Directors’ liability : a legal and empirical study

Following the financial crisis, major debates arise on the use of legal sanction to keep company directors in line with corporate governance. This dissertation positions directors’ liability as a corporate governance instrument; foremost affected by (stakeholders of) the company, significantly affected by courts. Legal (comparative) and empirical research bring strong analyses and arguments to improve directors’ liability legislation and understanding of its potential to induce directors’ good practices. Confronting legal doctrine and positive law with empirical reality, this dissertation sharply identifies when the boundary of directors’ business judgment opens for judicial scrutiny.

Research I demonstrates how directors are affected by directors’ liability risks. Research II identifies factors of when directors are being held personally liable by courts. Research III demonstrates poor corporate governance regarding discharge from personal liability for directors’ bad faith actions by means of an informed shareholders’ resolution. Results, conclusions and propositions are founded on over 50 interviews with executive and supervisory directors, extensive qualitative and quantitative case law analysis (2003-2013), comparative legal analysis (Netherlands-Delaware) and legal and social literature study.