WAGEVOE puts valuation at the centre of Dutch shareholder disputes
The new disputes regime brings the conflict and the valuation of the shares much closer together
Summarized
- The WAGEVOE makes share valuation a central element of shareholder disputes before the Dutch Enterprise Chamber.
- In 2025, 79 requests were filed under the new shareholder dispute resolution framework.
- Normalised earnings, future cash flows and financial risks play a key role in determining share value.
- An early valuation analysis helps assess the financial impact of shareholder disputes and can contribute to resolving them.
Introduction
The introduction of WAGEVOE — the Wet aanpassing geschillenregeling en verduidelijking ontvankelijkheidseisen enquêteprocedure — has changed more than the procedure for resolving Dutch shareholder disputes. According to Costas Constantinou, partner at Oaklins Valuation Advisory, it has brought the dispute itself and the valuation of the shares much closer together.
In 2025, the first year of the new regime, 79 requests under the new disputes regime were filed with the Enterprise Chamber. By comparison, approximately 45 cases had been handled at first instance by the district courts since the previous disputes regime was revised in 2012.
Under WAGEVOE, exit (uittreding) and expulsion (uitstoting) proceedings are brought directly before the Enterprise Chamber (Ondernemingskamer) and can be combined with an enquiry proceeding. Where parties agree that shares will be transferred but not on the price, they can also ask the Enterprise Chamber to determine that price.
Valuation has consequently become an important part of the dispute at an earlier stage. The Enterprise Chamber itself describes the expert report as playing a central role in determining the price of the shares and has published specific guidance for valuation experts under the new regime.
"The key question is not simply what the company is worth, but how the conduct in dispute affected the company's financial performance, prospects or risk, and what that means for the value of the shares."Costas Constantinou
What financial reality should be valued?
Shareholder disputes can involve allegations ranging from excessive management remuneration and related-party transactions to transfers of business activities, disputed investments or prolonged deadlock.
Those matters are important legally, but their valuation significance is a separate question.
Suppose one shareholder who manages the company receives annual remuneration of EUR 600,000. Another shareholder argues that EUR 200,000 would represent appropriate market remuneration.
The legal analysis may concern whether the remuneration was properly approved or otherwise wrongful. The valuation question is different: assuming the correct remuneration is in place, what is the company's value?
At first sight, adding EUR 400,000 to annual earnings may appear straightforward. It rarely is. Questions that may need to be addressed include, was the EUR 600,000 genuinely appropriate for the role? Did the shareholder perform additional functions? Was the higher remuneration exceptional or recurring? Would a third-party buyer expect the high remuneration to continue?
The purpose of normalisation of earnings is to establish the sustainable financial performance on which a valuation can reasonably be based.
If a shareholder dispute has caused a major customer to leave, has delayed investments, or has disrupted the business, future cash-generating capacity or risk change, and that can have a significant impact on the valuation of a business.
A valuation therefore needs to distinguish between temporary distortions that can be normalised and effects that have permanently changed future performance or risk.
The assumptions may matter more than the methodology
Valuation discussions often focus on methodology, discounted cash flow versus market multiples, discount rates, comparable companies, and long-term growth.
Those issues matter. But significant valuation differences arise before the methodology is applied.
Often the focus shifts on what the sustainable EBITDA is, on the achievability of management's forecast, the fairness of related-party transactions, the sustainable level of future profit margins, future investments, and the company's risk profile.
The valuation date, or peildatum, can be equally important. It establishes the point in time at which the business is being valued. Typically, that date is the date close to the relevant Court proceedings. This can be particularly important where trading is changing rapidly or the shareholder dispute itself has affected performance.
Follow the value bridge
A useful way to approach these questions is to build a clear bridge between the alleged conduct and the resulting value of the shares.
For each material issue, the key questions to address are the following.
1. What does the evidence show?
Before debating valuation approaches, multiples or discount rates, the expert needs to establish whether he has access to the information needed to assess the disputed conduct required for the valuation.
What do contracts, accounts, bank records, board materials, management information and other contemporaneous evidence establish about what happened?
Access to that information cannot always be taken for granted. A controlling shareholder may control management accounts, forecasts, customer information or documentation relating to disputed transactions. A minority shareholder may not possess such information.
The Enterprise Chamber has in the past allowed a temporary director to ensure that the valuation expert could obtain the information required.
2. What was the financial effect?
An allegation however does not automatically become a valuation adjustment. Rather the economic effects need to be identified and quantified.
The second question is whether the conduct affected revenue, costs, margins, assets, liabilities, financing, working capital and investments.
3. Is the effect temporary or permanent?
The third question is whether historical performance should be normalised, and whether future performance and risk profile have changed because of the conduct.
The answer to this question determines how the effect should be reflected in the valuation, temporary or permanent.
4. What does this mean for enterprise and equity value?
Once the financial consequences of the alleged conduct have been established the expert can move to estimate the enterprise value, equity value and ultimately the price of the shares.
Issues must be distinguished between those that genuinely matter economically from those that may be heavily disputed but have little effect on value. A long list of contested issues does not necessarily mean a long list of material value drivers.
Why early valuation assessment matters
The expert's role is to consider the financial consequences of the conduct and assess what that conduct did to the business and what that means for value. The expert does not aim to determine whether shareholder conduct was legally wrongful. That remains a legal question.
For shareholders and their lawyers, there is value in identifying the material financial issues before positions become entrenched.
An early valuation assessment can help determine whether because of the conduct:
• historical performance needs to be normalised;
• future performance needs to be adjusted; and
• risks have changed.
Further it helps to better understand:
• what the appropriate valuation date is;
• what financial evidence will be required;
• how contemporaneous evidence will be seen from an expert point of view; and
• which disputed issues may ultimately make little difference to the share price.
Valuation: a route to resolution
Valuation does not necessarily need to be the final stage of a contested shareholder dispute.
Often, the shareholders disagree as to whether they should separate. In other cases, the shareholders already agree on separating and the remaining issue is simply at what price.
Article 2:343c BW allows a shareholder and one or more co-shareholders or the company, where they agree on the transfer of the shares but not yet on the price, to ask the Enterprise Chamber to determine that price.
Looking ahead
Based on the strong first-year uptake, Oaklins expects WAGEVOE-related cases to increase significantly over the next two years as lawyers, shareholders, experts and the Enterprise Chamber gain further experience with the regime.
As more cases are decided, greater predictability should develop around shareholder conduct, valuation, expert evidence and price determination. We therefore expect WAGEVOE increasingly to become the natural route for serious shareholder disputes where separation is ultimately required.
Conclusion
WAGEVOE has created a more integrated framework for resolving shareholder disputes, bringing the question of separation and the determination of share value much closer together.
The strong first-year uptake suggests that the procedure is meeting a real need. As the number of cases increases and practice develops, Oaklins expects WAGEVOE increasingly to become the natural route for resolving shareholder disputes where separation is required.
For valuation, this means greater focus on the financial reality behind the dispute. The key question will often be not simply what the company is worth, but how the conduct in dispute has affected sustainable earnings, future prospects and risk, and what that means for the value of the shares.
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