DUTCH UPDATE – Dutch Court Assumes International Jurisdiction and Declares An International Collective Settlement Binding
- The Netherlands has become an attractive venue for settling international mass claims, irrespective of whether any litigation has taken place in the Netherlands.
- The Netherlands is the only European jurisdiction offering a procedure to declare a collective settlement binding on all class members on an “opt out” basis.
- Recently, the Amsterdam Court of Appeal declared an international collective settlement binding in a case where none of the potentially liable parties and only a limited number of potential claimants were domiciled in the Netherlands.
- The decision will in principle have to be recognized in all European Member States, Switzerland, Iceland and Norway and, depending on local law, possibly in other countries as well.
On 17 January 2012, the Amsterdam Court of Appeal declared an international collective settlement binding in a case where none of the potentially liable parties and only a limited number of the potential claimants were domiciled in the Netherlands. This decision confirms the Court of Appeal’s earlier provisional decision to assume international jurisdiction. The decision will in principle have to be recognised in all European Members States, Switzerland, Iceland and Norway. The Netherlands is the only European country where a collective settlement can be declared binding on an entire class on an “opt out” basis. This makes the Netherlands an attractive venue for settling international mass claims, irrespective of whether any litigation has taken place in the Netherlands. This option has become more important since the U.S. Supreme Court’s decisions in Morisson v. National Australia Bank and Hoffman-La Roche v. Empagran.
See for more general information on the Dutch Act on the Collective Settlement of Mass Claims (Wet collectieve afwikkeling massaschade; the “WCAM”): Ruud Hermans and Jan de Bie Leuveling Tjeenk, International Class Action Settlements in the Netherlands since Converium, in The International Comparative Legal Guide to: Class & Group Actions 2012.
Background of the case
Converium Holding AG (“Converium”) is a Swiss reinsurance company (currently known as SCOR Holding AG). Converium was a wholly owned subsidiary of Zürich Financial Services Ltd (“ZFS”) until 2001, when ZFS sold all its Converium shares through an IPO. Converium shares were listed on the SWX Swiss Exchange and Converium ADSs were listed on the New York Stock Exchange. Converium’s share price declined after the company announced increases in its loss reserves in the period from 2002 through 2004. These announcements led to securities class actions in the United States against Converium and ZFS on behalf of a worldwide putative class. The United States District Court for the Southern District of New York (the “U.S. Court”) certified a class consisting of all U.S. persons who had purchased Converium securities on any exchange, as well as all persons – regardless of their residence – who had purchased Converium securities on a U.S. exchange (the “U.S. Purchasers”). The U.S. Court excluded from the class all non-U.S. persons who had purchased Converium securities on any non-U.S. exchange (the “Non-U.S. Purchasers”). The U.S. class action was settled and these settlements (the “U.S. Settlements”) were approved by the U.S. Court. Both Converium and ZFS then settled the potential claims of all Non-U.S. Purchasers with a Dutch foundation representing the Non-U.S. Purchasers (the “Non-U.S. Settlements”). The Non-U.S. Purchasers were predominantly domiciled in Switzerland and the U.K. Only a few were domiciled in the Netherlands. De Brauw acted as legal counsel to ZFS in its successful application to the Amsterdam Court of Appeal to declare this settlement binding.
The Amsterdam Court of Appeal (the “Court”) confirmed its provisional decision on jurisdiction which followed substantially the same line of reasoning as its Shell decision. But the Converium settlement is less connected to the Netherlands than the Shell settlement. In Converium, none of the potentially liable parties and only a limited number of the interested persons were domiciled in the Netherlands. The Court emphasised the significance of a Dutch foundation representing the interested persons and having to distribute the settlement relief under the settlement agreement. This suggests that even without any interested persons domiciled in the Netherlands the Court could have jurisdiction to declare the settlement binding. In its earlier provisional decision, the Court explicitly referred to the limitations for the U.S. courts to do the same in securities and anti-trust cases as a result of the U.S. Supreme Court’s decisions in Morrison v. National Australia Bank and Hoffman-La Roche v. Empagran.
In Converium, a number of defendants argued that the amount of settlement relief for the Non-U.S. Purchasers under the Non-U.S. Settlement concluded by Converium was unreasonable, because the amount of settlement relief for the U.S. Purchasers under the U.S. Settlements was relatively higher. The Court dismissed this objection on the ground that the legal position of the Non-U.S. Purchasers differed substantially from the legal position of the U.S. Purchasers, because the Non-U.S. Purchasers had been excluded from the class by the U.S. Court and no litigation by Non-U.S. Purchasers had been initiated outside of the U.S.
