The Amsterdam Court of Appeal’s recent decision in Converium Holdings AG may signal the emergence of Dutch courts as a forum in which parties can settle cross-border mass claims, subject only to opt outs. In November 2010, that court held that it could declare binding a proposed settlement in a case in which 12,000 investors, only 200 of whom were from the Netherlands, alleged securities fraud on the part of Converium, a Swiss reinsurer with no securities listed on Netherlands-based exchanges. Scor Holdings AG (f/k/a Converium Holdings AG), Gerechtshof Amsterdam [HoF] [Amsterdam Court of Appeal], Amsterdam, 12 Nov. 2010 NJ—(Neth.) The decision notably expanded the jurisdiction the same court had exercised a year before in approving a settlement between Royal Dutch Shell and a class of non-U.S. investors who alleged that Shell had misstated its proven reserves. Shell Petroleum N.V./Dexia Bank Nederland N.V., Gerechtshof Amsterdam [HoF] [Amsterdam Court of Appeal], Amsterdam, 29 May 2009 NJ 506 (Neth.) (hereinafter “Shell Petroleum”).
The significance is that the Netherlands is the only European country that, like the United States, provides for the binding settlement of mass claims. Although Converium will be provisional pending a fairness hearing later this year, it will likely become final, thus making the settlement binding, at a minimum, in all EU member states, as well as Switzerland, Iceland, and Norway, under the Brussels I Regulation and the Lugano Convention.
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