!Корпоративное право 2023-2024 / 2013-study-analysis_en
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regard to his own |
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property (diligentia |
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quam in suis). |
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Courts: Directors |
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do not have to |
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possess all |
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possible technical |
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knowledge, but |
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the fundamental |
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knowledge |
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enabling them to |
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identify and |
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prevent impending |
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damage |
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2) Objective |
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Denmark |
1) Simple |
Generally the |
Directors must |
Claimant |
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negligence |
same standard, |
ensure that the |
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standard |
also with regard to |
agent is |
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2) Generally |
employee elected |
competent and |
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and non-executive |
are required to |
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objective; see |
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board members or |
monitor the agent |
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Calypso case: |
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directors who do |
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figurehead |
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not receive |
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director (semi- |
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remuneration. |
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skilled worker who |
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did not actively |
But higher |
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participate in the |
standard of care if |
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running of the |
the relevant |
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company and |
breach is in a field |
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signed documents |
in which the |
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whenever he was |
director holds a |
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asked to do so), |
professional |
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but professional |
qualification |
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knowledge or |
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qualifications |
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increase the |
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required standard |
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Estonia |
1) The care that a |
The required level |
No case law |
Director |
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reasonable |
of care depends |
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person in the |
on the area of |
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same position |
activity and |
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under the same |
operating range of |
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circumstances |
the company; the |
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would employ |
wider the |
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(standard of an |
operating range |
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average, |
and the more |
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reasonable |
complicated the |
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business |
area of activity, |
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leader)104 |
the stricter are the |
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2) Objective |
requirements. |
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Furthermore, the |
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standard of care |
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depends on the |
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background, |
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104 It is noteworthy that directors in Estonia have been found in breach of the duty of care for taking unnecessary business risks (Supreme Court case no 3-1-1-89-11 [2011]: taking risks that exceed the company’s everyday business activities and that are contrary to the supervisory board’s guidelines are unjustified).
81 Directors’ Duties and Liability in the EU
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qualification and |
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obligations of the |
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director. |
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Finland |
1) Behaviour that |
The division of |
Directors may |
Generally the |
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would be required |
tasks between |
delegate, but the |
claimant, but Ch. |
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from a careful |
directors may be |
liability remains |
22, s. 1(3) |
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individual in the |
relevant when |
with the directors, |
provides for a |
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specific situation |
assessing the |
who have the duty |
reversal in |
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2) Objective |
extent of the |
to monitor and |
particular |
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directors’ liability: |
ensure that the |
circumstances: ‘If |
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one director may |
delegated tasks |
the loss has been |
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bear a greater |
are properly |
caused by a |
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responsibility than |
discharged; |
violation of this |
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another |
similarly, the |
Act other than a |
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directors must |
violation merely of |
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‘monitor’ each |
the principles |
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other; case law |
referred to in |
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exists where |
chapter 1 [general |
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directors have |
principles of |
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been found liable |
equality or loyalty |
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for not arranging |
or general |
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for a proper |
mismanagement], |
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bookkeeping |
or if the loss has |
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system105 |
been caused by a |
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breach of the |
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provisions of the |
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articles of |
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association, it |
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shall be deemed |
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to have been |
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caused |
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negligently, in so |
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far as the person |
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liable does not |
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prove that he or |
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she has acted |
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with due care) |
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France |
1) Standard of a |
Yes; for example, |
Directors have |
Generally, |
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reasonably careful |
the care required |
been found liable |
claimant, but |
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and diligent |
from the director |
for lack of |
rebuttable |
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director |
of a listed |
monitoring |
presumption if the |
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2) Objective, but |
company is higher |
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director |
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than that of the |
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participated in a |
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can be raised if |
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director of a small |
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faulty decision of |
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the defendant has |
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family-owned |
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the board |
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specific |
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business |
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knowledge and |
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experience |
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Germany |
1) s. 93(1): The |
Yes, the directors |
Delegation is |
Director, s. 93(2) |
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care of a diligent |
have to meet |
permissible, but |
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and conscientious |
higher standards if |
the management |
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manager |
they act within |
board is required |
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105 Case KKO 2001:85. The chairman of the board claimed that he had agreed with another director to take charge of the bookkeeping. The Supreme Court did not free the chairman from liability. The control over accounts appropriately organised is specifically mentioned in the law. On the other hand, KKO 1997:110 seems to entitle directors to trust that matters they have delegated between themselves are properly taken care of unless they have reason to believe that this is not the case (the case concerned a bank’s irresponsible lending). This case saw the defendant’s position as chairman, preparation and presentation of a matter to the board, and self-interest as incriminating factors. Expertise, on the other hand, was not seen as equally decisive.
