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Jurisdiction and the WCAM

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Collective Redress and Private International Law in the EU

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Abstract

Various connecting factors can be used in order to confer jurisdiction to a certain court (e.g. the court parties choose in a choice of forum agreement, the domicile of the defendant, the Erfolgsort/Handlungsort, the place of performance of an obligation). In order to determine the competent court in a collective settlement procedure, these connecting factors must be put in perspective with the particularities of the collective settlement procedure (i.e. an interest group is a party to the procedure, rather than the actual plaintiff parties). This chapter sets out whether and how jurisdiction can be conferred to a certain court with respect to a collective settlement procedure. In addition, it is analysed whether the way jurisdiction can be conferred to a certain court is in line with the goals of both collective redress and the Brussels I-bis Regulation.

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Notes

  1. 1.

    The question of whether individual victims who are not domiciled in the Netherlands can actually be bound by a settlement agreement that has been declared binding by a Dutch court will be covered in Chap. 12.

  2. 2.

    Contrary to the interest groups in a collective action, the organisation(s) that is (are) involved in a WCAM procedure actually have to prove that they represent the individual victims.

  3. 3.

    As has been set out in Chap. 4, the victims have the option of opting out of the binding settlement.

  4. 4.

    See Amsterdam Court of Appeal 29 May 2009, NJ 2009, 506 (Shell case).

  5. 5.

    The Shell settlement was made binding in 2009. The plans for the evaluation of the Brussels Regulation did contain some references to collective redress, but these were not that substantial.

  6. 6.

    See Amsterdam Court of Appeal 12 November 2010, NJ 2010, 683 (Converium case) for the court of appeal’s decision on its jurisdiction and Amsterdam Court of Appeal, 17 January 2012, LJN: BV1026 for the decision in which the settlement agreement was made binding.

  7. 7.

    For the entire description of the WCAM procedure, see Chap. 4.

  8. 8.

    See Article 1 Brussels I-bis.

  9. 9.

    See Article 1014 DCCP.

  10. 10.

    Jenard Report, p. 9. See also Van Lith 2011, pp. 40–41. The question of whether the WCAM judgment can actually be seen as a judgment or a settlement will be set out in Sect. 12.2. In that chapter the question of whether a WCAM procedure is contentious or non-contentious will also be addressed.

  11. 11.

    For the similarities between insolvency proceedings and the WCAM procedure, see also Vriesendorp 2010, pp. 173–186.

  12. 12.

    Council Regulation 1346/2000 on Insolvency proceedings of 29 May 2000.

  13. 13.

    Schlosser Report, para 53. See also Magnus et al. 2016, p. 72.

  14. 14.

    Jenard Report, p. 12. See also Magnus et al. 2016, pp. 73–74.

  15. 15.

    Also see Polak 2006, p. 2553.

  16. 16.

    In an application procedure, the court will demand that the party that has filed the request and, in addition, the possible interested parties will be summoned to an oral hearing (Article 279(1) DCCP). The interested parties will have the option of lodging a defence (Article 282 DCCP).

  17. 17.

    See Van Schaick 2011, p. 97. See also the opinion of the A-G in Case C-39/2002, Maersk Oil and Gas v. Firma M. de Haan [2004], para 37.

  18. 18.

    It has been suggested that the use of an application and the way a court will assume jurisdiction in such an application procedure is comparable to the cross-border use of schemes of arrangement in the UK, because the UK court also assumes jurisdiction in relation to third parties in an application procedure. See Kuipers 2013, pp. 225 et seq.

  19. 19.

    Briggs 2009, p. 131. The so-called lex fori regit processum rule applies. This has been confirmed by the ECJ in C-119/84, Capelloni et Aquilini v. Pelkmans [1985], ECR 3147, paras 20–21.

  20. 20.

    See Van Schaick 2011, p. 97.

  21. 21.

    Magnus et al. 2016, p. 673. See also Rauscher 2006, p. 460.

  22. 22.

    Briggs 2009, p. 131; and Magnus et al. 2016, p. 672. The so-called lex fori regit processum rule applies. This has been confirmed by the ECJ in C-119/84, Capelloni et Aquilini v. Pelkmans [1985], ECR 3147, paras 20–21.

  23. 23.

