6.4.2.1 Introduction

Even though proceedings for the settlement of disputes concern mandatory law, it is of supplementary nature as well. The legislator promotes that parties regulate their relationships upfront and create rules that may prevent disputes between shareholders and costly proceedings.1 The articles of association or shareholders' agreement may include a comprehensive, all embracing set of rules for the settlement of disputes between shareholders.2

In this respect, I put forward that the drawing up of extensive rules for dispute resolution may be a costly affür. Especially for small BVs, this can be a financial burden. Moreover, it is difficult to draw up an all-embracing set of rules for the settlement of disputes between shareholders, as not all pos sible circumstances will be foreseeable. In addition, afterward difficult issues may arise with respect to the interpretation of these dispute resolution rules.3

Even if an embracing set of rules for the settlement of disputes between shareholders is included in the articles of association or in an agreement, this does not mean that such a regulation will be applied onder all circumstances. Pursuant to Art. 2:337 paragraph 1 DCC, the court may disregard clauses that make the transfer of the shares impossible or exceedingly onerous. In this respect, proceedings for the settlement of disputes can be seen as a safety net for the minority shareholder.

In the past, Article 2:337 DCC provided for the rule that if the articles of association or an agreement provide for a regulation aimed at settlement of disputes between shareholders, a shareholder would have no locus standi in the proceedings for the settlement of disputes, unless it has been established that such regulation cannot be applied.4 Around the time of the introduction of proceedings for the settlement of disputes, the legislator considered that the proceedings do not affect the freedom of contract with regard to the transfer of shares:

Nowadays, Art. 2:337 paragraph 1 DCC stipulates that if the articles of association or an agreement provides for a regulation for settlement of disputes for which proceedings for the settlement of disputes are designed, deviations from proceedings for the settlement of disputes included in that regulation cannot be appealed for as far as such deviations would render the transfer of shares impossible or exceedingly onerous. This article forms part of the expulsion proceedings. Pursuant to Art. 2:343 paragraph 2 DCC, Art. 2:336 paragraph 5 DCC mutatis mutandis applies to the exit proceedings. Consequently, proceedings for the settlement of disputes always form the safety net for oppressed shareholders.

An example of an exceedingly onerous clause as referred to in Art. 2:337 paragraph 1 DCC, as mentioned in the legislative history, would be a clause included in a contractual dispute regulation stipulating that the majority shareholder is solely entitled to assess whether a minority shareholder is entitled to exit the company.6 This makes sense, as such clause hands the majority shareholder the option to withhold the minority shareholder from any opportunity to exit the company.

The phrase impossible or exceedingly onerous makes clear that clauses are only disregarded in exceptional circumstances. The provision of Article 2:337 paragraph 1 DCC hands the court flexibility, as the court may assess that provisions contained in the articles of association or agreement have to be disregarded partly whereas the remaining provisions remain binding. Consequently, shareholders have a lot of scope to create their own exit tules.

Art. 2:337 paragraph 1 DCC also applies to exit proceedings in which the company is the only defendant or is one of the defendants. This follows from Art. 2:343 paragraph 2 DCC. The Minister confirmed this view in the legislative history.7 Clearly, regulations contained in a shareholder's agreement can only be applied if the company is one of the parties to that agreement.

The most common regulations included in the articles of association or in a shareholders' agreement relate to the following matters: (a) arbitration or binding advice, (b) jurisdiction, and (c) valuation. In addition, agreements on the exercise of voting rights and obligatory offer rules are often found. Moreover, the articles of association or a shareholders' agreement may include an exit right at will, but this is rare.8

Before entering into these subjects, a closer look is taken towards the relationship between Art. 2:337 paragraph 1 DCC on the one hand and Art. 2:195 and 2:340 DCC on the other hand.