The same defendants also argued that the amount of settlement relief was unreasonable, because the fees for U.S. plaintiffs’ lead counsel, to be deducted from the settlement relief, were too high. The Court dismissed this objection on the ground that the work in connection with the settlement had been carried out for a substantial part within the U.S. jurisdiction by U.S. law firms and that what is considered customary and reasonable in the U.S. may be taken into account in applying the reasonableness test under Dutch law.
The Court also ruled that the representativity test had been met because the Dutch foundation representing the interested persons had various participants and supporters, including shareholder associations and institutional shareholders, domiciled in Switzerland and the U.K., where most known Non-U.S. Purchasers were domiciled.
The Netherlands is the only European jurisdiction offering a procedure to declare a collective settlement binding on all class members on an “opt out” basis. Using the Shell decision as a precedent, the Converium decision confirms that the Amsterdam Court not only has jurisdiction to declare an international collective settlement binding on all class members, irrespective of their domicile, but also has the appetite to facilitate such settlements even if the parties to the settlement and the class members only have a limited connection to the Netherlands.
All EU Member States, Switzerland, Iceland and Norway will in principle have to recognize the Converium decision. However, no case law on this issue exists at this point. Whether other countries will also recognize it, will depend on local law.
The Converium decision confirms that the Netherlands is Europe’s most attractive venue for facilitating international settlements. It is irrelevant in this context whether the settlement forms the outcome of class action litigation, and if it does, in which country the litigation took place.
This paper is the first in a series of papers on the choice of law in international M&A transactions. We invite further papers on this topic.
- Despite developments in Russian corporate legislation, the mergers and acquisitions and international finance markets in Russia still heavily rely on English law.
- Business partners in Russia often choose to enter English law governed shareholders’ agreements because English law gives them the flexibility to structure an agreement in exactly the way they want, and English law has an established use of a number of key provisions which are often invaluable in shareholders’ agreements. These key provisions include concepts such as put and call options, rights of veto, restrictive covenants, drag along and tag along provisions, good leaver and bad leaver provisions, step-in rights, share ratchets and deadlock mechanisms, which Goltsblat BLP regularly advise clients on.
The following summary table comparing English and Russian law positions demonstrates why many parties in Russian deals rely on English law:
|Legal concept and summary||English law position||Russian law position|
|Transfer of rights in a contract from one party to a new third party.||Use is well established.||Use is well established.|
The right for one party to require another party to sell its shares.
Use is well established.
Use is not well established.
|Performance is often secured through the grant of a power of attorney.||Irrevocable power of attorney not permitted.|
|Mechanism for carrying out a completion date audit of the company, to facilitate an adjustment to the purchase price.||Use is well established.||Theoretically possible but not tested in the courts.|
|Provisions stating that the contract (or certain parts of the contract) will only come into force if and when agreed conditions are met.||Use is well established.||Only permitted if the whole contract is conditional.Conditions must be outside of the control of the parties.|
|Covenants and veto rights|
|Contractual promise to do, or not do, something, or to stop something from happening.||Use is well established.||Positive covenants permitted.Negative covenants and rights of veto are unlikely to be enforceable.|
|Damages for breach of contract|
|Financial compensation payable to an innocent party for breach of contract by the other party, to compensate for loss suffered from the breach.||Use is well established.Subject to rules on causation, remoteness and mitigation.Damages for loss of profit and consequential loss are possible.Grossing-up provisions permitted.||Two main options available:- unwind transaction and return purchase price (without costs, etc.);or- seek price reduction to reflect actual state of the asset.|
|Damages for loss of profit and consequential loss are possible but can be difficult to prove.|
|Grossing-up provisions not recognised.|
|Contractual provisions used to break a deadlocked decision between the parties, often leading to the buy-out of one of the parties.||Use is well established.||Theoretically possible but not tested in the courts.|
|Payments of part of the purchase price at intervals after completion, often linked to agreed performance targets.||Use is well established.||Use is well established.|
|Dispute resolution and jurisdiction clauses|
|The process agreed for resolving disputes under the contract and the jurisdiction of the dispute hearing.||Use is well established.||Use is well established.|
|Mechanism allowing a majority shareholder selling its shares to force the minority shareholders to sell their shares at the same time.||Use is well established.||Theoretically possible but not tested in the courts.Irrevocable power of attorney not permitted.|
|Deferred consideration based on achievement of agreed financial targets for an agreed period after completion.||Use is well established.Contract frequently includes covenants restricting conduct of the business during the earn‑out period.||Theoretically possible but not tested in the courts.Negative covenants and rights of veto during the earn-out period are unlikely to be enforceable.|
|Arrangement to deposit title documents and/or completion monies with a third party escrow agent, who then releases them once the completion conditions have been satisfied.||Use is well established.||Escrow arrangements are not currently recognised.|
|Good leaver/bad leaver provisions|
|Contractual mechanism obliging employee shareholders to sell their shares when they leave the company, for a set price depending on the circumstances of their departure.||Use is well established.||Theoretically possible but not tested in the courts.Irrevocable power of attorney not permitted.|
|Linking “bad” leaver events to the restrictive covenants would not be enforceable.|
|Contractual undertakings to compensate for a particular loss or liability.||Use is well established.||Not currently recognised.|
|Joint and several liability|
|All parties are each liable for the full amount of the claim and must agree contributions amongst themselves.||Use is well established.||Use is well established.|
|Limitations on liability|
Provisions restricting the ability of one party to bring a claim against the other.