    Van Schaick 2011, pp. 97–98.

  24. 24.

    This example follows from the fact that a lot of Dutch application proceedings are contentious. A defending party is often already known and sent a copy before the application is filed at a court.

  25. 25.

    HR 26 June 2009, NJ 2010, 127. See also Van Schaick 2011, p. 98.

  26. 26.

    As indicated in the previous chapters, the basic principle in the shareholder mass dispute is to claim damages from the registered company. Since in principle shareholders only have a contract with the bank/broker from which they acquired the shares, in this book the “shareholder mass dispute” will be seen as merely contractual.

  27. 27.

    Van Lith 2011, p. 50.

  28. 28.

    Case C-89/91 Shearson Lehman Button [1993] ECR I-139, para 18. See also Poot 2006, p. 177.

  29. 29.

    Case C-269/95, Benincasa v. Dentalkit [1997] ECR I-3788, paras 15–17.

  30. 30.

    For the choice of forum agreement in relation to a collective action, see Sect. 6.4 of this book.

  31. 31.

    Because the individual victims are not actually a party to the agreement before the procedure to bind them to the settlement agreement has started. I will therefore have to look into the possibilities of a Gerling construction.

  32. 32.

    Van Lith 2011, pp. 54–56. See also Poot 2006, pp. 178–180, in which she doubts if such a choice of forum agreement could have effect against the individual victims.

  33. 33.

    Case C-201/82 Gerling v. Tesoro dello Stato [1983], ECR 2517.

  34. 34.

    Van Lith 2011, p. 55. See also Briggs 2009, p. 184.

  35. 35.

    Case C 543/10, Refcomp v. Axa [2013].

  36. 36.

    See Jenard Report, pp. 18–19. Schlosser also refers to the person that is to be sued, albeit indirectly, as a defendant. See Schlosser Report, pp. 99–100. The ECJ also sees the person being sued as a defendant. See case C-412/98 Group Josi Reinsurance Company SA v. Universal General Insurance Company [2000], ECR I-5925, para 35.

  37. 37.

    Jenard, however, argued that the Brussels Convention (and thus also the Brussels Regulation) applies to both contentious as non-contentious matters. See also the definition of ‘judgment’ in Article 2 Brussels I-bis in Sects. 10.2 and 12.2.

  38. 38.

    See also Briggs 2009, pp. 200–202.

  39. 39.

    Court of Appeal 12 October 1999, W.L.R. 2000, 603, 615–616 (The Ikarian Reefer No. 2).

  40. 40.

    See also Briggs 2009, pp. 200–202. Court of Appeal 12 October 1999, W.L.R. 2000, 603, 615–616 (The Ikarian Reefer No. 2).

  41. 41.

    Also see Van Lith 2011, p. 105.

  42. 42.

    See Briggs 2009, p. 201. Based on Briggs argument, I assume that an anti-suit injunction is more of a procedural claim, rather than a substantive claim. Otherwise, the consequence of such a claim (losing a right to sue), would have to be seen as a substantive cause of action, which would make the counterparty a defendant.

  43. 43.

    See Briggs 2009, p. 201.

  44. 44.

    With respect to claims for a declaratory judgment, it could be argued that the “defendant” in such a procedure does not run the risk of being ordered to perform an act, but rather runs the risk of a change in his legal position (e.g. the conclusion that a person to the proceedings has acted unlawfully or can be held liable). In case this thought would be applied to the WCAM procedure, it must be concluded that the individual victims’ legal position will not be changed due to a WCAM procedure. The individual victims will either be awarded damages or not and they will subsequently lose their right to file a claim or not. Such a conclusion does not change their legal position.

  45. 45.

    Case C-159/02, Gregory Paul Turner v. Felix Fareed Ismail Grovit, Harada Ltd and Changepoint SA [2004], ECR I-3565. See also Stefanelli 2012, pp. 166 et seq.

  46. 46.

    Case C-159/02, Gregory Paul Turner v. Felix Fareed Ismail Grovit, Harada Ltd and Changepoint SA [2004], ECR I-3565, para 31.

  47. 47.

    In the German text of the Brussels Regulation, the verb that is used in Article 4 Brussels I-bis (verklagen) is comparable with the English to sue. The same applies to the French verb attraire that is used in the French text.

