1. In my inaugural lecture, delivered last Thursday, I argued that the Supreme Court and the Enterprise Chamber should provide guidance to corporate fiduciaries for future conduct in their rulings whenever possible and useful (Step 2), not just decide the case before the court in a fair manner (Step 1). I used three dark areas of Dutch corporate law to illustrate my point, including the danger zone of director liability. In that area, the Supreme Court to date hasn't been really inclined to take Step 2. Coincidentally, the court issued an opinion yesterday in a director case where it could have provided more guidance, but chose to dismiss the case simply by an order (i.e., without any elaboration of the reasons why, a so-called section 81 RO case). For what it's worth, the caption of the case reads as follows.
Ondernemingsrecht. Art. 2:8 en 2:9 BW. Voorovereenkomst tot van de hand doen activa van vennootschap gesloten tijdens surséance van betaling buiten medeweten aandeelhouder. Aansprakelijkheid bestuurder vennootschap jegens aandeelhouder? Heeft aandeelhouder recht op vergoeding van door hem in zijn hoedanigheid van aandeelhouder geleden schade? Schending plicht tot ambtshalve aanvullen rechtsgronden? Bewust profiteren van de wanprestatie van een ander? (81 RO).
A missed opportunity IMHO.
2. Let's turn to the States. In last year's post No. 133 I wrote about the legal entity concept, triggered by a case pending before the SCOTUS about campaign-finance, in which the opinion was issued January 21. I'm not going to digg into it here, but instead refer to ProfessorBainbridge.com where the case was discussed in extenso, with tons of links to other SCOTUS watchers. For even more input check-in here.
3. And then there's the Delaware Chancery Court, that issued interesting opinions on January 14, 2010 re Robotti & Company, LLC v. Liddell (HT Francis Pileggi) and on January 11, 2010 in In re The Dow Chemical Company Derivative Litigation (id). Both opinions show that courts are in fact able to decide cases by using a consistent legal framework, that gives corporate fiduciaries a fair amount of ex ante guidance (on what the law expects of them in terms of conduct and how the courts will decide cases in this respect). It's not a case of "can't do", but of "don't wanna". Now please read 1. again.
4. In post No. 8, I wrote about the Commitee De Wit, the investigative committee composed of politicians that is diving into the reasons why the financial crisis emerged the way it did and what should be done to prevent such a crisis from happening again. Lastweek, several hot-shots were heard including former Ministry of Finance and current ABN Amro CEO Gerrit Zalm. Unlike the others who were on the stand last week, Zalm was pretty nice on Nout Wellink: the president of De Nederlandsche Bank, accused by many - with hindsight, that is - of not having reacted adequately (I'm being polite here) when things turned ugly in the fall of 2008.
Wellink will be invited in the coming period to share his views with the committee, so he'll get his chance to get even. But still, he seems to have tripped between a rock and a hard place.
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