Use is well established.
Possible but with certain limitations.
|Attempts to exclude liability for fraud or dishonesty are void and unenforceable.|
|Limitation periods (for breach of contract)|
|Time periods for issuing legal proceedings for breach of contract claims.||6 years from the date of breach. 12 years for contracts executed as a deed.||(Generally) 3 years from the date the innocent party learns (or should have learned) of the breach.|
|Can be reduced by agreement.||Cannot be reduced or increased by agreement.|
|Limited recourse liability|
|Limits the contractual liability of one party to another, generally by restricting recourse to the enforcement of security over a specific asset only.||Use is well established.||Not currently recognised.|
Obligation to pay a sum of money in the event that a contract is breached that is higher than the loss suffered.
Penalties are void and unenforceable.
|An obligation to pay a sum that is no higher than a genuine pre-estimate of the loss (i.e. liquidated damages) is enforceable.||Permitted but amounts need to be reasonable.|
|Preferential share rights|
|Rights for one class of (i.e. preference) shares to receive greater or prior ranking economic rights than other shares (e.g. in respect of dividends/returns of capital).||Use is well established.||Not available for LLCs.Basic preference shares available for JSCs.|
|The right for one party to require another party to purchase its shares.||Use is well established.||Use is not well established.|
|Reasonable and best endeavours|
|The efforts that a party must go to in order to ensure that something outside of its direct control is done.||Use is well established.||Not recognised under Russian law.|
|Statements which induce a party to enter into a contract.||Use is well established.Often expressly excluded on M&A transactions (other than for fraud).||Representations outside of the contract not recognised.|
|Non-compete undertakings given in relation to the protection of the business.||Use is well established, and is generally enforceable so long as the restrictions are reasonable in scope and duration.||Risk of being deemed illegal and non-enforceable.|
|An account jointly controlled by a seller and buyer, holding part of the purchase price, to be released to seller on the satisfaction of agreed conditions or to buyer to settle warranty claims.||Use is well established.||Retention accounts are theoretically possible but not tested in the courts.|
|Mechanism to increase/decrease the number of shares and/or amount of sale proceeds a shareholder receives, based on a performance formula.||Use is well established; less popular now, often due to tax issues.||Theoretically possible but not tested in the courts.|
|Mechanism allowing one party to “step-in” and take voting control of the board and/or shareholder meetings.||Use is well established.||Theoretically possible but not tested in the courts.|
|Right is triggered by agreed events of default.|
|Mechanism allowing minority shareholders to sell their shares at the same time as the majority shareholder sells its shares.||Use is well established.||Theoretically possible but not tested in the courts.|
|Third party rights|
|Third party who is not a signatory to the contract may still enforce provisions beneficial to it.||Use is well established.||Use is well established; the third parties must be expressly named.|
|Statements or promises in a contract that confirm particular facts or circumstances.||Use is well established.Can cover a wide range of topics, including on the purchase of the shares in a company, the underlying business and assets of that company.||Basic warranties only, implied by law. Cannot be amended or extended.Do not apply to the underlying business and assets if buying shares. The absence of liabilities cannot be warranted.|
To see the full report, Use of English Law in Russian Transactions, a Comparative Review, please click Report