The Dutch proposal for collective
settlements:new trends in multi party
actions. An evaluation.
Presentation for the British Institute for
International Comparative Law
27th of June 2005
Outline presentation
• Main features
• Background proposal
• Comments
• Personal Note
2
Main features
• Collective settlement out of court by defendants
and representative organisations (if defendants
don’t want to: (almost) end of story)
• Parties can jointly ask the judge to aprove it;
• Court of Appeal Amsterdam
• Damage scheduling;
• Opt out possibility;
3
(Factual) background proposal
• 1986: DES litigation
• 1992: Supreme Court ruling ‘a rainmaker’
• DES Register Centre: 18.000 in 6 weeks
• 440.000 (220.000 DES mothers; 110.000
doughters and sons)
• 1999: DES Fund and settlement (€ 34 million)
4
(Judicial) background proposal
• Dutch Law: only collective actions for injunctive
relief and ‘declarations’
• Initiated by representative ‘interest organisations’
• No ‘damages’ class/collective actions
• Defendants want final settlement
• (not ad hoc) Legislation is needed
5
(Political) background proposal
• Public (and thus political) pressure to resolve the
DES matter
• Preparation of proposal
• Consulations with ‘interested parties’
• Not with Dutch Consumer Organisation
• January 2004: presentation of proposal on
Collective Settlements
• Summer 2005: unacted
• 2006 (20 years later): start of distribution
6
The comments
• Judiciary: ‘not amused’
• The Bar: different reactions
• Nice
• Nice but useless
• Consumer organisation: ‘angry and disappointed’
7
Personal note
• Two determinants:
• Working Group (the Dutch ‘troika’)
Fundamental revieuw of the Dutch law of civil
procedure
• PhD
• Working Group suggestions
• Involve judiciary in pre-action stage
• Less codification: more flexibility
8
Personal note
• PhD
• See previous
• Focuss on really important matters like dealing
with the ‘limited fund’-issue
• Pay attention to the invluence of (financial)
incentives and the dynamics of collective
settlements; they generate volume
• Consider the possibilities of ‘private law
enforcement’ in ‘no bother cases’ (or large
scale small claim litigation)
9
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