From Injunction and Settlement to Action: Collective Redress and Funding in the Netherlands

Abstract

The Netherlands is internationally known for its collective settlement mechanism that was introduced in 2005. In a small number of cases with a global outreach this settlement regime has proven to be effective. However, its application relies on the willingness to conclude a settlement agreement and to have it declared binding by the court. A collective action regime had been in place for decades, but was limited to injunctive and declaratory relief. After years of discussion the collective redress system was ‘upgraded’ by introducing a collective action procedure for damages in 2020. While the intention behind this latest addition can be welcomed as an effective collective action system in this regard was lacking, some of its features are also subject to criticism and have raised doubts as to whether the new Act is an improvement. That is especially the case with respect to actions filed for declaratory and injunctive relief by so called ‘ideological claimants’. Another crucial aspect for the effectiveness of collective redress mechanisms in general, but particularly with respect to monetary relief, is the availability of funding. The different modes of financing litigation, are the topic of extensive debate. In particular third-party funding as a solution to enable expensive collective actions to take place, has gained critical attention in Europe, even though it may prove to be the only available or viable funding option in the international context. This chapter discusses developments in collective redress in the Netherlands with a focus on the issue of funding and on the position of the Netherlands collective redress regime in the European and international context. It concludes that if the Netherlands is to continue to hold its predominant position in Europe in relation to collective redress, that will not be because of the new law, but because of the creativity of lawyers, the pragmatism of the Dutch courts and the willingness of funders to rely on both.