Q&A: CLASS SETTLEMENTS
FOLLOWING the landmark Converium decision of 12 November 2010 of the Amsterdam Court of Appeal, it has been suggested in the media that Amsterdam is set to become the place to be for
collective settlements in major international cases,
even when these cases have scarcely any connection
with the Dutch sphere of jurisdiction. An American
dream on Dutch soil?
TO WHAT EXTENT DOES THE CONVERIUM CASE ALLOW THE
NETHERLANDS TO BECOME A GLOBAL CENTRE FOR MASS
SETTLEMENT?
On 12 November 2010, the Amsterdam Court of Appeal
rendered an important decision in the Converium case
regarding an international collective settlement of mass
damage claims. It may be inferred from the Converium
decision that the Amsterdam Court of Appeal gives a
very wide interpretation to the jurisdiction it enjoys to
hear a petition requesting that an ‘international
collective settlement’ be declared binding, even where
there is no, or only a very tenuous, link with the
Netherlands. While the US courts have declared
themselves lacking jurisdiction to hear the claims of
some 12,000 injured non-US investors who had
purchased Converium shares, the Amsterdam Court of
Appeal has opened its arms to these investors - of
which a mere 200 were domiciled in the Netherlands.
Following the Brussels I Regulation and the Lugano
Convention, the decision of the court is likely to be
recognised in all European Members States,
Switzerland, Iceland and Norway. No other European
court is able to declare an international collective
settlement generally binding. The Converium route
travelled by the Amsterdam Court of Appeal may offer
injured parties a suitable solution with respect to the
collective settlement for loss suffered by a group. This
is even more so since the U.S. Supreme Court in
Morisson v. National Australia Bank ( 24 June 2010) and
No other European court is able
to declare an international
collective settlement generally
binding. The Converium route
travelled by the Amsterdam
Court of Appeal may offer
injured parties a suitable
solution with respect to the
collective settlement for loss
suffered by a group.
in Hoffman-La Roche v. Empagran ( 14 June 2004)
denied non-U.S. claimants in securities and anti-trust
cases the right to bring their claims before U.S. courts.
DOES DUTCH CLASS SETTLEMENT LAW FOLLOW THE
SAME SORT OF PROCEDURE AS CLASS SETTLEMENT LAW
ELSEWHERE?
Since July 2005 it has been possible to settle mass
damage claims in the Netherlands by travelling the
route laid down in the Dutch Collective Settlement Act
(the Act or WCAM). The WCAM allows the Amsterdam
Court of Appeal to declare a settlement agreement that
was struck between the allegedly liable party(ies) and
one or more representative organizations binding on
the entire group – or ‘class’ – of injured parties.
Individual injured parties who do not wish so to be
bound may withdraw from the settlement within a fixed
period by issuing an opt-out declaration. The effect of
the binding declaration is to bind all the injured parties
party to the settlement (except those opting-out) and
thus give them a direct entitlement to compensation.
The main source of inspiration for the WCAM was the