  48. 48.

    According to Article 1014 DCCP, not only interested parties are allowed to lodge a defence, but also interest groups that claim act on behalf of the interests of parties involved with the mass dispute.

  49. 49.

    See Jenard Report, pp. 18–19. The Schlosser Report also names the person that is to be sued a defendant, although not explictly. See Schlosser Report, pp. 99–100. The ECJ too sees the person being sued as a defendant. See case C-412/98 Group Josi Reinsurance Company SA v. Universal General Insurance Company [2000], ECR I-5925, para 35.

  50. 50.

    Article 282 DCCP. Also see Dutch Parliamentary Documents TK 29414, 2003–2004, nr. 3, p. 27.

  51. 51.

    In the Des case, the Dexia case, the Shell case and the Converium case there were parties that lodged a defence. Most of these defences were based on the ground that the compensation that is awarded through the settlement was not reasonable.

  52. 52.

    The known victims in a WCAM procedure are summoned directly. To ensure that all the victims are summoned, the parties to the WCAM procedure are obliged to publish notifications in newspapers and/or popular magazines. This is also of importance in relation to the jurisdiction of the court, because Article 26(2) Brussels I-bis states: ‘The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.’

  53. 53.

    The court of appeal’s jurisdiction was based not only on Article 4 Brussels I-bis, but also on Article 8(1) Brussels I-bis.

  54. 54.

    Amsterdam Court of Appeal 29 May 2009, NJ 2009, 506 (Shell case), Amsterdam Court of Appeal 12 November 2010, NJ 2010, 683 (Converium case on jurisdiction) and Amsterdam Court of Appeal 17 January 2012, LJN: BV1026.

  55. 55.

    See also Lein 2012, pp. 129–142 in which the author gives a short overview of possible grounds of jurisdiction in collective redress proceedings, especially the WCAM procedure. See also Kramer 2014, pp. 249–258 for an overview of the application of jurisdictional grounds in Brussels I-bis and the WCAM.

  56. 56.

    Case C-539/03, Roche Nederland v. Primus [2006], ECR I-6569, para 26.

  57. 57.

    Case C-539/03, Roche Nederland v. Primus [2006], ECR I-6569, para 27.

  58. 58.

    See also Van Lith 2011, p. 47.

  59. 59.

    Van Lith 2011, p. 47.

  60. 60.

    See Sect. 6.6.

  61. 61.

    Amsterdam Court of Appeal, 12 November 2010, LJN: BO3908, para 2.8. See Case C-38/81, 4 March 1982, Effer v. Kantner.

  62. 62.

    Effer v. Kantner para 7. See also Magnus et al. 2016, p. 172.

  63. 63.

    Pertegás et al. 2004, p. 186.

  64. 64.

    Amsterdam Court of Appeal, 12 November 2010, LJN: BO3908, para 2.8.

  65. 65.

    Case C-26/91, Jakob Handte & Co. GmbH v. Traitements Mécano-chimiques des Surfaces SA [1992], ECR I-3967, para 15.

  66. 66.

    See also Poot 2006, p. 176.

  67. 67.

    C-26/91, Jakob Handte & Co. GmbH v. Traitements Mécano-chimiques des Surfaces SA [1992], ECR I-3967, para 20.

  68. 68.

    Ibid.

  69. 69.

    See Amsterdam Court of Appeal 12 November 2010, JOR 2011, 46.

  70. 70.

    C-334/00 Tacconi v. HWS [2002] ECR I-7357, paras 15 and 21.

  71. 71.

    Since jurisdiction in tortious matters is not regulated separately, this section will deal with the jurisdictional grounds for both consumers as non-consumers.

  72. 72.

    Kalfelis v. Bankhaus Schröder Münchmeyer Henst & Cie. (Case 189/87) [1988] ECR 5565.

  73. 73.

    See Amsterdam Court of Appeal 29 May 2009, OR 2009, 109 (Shell case) paras 5.7–5.14. In the Converium case approximately 12,000 victims were summoned directly (see Amsterdam Court of Appeal 17 January 2012, LJN: BV1026, para 5.2.2).

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    Thijs Bosters

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Bosters, T. (2017). Jurisdiction and the WCAM. In: Collective Redress and Private International Law in the EU. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-186-9_7

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