Securities Collective Action and Private International Law Issues in Dutch WCAM Settlements : Global Aspirations and Regional Boundaries

Europe has witnessed an intensive debate on collective redress over the course of the last decade. Discussions in Europe are characterized by opposing views in the Member States and fear for abusive litigation. In June 2013, the European Commission released its long-awaited policy in the form of a non-binding Recommendation, setting out common principles for collective redress. Establishing a genuine pan-European procedure on collective redress appeared unfeasible. Nevertheless, this Recommendation marks an important step for the future of collective redress in the European Union. In the European debate, the Dutch procedure on the basis of the Dutch Collective Settlements Act (Wet Collectieve Afwikkeling Massachade, “WCAM”) plays an important role. The Act was introduced in 2005, and is in part based on the US system. Since its introduction it has attracted several influential transnational securities cases, including the Shell and Converium cases. The use of this settlement mechanism in transnational cases as well as its extraterritorial reach has been both applauded and criticized. This paper explores the issues of international jurisdiction, recognition and enforcement and the applicable law in relation to transnational WCAM settlements, particularly in securities cases. It questions whether these matters are adequately addressed in Dutch practice, against the background of the existing (European) legislation and in the global context, and whether the current legislative framework is adequate to facilitate transnational class actions and settlements