Within a private limited company (BV) or a public limited company (NV), shareholders and directors work closely together to grow the company’s business and make it successful. Yet tensions can arise. Think of disagreements about the company's policy or the payment of dividend. If these conflicts are not mutually resolved, they can escalate and have major consequences for the continuity of the company and the cooperation between the parties involved. The Dutch Civil Code already contained various possibilities to resolve such conflicts. However, these procedures have changed as of 1 January this year. In this article, we will explain the new rules as well as the underlying reasons for the changes.

What are the underlying reasons for the changes in the dispute settlement procedure?

Although the dispute settlement procedure before 1 January 2025 seemed promising for resolving these conflicts, in practice the procedure proved too slow and complex. As a result, the procedures were little used in practice. Therefore, the Dutch law on the adaptation of dispute settlement and clarification of admissibility requirements for inquiry proceedings (in Dutch: Wet aanpassing geschillenregeling en verduidelijking ontvankelijkheidseisen enquêteprocedure, hereinafter referred to as “Wagevoe”) entered into force on 1 January 2025. This act introduces important adjustments to the dispute settlement procedure and aims to provide a faster and more effective system for resolving disputes within a company.

In this article, you will read what exactly the Wagevoe means for you as a shareholder and/or director. In particular, we will focus on the private limited company.

The existing dispute settlement procedure, prior to the introduction of the Wagevoe 

The legal options for resolving a dispute within a company were:

• Forced transfer of shares (buy-out, or squeeze-out), as referred to in Article 2:336 of the Dutch Civil Code (i.e. a shareholder is forced to transfer his shares to other shareholder(s) or to the company);
• Forced take over (buy-up) of shares, as referred to in Article 2:343 of the Dutch Civil Code (a shareholder has the right to sell his shares to his fellow shareholder(s) or the company);
• Transfer of voting rights as referred to in Article 2:342 of the Dutch Civil Code;
• Pricing of shares as referred to in Article 2:343c of the Dutch Civil Code.
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However, the above procedures proved inadequate in practice, although there is a great need for a workable arrangement for settling shareholder disputes. The changes to the dispute settlement procedure introduced by the Private Company Law (Simplification and Flexibilization) Act in 2012 did not lead to any improvement. By introducing the Wagevoe, the Dutch legislator aims to meet the need of the practice and provide an effective and efficient dispute settlement procedure.

What are the changed introduced by the Wagevoe?

The Wagevoe makes significant changes to the dispute resolution process, in order to make it more efficient and accessible. The main changes are as follows.

1. Extension of the scope of application

From now on, the dispute resolution procedure is no longer only aimed at small(er) companies, but now applies to all non-listed companies. This makes it possible for a larger group of shareholders and directors to rely on this procedure. In addition, holders of depositary receipts with meeting rights or depositary receipts issued through the cooperation of a public limited company (NV) can now also request forced take over of shares. This increases legal protection for depositary receipt holders in complex corporate structures.

2. Application proceedings at the Netherlands Enterprise Court

The Wagevoe replaces summons proceedings by application proceedings. This means the procedures will become simpler and faster. Key advantages:

• The Netherlands Enterprise Court of the Amsterdam Court of Appeal - a highly specialised court - becomes the only competent body to deal with dispute settlement procedures. Appeal to the Dutch Supreme Court will of course remain possible.
• The Netherlands Enterprise Court can directly summon all shareholders and interested parties. This avoids complex situations where third parties have to join proceedings.
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3. Widening of the scope for forced transfer of shares (buy-out)

Prior 1 January 2025, only conduct of a shareholder in his capacity as shareholder was relevant in case of a sqeeze-out procedure. The Wagevoe widens this criterion. From now on, behaviour of a shareholder as a director, employee or even as a private person can also be taken into account when assessing whether a squeeze-out is justified. As a result, shareholders can now be addressed more quickly for conduct detrimental to the company, even if this conduct takes place outside the shareholder role. Damage to the company, for example by a shareholder who mismanages in his capacity as a director of the company, can therefore be addressed more quickly.

4. Ability to file connected claims

The Wagevoe allows connected claims (such as damages or other civil claims) to be brought at the same time as buy-out or buy-up proceedings. This prevents parties from having to start different proceedings before various courts.

What does this mean for dispute resolution in practice?

The Wagevoe brings important improvements for shareholders and directors in disputes. Here are some practical implications:

• Faster dispute resolution: the procedure is simpler and more efficient, leading to faster results.
• Specialised jurisdiction: because the Netherlands Enterprise Court has exclusive jurisdiction, disputes are handled by judges with specific knowledge of corporate law.
• Lower threshold: the widening of the scope for forced transfer of shares (buy-out) means shareholders can also be sued on the basis of conduct outside their shareholder role. This provides more opportunities for early mitigation of damage to the company.
• Accessibility for depositary receipt holders: depositary receipt holders will have new opportunities to protect their position in conflict situations.
• Avoiding parallel proceedings: bringing claims together in one procedure reduces time and costs.
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In short: the Wagevoe is an important step towards modernising dispute resolution within companies. With a faster, simpler and more effective procedure, this law offers better opportunities to resolve conflicts.

Do you have questions about the Wagevoe or are you confronted with a conflict within your company? The corporate lawyers of SPEE advocaten & mediation are ready to advise and assist you. Please feel free to contact us.