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Securities Litigation in Nederland (2021)

Ook dit voorjaar hebben Peter van Kippersluis, Raimond Dufour en Ameer Muhammad de Nederlandse bijdrage voor Lexology Getting The Deal Through (GTDT) voor hun rekening genomen. Peter, Raimond en Ameer schreven specifiek over securities litigation in Nederland. Lexology GTDT is een online platform dat wereldwijd dient als juridische vraagbaak voor duizenden advocatenkantoren, universiteiten, toezichthouders en bedrijfsjuristen. Het platform biedt voor tientallen jurisdicties informatie over de toepasselijke wettelijke bepalingen en recente ontwikkelingen op een groot aantal rechtsgebieden.

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Gedeelte uit het artikel:

"GENERAL FRAMEWORK

General climate

1. Describe the nature and extent of securities litigation in your jurisdiction.

In the Netherlands, securities litigation usually pertains to civil disputes between investors and issuers or vendors of securities. These proceed­ings occur frequently in the Netherlands and often involve non-Dutch parties. This is because:

  • the cost of litigation in the Netherlands is significantly lower than in other jurisdictions, especially common law jurisdictions;
  • parties have the opportunity to conduct the entire course of proceedings in English before the Netherlands Commercial Court;
  • Dutch courts are relatively lenient in assuming international juris­diction; and
  • Dutch law provides a class action and class settlement procedure.

Securities litigation in the Netherlands can also involve administrative proceedings between the financial supervisory authorities and super­vised entities on, for example, disclosure of inside information.

Courts and time frames

2. What experience do the courts in your jurisdiction have with securities litigation? Are there specialist courts for securities disputes? What is the typical time frame for securities litigation in your jurisdiction?

In administrative disputes between a financial supervisory authority (ie, the Dutch Authority for the Financial Markets or the Dutch Central Bank) and, for example, the issuer of securities, the district court of Rotterdam is the competent court in the first instance. The Trade and Industry Appeals Tribunal is the competent court in the second instance.

Regarding civil disputes, there is no formally designated specialist court that deals with all securities disputes in the Netherlands. Nonetheless, Dutch courts are experienced in securities litigation, especially the Amsterdam district court. Aside from regular courts, the Financial Services Complaints Institute, which is an independent dispute committee, exclusively deals with disputes between small and medium enterprises (or consumers) and financial institutions (eg, banks, insurance companies, etc) pertaining to financial products and financial services.

As to timeframes, more often than not, securities litigation in the Netherlands pertains to complex and international disputes in which a collective claimant initiates class action proceedings against multiple defendants (often Dutch and non-Dutch) for the benefit of a large class (often consisting of Dutch and non-Dutch members). The duration of these proceedings depends on how the court stages proceedings (eg, international jurisdiction, admissibility, applicable law, merits), whether each stage will have an oral hearing, and whether the court will allow for interim appeals (the latter is usually denied, however). Typically, on average, international securities disputes that are litigated in class action proceedings will take around five years to complete in the first instance.

Government regulation and enforcement

3. What is the relationship between private securities litigation and government regulation and enforcement in your jurisdiction?

Private securities litigation and government regulation and enforce­ment overlap in the Netherlands, but have different aims.

Government regulation and enforcement mostly apply to listed companies and pertain to, among other things, financial reporting, prospectuses, public offerings, transparency requirements and market abuse. The rules are derived from or contained in, among other things:

  • the Transparency Directive (EU Directive 2007/14/EG);
  • the Prospectus Regulation (EU Regulation 2017/1129);
  • the Takeover Bids Directive (EU Directive 2004/25/EG); and
  • the Market Abuse Regulation (EU Regulation 596/2014).

Accordingly, government regulation and enforcement aim to ensure the orderly functioning, integrity and stability of the financial markets and a high level of protection for investors.

Private securities litigation is the body of civil instruments to obtain relief in cases of, for example, breach of contract or tort (eg, in the event of a breach of a statutory duty). Such relief is often ultimately aimed at obtaining monetary compensation.

CLAIMS AND DEFENCES

Available claims

4. What types of securities claim are available to investors?

Claims can be brought under the Dutch Civil Code (DCC).

Investors can claim damages and, in addition, if they qualify as a consumer, seek a nullification of the purchase agreement of the securi­ties (article 6:193j(3) of the DCC).

In cases of misrepresentations or omissions of information that aims to promote an investment decision (eg, a prospectus), professional investors can base their claims on the statutory rules on misleading advertising (article 6:194, DCC) and consumers can base their claims on the statutory rules on unfair commercial practices (article 6:193b, DCC).

Secondary market purchases may create liability for, for example, incorrect investment advice or breach of best execution duties. This will usually lead to claims for damages against advisers or brokers.

Disclosures that commonly give rise to private claims are disclo­sures in situations where the company is in financial distress or disclosures, either made by the company or by a financial supervisory..."

Wilt u het hele artikel ontvangen? Vul dan het formulier in of neem contact op met Peter van Kippersluis, Raimond Dufour or Ameer Muhammad.

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Reproduced with permission from Law Business Research Ltd. This article was first published in Lexology GTDT – Securities Litigation. For further information, please visit: https://www.lexology.com/gtdt.