Transatlantic enforcement of Dutch collective settlement judgments: the case of Canada
| Author | Bastiaan Van Zelst,Mathew P. Good |
| Published date | 01 February 2020 |
| DOI | 10.1177/1023263X19888590 |
| Date | 01 February 2020 |
| Subject Matter | Articles |
Article
Transatlantic enforcement
of Dutch collective settlement
judgments: the case of Canada
Bastiaan Van Zelst* and Mathew P. Good**
Abstract
This article aims to discuss the enforcement of foreign collective action and settlement judgments
in Canada. More specifically, it investigates the enforceability of the decision by the Amsterdam
Court of Appeal declaring binding a class settlement in the Ageas case.
The development of the Netherlands into a prime venue for (cross-border) collective settle-
ments – including with respect to claimants and defendants residing across the Atlantic – renders a
discussion of the enforceability of court decisions pertaining to the collective settlement of dis-
putes of interest from a Dutch, EU and extra-EU perspective.
Keywords
Class action, enforcement, WCAM, Netherlands, Canada
1. Introduction
This article aims to discuss the enforcement of foreign collective action and settlement judgments
in Canada. More specifically, it investigates the enforceability of the decision by the Amsterdam
Court of Appeal declaring binding a class settlement in the Ageas case.
The development of the Netherlands into a prime venue for (cross-border) collective settle-
ments – including with respect to claimants and defendants residing across the Atlantic – renders a
discussion of the enforceability of court decisions pertaining to the collective settlement of dis-
putes of interest from a Dutch, EU and extra-EU perspective.
This article proceeds in two parts. In Section 2 below, we discuss that the Dutch legal system
allows for three types of recourse in mass damages situations. All these mechanisms may give rise
* Maastricht University, Netherlands
** Mathew P Good Law Corporation, British Columbia, Canada
Corresponding author:
Bastiaan Van Zelst, Maastricht University, Minderbroedersberg 4-6, 6211 LK Maastricht, Netherlands.
E-mail: bas.vanzelst@maastrichtuniversity.nl
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(1) 29–54
ªThe Author(s) 2020
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DOI: 10.1177/1023263X19888590
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to enforcement issues. These issues will become increas ingly salient with the introduction of
the possibility for claimants to not only collective ly claim for declaratory relief, but also for
monetary relief.
In Section 3 we set out the framework for enforcement of foreign judgments in Canada
(between provinces and from abroad), and their particular application in the class action context.
This provides for an introduction into the issues current in the context of the enforcement of both
national and foreign judgments in Canada that informs Section 3. Against this background, we
discuss in Section 4 the proper approach to the (transatlantic) enforcement of extraterritorial class
action judgments and settlements in Canada.
We conclude (in Section 5) that there is no fundamental barrier to the recognition and enforce-
ment of a Dutch WCAM declaration in Canada, although that result would not be automatic and
the potential for refusal exists.
2. Settlement of mass claims in the Netherlands
A. Introduction
In the past ten years, the Netherlands has developed into a prime venue for (cross-border) collec-
tive settlements.
1
Examples are the settlements in Royal Dutch Shell
2
and Converium
3
and, more
recently, Ageas
4
(formerly Fortis). These matters concerned the binding declaration of collective
settlements with respect to damages allegedly suffered by (foreign) shareholders as a consequence
of misleading statements.
5
Apart from this mechanism for the binding declaration of collective settlements – laid down in the
Act on the Collective Settlement of Mass Damages, known in the Netherlands as the ‘WCAM’
6
–
Dutch law provides for the possibility for a foundation or association which pursuant to its articles of
association represents the interests of a group o f claimants, to file a claim against a purported
wrongdoer.
7
The WCAM has recently undergone a relevant revision, expanding the possibilities
for claim vehicles to file for pecuniary (rather than just declaratory) relief.
1. T. Arons and W.H. van Boom, ‘Beyond Tulips and Cheese: Exporting Mass Securities Claim Settlements from the
Netherlands’, 21 European Business Law Review (2010), p. 857-884.
2. (NL) Amsterdam Court of Appeal, 29 May 2009, NL:GHAMS:2009:BI5744 (Shell). An English translation of this
decision is available at: www.shellsettlement.com/docs/English-JudgmentTranslation29May09.pdf.
3. (NL) Amsterdam Court of Appeal, 12 November 2010, NL:GHAMS:2010:BO3908 (Converium Interim Decision);
(NL) Amsterdam Court of Appeal, 17 January 2012, NL:GHAMS:2012:BV1026 (Converium).
4. (NL) Amsterdam Court of Appeal, 13 July 2018, NL:GHAMS:2018:2422 (Ageas).
5. It has been submitted that what has become known as the ‘Volkswagen Diesel Scandal’ might also give rise to (col-
lective) legal action in the Netherlands. See Charles Dybus and J. Lemmen, ‘Dieselgate and Consumer Law: Reper-
cussions of the Volkswagen Scandal in the Netherlands’, 6 Journal of European Consumer and Market Law (2017), p.
91-94.
6. WCAM is an abbreviation for Wet Collective Afhandeling Massaschade. The WCAM came into force on 27 July 2005.
It consists of a procedural and a material part. The regulations contained in Article I of the law have been inserted in
Book 7 of the Dutch Civil Code (DCC) (s. 907–910). Article II contains a new Title 14 for the Dutch Code of Civil
Procedure (DCCP), in which the procedural rules are inserted (DCCP, s. 1013–1018). See H.-W. Micklitz, ‘Develop-
ment of Collective Legal Actions in Europe, Especially in German Civil Procedure’, 17 European Business Law Review
(2006), p. 1473-1504; and M. Parsons, ‘European Class Actions’, 4 South Carolina Journal of International Law and
Business (2008), p. 35-60.
7. Article 3:305a of the DCCP.
30 Maastricht Journal of European and Comparative Law 27(1)
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