Ok, here we go again (sigh).
In the latest WPNR (2010/6827, p. 58-64: "Voorontwerp aanpassing enquêterecht"), Fons Leijten adds his comments to the pile of responses generated by the recent draft proposal by the Ministry of Justice, that aims to make some important but relatively modest statutory changes to the right of inquiry. In doing so, he also says a few things about the business judgment rule as proposed by the Ministry of Justice. Unfortunately, (also) Fons doesn't respond to my reasoning in Facetten van verantwoordelijkheid in hedendaags ondernemingsbestuur, Deventer: Kluwer 2009, no. 3.3.3, explaining why it is legally possible and makes sense policy wise to introduce a Dutch business judgment rule in inquiry proceedings. A similar analysis will appear soon in a contribution to the liber amicorum in honour of Huub Willems (authored by Maarten Kroeze and me). Fons mentions it in footnote 37 of his column, but doesn't respond at all due to - how convenient... - insufficient space in his piece to do so. Anyway, I applaud the effort but believe his arguments as to the business judgment rule seriously miss the mark, for reasons I explained there, here and in my dissertation (Rechterlijke toetsing van bestuurlijk gedrag, Deventer: Kluwer 2007, Chapter VI).
Oh, for a nice review of a Delaware Supreme Court footnote discussed at TDT here, go and check Insights - The Corporate & Securities Law Advisor (Volume 23, No. 11, November 2009), citing the post in footnote 3. (HT Joe Christensen). Good stuff.
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