Promotie D.M.J. Eijsermans-van Abeelen LLM
ONLINE De uitkering van massaschadeclaims. Professionalisering van het distributieproces bij collectieve schikkingen
- Promotor: prof. dr. C.F. van der Elst
- Copromotor: mr. dr. W.C.T. Weterings
Tilburg University volgt de maatregelen van het Rijksinstituut voor de Volksgezondheid en Milieu (RIVM) rond het coronavirus. Mede op basis van de aangescherpte richtlijnen bieden we voor onze promoties een livestream aan. Deze plechtigheid kan online worden bijgewoond via deze livestream.
Lay Summary in English
This dissertation studies the actual settlement of mass claims in the Netherlands. The research focuses in particular on the design of the distribution process in the context of the WCAM procedure, in which the compensation scheme agreed in the settlement agreement is provided. During this distribution process, the claims processing organization is responsible for the allocation and actual distribution of the settlement fund. The distribution plan, which is part of the settlement agreement, includes parameters for this purpose. Nevertheless, the distribution plan does not contain a manual on how to set up the distribution process and leaves many questions unanswered. In addition, there are few rules or guidelines regarding the organisation of the distribution process. As a result, the way in which the distribution process has been executed to date varies widely. Information on the course of events during this process is scarce and there is a lack of transparency and supervision. Insight into the activities and the way in which the distribution process is carried out is important in order to prevent errors or even abuse, to promote the creation of precedents and to provide potential claimants with advance insight into the expected claiming rates.
By means of case studies, therefore, it was mapped out how the distribution process is currently being implemented. To date, the court of appeal has declared nine settlements universally binding: DES I and DES II, Dexia, Vie d'Or, Shell, Vedior, Converium, DSB and Fortis. The first eight cases were each subject of a case study. The Fortis case had not yet been declared binding at the time of the start of the study and could therefore not be part of this assessment. Information was gathered on the occurrence of the mass damage, the conclusion of the settlement agreement, the role and function of the 'claim foundations' involved, the settlement fund, distribution plan and yield, the distribution of the settlement fund, supervision and transparency during the distribution process, the termination of the distribution process and the handling of unknown claims.
This analysis showed that there are several uncertainties with regard to the distribution of the settlement fund. A closer study of the above-mentioned themes shows that several aspects of the distribution process can be further professionalised and standardised. When organising the distribution process adequately, a balance must be struck between creating clarity and openness during this process on the one hand, and preventing excessive costs and bureaucracy on the other. This has led to a number of proposed amendments or additional provisions in the WCAM, which are in line with the existing legal system and the current role and function of the Amsterdam Court of Appeal in it.
The proposed standards and thus the organisation of the distribution process within the framework of the WCAM procedure are directly applicable in practice. This will save time and money. In addition, application of these standards provides insight into important information with regard to the actual settlement of mass claims in the Netherlands.