stage (valuation), unless the court resolved differently.7 There is no appeal possible with respect to the appointment of the experts by the court.8

The provisions of Art. 194 up to and including 199 of the Code of Civil Procedure (RV), are applicable to experts appointed in the exit proceedings.9 These provisions contain procedural tules on experts. For instance, Art. 194 paragraph 5 Rv entitles the court to request experts for explanation and to request for additional findings.10 Moreover, the court may even appoint other experts if necessary. This can be helpful if the valuation of the shares requires specific knowledge or skills The experts must be impartial and are under the duty to perform their duties to their best knowledge. All parties involved are entitled to submit remarks or requests, as follows from Art. 198 Rv. Furthermore, Art. 198 Rv obliges parties to cooperate with the valuation performed by the experts. Unlike under former BV law, Art. 200 Rv no longer applies. This seems für, as Art. 200 Rv especially regards oral hearings.

Moreover, in the valuation process Artt. 2:351 and 352 DCC apply mutatis mutandis.11 As result thereof, experts have far-reaching powers to perform the valuation. Experts are authorized to examine the books and records and other data sources of the company required for preparing the valuation report. Upon request of the experts, assets of the company have to be demonstrated. Managing directors, employees and, if available, supervisory directors, are obliged to provide the experts with relevant information upon their request.

This obligation rests also on the shoulders of former managing directors, former employees and, if available, former supervisory directors, provided that these were still in office in the period which the valuation report refers to. The court may, for the proper performance of the duties of the experts, upon their request, authorize them to perform all aforementioned powers also with respect to any legal entity closely connected with the company. If inspection of the books and records and other data sources is not made possible or if the assets are not demonstrated, the court may upon request of an expert give such orders as is required onder the circumstances. Such orders may include an order for assistance of the police force and an order for forced entrance into private residences. It is important to notice that experts have a duty of confidentiality with respect to all information received.

In proceedings with respect to the valuation of shares, the experts have to take into regard arrangements between parties when preparing the valuation report.12 These arrangements may stem from the articles of association or shareholders' agreements. The arrangements referred to in this provision are the same arrangements as referred to in Art. 2:337 paragraph 1 DCC.13

In the situation that experts have been appointed, the court must await the experts' report regarding the valuation of the shares. On the basis of this experts' report, the court must determine the price of the shares.14 Usually, the court will follow the valuation report, but the court is not bound by the recommendations of the experts.

As mentioned above, further to Art. 2:339 paragraph 2 DCC, experts are bound taking into regard valuation clauses in the articles of association or a shareholders' agreement when preparing the valuation report. Nevertheless, the court may disregard valuation clauses in the exit proceedings, if application thereof would lead to a manifestly unreasonable (kennelijk onredelijke) price of the shares, as appears from Art. 2:340 paragraph 3 DCC in conjunction with Art. 2:343 paragraph 2 DCC. It would be practical if the court, when instructing the experts, already indicates whether application of valuation clauses will be upheld by the court or not. Experts then may (or may not) share the court's opinion on whether the valuation clauses are manifestly unreasonable or not and may disregard manifestly unreasonable valuation clauses when preparing the valuation report.15