7.3.7 Valuation of the shares

Not much attention has been paid to the subject of valuation of the shares in the situation of conversion of a BV into an OVR. Statute does not contain any rule regarding the valuation of the shares. In the legislative history of Art. 7:835 DCC, this topic has not been discussed.

Again, the value of the shares in the economic market could form an appropriate yardstick. This view is in line with the view of De Monchy on this topic. He argues that for the valuation of the shares, not only the present value of the company should be considered, but that future profits must be observed as well.1 He rejects the stance that a shareholder should be entitled to a proportionate share of a fictional liquidation surplus and loses his entitlement to future profits. According to De Monchy, a valuation taking into regard future profits would be justified, while the shareholder is effectively forced to exit the company in the situation described in Art. 7:835 DCC. I approve of this view, whereas it is not likely that conversion will take place if it is reasonably foreseeable that the OVR will have no future profits.

An entitlement to indemnification equating the value of the shares in the economic market could also strengthen the position of a minority shareholder as the owner of the property right on the shares. This is desirable from the perspective of Art. 1 First Protocol ECHR.