Since 1 January 2020, the Resolution of Mass Damage in Collective Action Act (WAMCA) has allowed class actions for damages in the Netherlands. In the United States, companies often use class action waivers to prevent class action lawsuits from being initiated.

In an article published in the Dutch legal journal Nederlands Tijdschrift voor Burgerlijk Recht (Dutch Journal on Civil Law), Eelco Meerdink, Tim Kluwen and David van Hoogstraten explore whether this US phenomenon of class action waivers will spread to the Netherlands. They assess the extent to which a clause in general terms and conditions could serve to prevent companies from being involved in consumer class actions for damages. After briefly explaining the use of class action waivers in the US, they explain that a Dutch class action waiver is likely to take the form of a clause referring any dispute to Alternative Dispute Resolution (ADR). Claim organisations – the entities that, under Dutch and EU law, can bring a class action – would be bound by this clause. Therefore, ADR clauses in the general terms and conditions of consumer contracts could, in principle, prevent claim organisations from bringing a class action. However, the use of such clauses is strictly regulated under EU and Dutch consumer protection laws. Having analysed the consumer law framework, the authors conclude that an ADR clause could serve as a class action waiver if, in short, the benefits of the ADR proceedings outweigh the advantages of class membership in a class action for damages. This outcome aligns with the consistent promotion of both collective redress and alternative dispute resolution by the Dutch and EU legislatures.

The article can be accessed through all main Dutch legal databases. Feel free to reach out to Eelco, Tim or David if you would like to receive a PDF copy in Dutch or a translation in English.

Our guide Unlocking the WAMCA contains more information on the Dutch class action regime and can be found here.