WAMCA Litigation Concerns

Concerns about WAMCA litigation primarily revolve around the practical implementation and effectiveness of the Dutch Act on Redress of Mass Damages in Collective Action (WAMCA), which came into force on January 1, 2020. These concerns include:

1. Ambiguities in Admissibility Requirements:

• • Sufficiently Representative Claim Vehicles: A key concern is the interpretation of the requirement that claim vehicles (associations or foundations) must be sufficiently representative of the harmed parties. Courts are still clarifying the “sufficient representativeness” criteria, leading to potential procedural delays and uncertainties. This ambiguity can make it challenging for claimant organisations to know if they meet the threshold, potentially hindering access to justice.

• • Strict Formal Requirements: The WAMCA imposes strict formal requirements on claim organisations, such as registering the writ of summons in a central registry within two days of service. Failure to comply can lead to inadmissibility, even for minor administrative omissions. While courts have shown some leniency, the strictness of these rules remains a concern.

2. Procedural Delays:

• • Standstill Period: Following the registration of a claim, a mandatory standstill period of three months (which can be extended by another three months) is triggered to allow other potential claimant groups to file competing claims. This period can significantly delay the proceedings.  

• • Focus on Admissibility Arguments: Defendants may initially focus their defence on procedural admissibility arguments, leading to further delays before the substance of the claim is addressed.  

• • Overall Processing Time: Data suggests that WAMCA proceedings can be lengthy. The first substantive judgment for a mass damages claim under WAMCA took over four and a half years, raising concerns about the efficiency of the new regime.

3. Impact on Litigation Funding:

• • Attractiveness to Funders: The first substantive judgment under WAMCA, which denied the plaintiff’s claims, has raised questions about whether WAMCA will be as attractive to third-party litigation funders as initially anticipated. If funders become less willing to finance these claims, it could impact the viability of future mass actions.

• • Regulation of Funding: There are ongoing discussions about the desirability of establishing a litigation fund and stricter regulation of third-party funding in the Netherlands, which could impact the landscape of WAMCA litigation.

4. Achieving Finality:

• • While the opt-out mechanism for domestic claimants aims to increase the likelihood of finality by binding a large majority of the affected parties, the effectiveness of this mechanism in practice is still being assessed.

5. Scope and Application:

• • Temporal Applicability: Debates exist regarding the temporal applicability of WAMCA, particularly when events giving rise to the claim occurred partly before and partly after the Act came into force.

• • Cross-border Claims: While WAMCA includes an opt-in mechanism for foreign claimants, the practicalities and effectiveness of this for large international claimant groups are still evolving.

In summary, while WAMCA aims to enhance the efficiency and effectiveness of mass damage claims in the Netherlands, concerns persist regarding interpreting its admissibility requirements, potential procedural delays, impact on litigation funding, and practical application of its various mechanisms. The ongoing evaluation of WAMCA by the Dutch government, initiated earlier than initially planned due to these concerns, will likely provide further insights and potentially lead to clarifications or amendments to the Act.