1.3.4 Developments in the Netherlands

The Netherlands was rather late in introducing exit rights. Similar to other countries, the Dutch legislator started with the introduction of a winding-up remedy, which has been available since 1971. This remedy forms part of a broader remedy, known as the inquiry proceedings. This winding-up remedy is provided for in Art. 2:356 sub f DCC.1

Gradually, a more developed system of exit rights emerged. In 1989, the Dutch legislator introduced proceedings for the settlement of disputes, which allows a shareholder inter alia to start exit proceedings in circumstances where his co-shareholders oppress him Only since very recently, these proceedings can be started against the company as well. The functioning of these proceedings had been heavily criticized in Dutch legal literature, because of the Jack of practicability and shortcomings in a number of respects. On his part, the legislator recognized the dysfunction of the proceedings and launched a review in 2005, as part of the review of the Dutch private limited company law.2 The Dutch legislator argued that a good and effective oppression remedy would form an essential concluding piece of a balanced and flexible BV law.3 At the time of writing this study, it is expected that the revised proceedings for the settlement of disputes will soon enter into force.

In addition to the winding-up remedy and proceedings for the settlement of disputes, the Dutch legislator introduced a number of appraisal rights. The first of these, introduced in 1992, is available to shareholders who do not consent to the conversion of the BV into another legal form, such as an association. In 2008, a second appraisal right was introduced, available to shareholders of a disappearing BV involved in a cross-border merger, which shareholders do not consent to such a merger. A comparable appraisal right will become available when the new Dutch rules on partnerships enter into force. This appraisal right entitles a shareholder who does not consent to conversion of the BV into an OVR to exit the company.

Taking these developments in the Netherlands into consideration, an apparent tendency towards a more elaborated system of exit rights can be observed. As most of the exit rights have recently been introduced and improved, it is plausible that the Dutch system of exit rights would continue to develop in the coming years.

In this context it is interesting to mention that in the legislative history of the rules on cross-border mergers, and in line with the view of the Company Law Committee (Commissie Vennootschaprecht), the Dutch Minister of Justice acknowledged that in the long term a more coherent system of expulsion and exit rights would be desirable.4