82 Directors’ Duties and Liability in the EU
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2) Objective |
their field of |
to provide for an |
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responsibility. |
internal monitoring |
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In addition, the |
system, s. 91(2). |
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Directors are |
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scope and content |
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liable if they do |
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of the duties |
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not select the |
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depends on the |
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agents with due |
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type and size of |
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care, do not |
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business, the |
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instruct or |
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general financial |
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supervise them |
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and market |
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properly |
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conditions etc. |
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Greece |
1) Art. 22a: |
Yes; the diligence |
Failure to monitor |
Director, Art. |
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directors must |
of the prudent |
is considered as a |
22a(2) |
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display the care of |
businessman shall |
breach of the duty |
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a “prudent |
be judged by |
of care |
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businessman” |
taking into |
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account the |
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capacity of each |
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member and the |
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duties that have |
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been assigned to |
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him (Art. 22a(2)). |
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In addition, the |
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standard of care |
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varies depending |
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on, the company’s |
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size, its objective, |
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and whether it is |
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listed or not. |
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Hungary |
1) The care and |
Generally, the |
Directors are |
Director |
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diligence as |
standard does not |
supposed to act |
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generally |
differ across |
personally |
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expected from |
sectors or |
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persons in the |
between listed |
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director’s position |
and non-listed |
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and giving priority |
companies. The |
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to the interests of |
courts can, |
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the company |
however, adjust |
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2) Objective |
the required |
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standard of |
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conduct according |
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to the specific |
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facts of the case. |
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Ireland |
1) A universally |
Yes, factors |
- Barings was |
Claimant |
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accepted |
considered by the |
approved by Irish |
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definition of the |
courts include the |
courts: directors |
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standard of care |
size of the |
are entitled to |
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does not exist in |
company, the type |
delegate functions |
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Irish law; the |
of director and his |
and trust the |
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courts employ a |
or her experience |
competence and |
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flexible, common- |
and qualifications, |
integrity of their |
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sense approach |
the type of duties |
staff to a |
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that is fact- |
undertaken and |
reasonable extent, |
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specific. |
the remuneration |
but the exercise of |
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2) Initially: |
of the director |
the power of |
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delegation does |
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subjective; |
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83 |
Directors’ Duties and Liability in the EU |
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recently the courts |
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not absolve a |
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have moved |
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director from the |
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towards a stricter |
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duty to supervise |
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application that |
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the discharge of |
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promotes |
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the delegated |
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objective |
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functions |
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minimum |
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- It was also held |
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expectations. |
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that a director who |
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However, the |
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relied on his co- |
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courts still take |
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directors ‘with an |
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individual |
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optimism that was |
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circumstances or |
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certainly not |
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the director’s |
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justified, but which |
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knowledge and |
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perhaps was |
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experience into |
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understandable’ |
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account when |
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acted honestly |
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defining the |
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and responsibly |
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standard of care. |
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- Courts |
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emphasise that |
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non-executive |
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directors perform |
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an oversight role. |
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It is sometimes |
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contended that |
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non-executive |
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directors can only |
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be expected to |
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perform this role |
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in relation to |
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information given |
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to them or which |
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they ought to have |
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requested. |
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Italy |
1) The director |
Yes: the standard |
Delegation is |
Director |
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must exercise his |
depends on the |
permissible; the |
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duties with the |
specific role |
director must |
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knowledge, skill |
(natura |
supervise agents |
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and experience |
dell’incarico) |
and ensure that |
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that may |
carried out by the |
the management |
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reasonably be |
director |
and accounting |
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expected by an |
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structure of the |
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average director |
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company is |
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carrying out a |
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adequate. |
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similar role and by |
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Delegated |
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the specific care |
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managers have a |
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and competence |
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duty to report to |
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that the director |
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the board of |
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has |
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directors and |
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2) Objective, but |
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board of statutory |
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auditors at least |
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subjective |
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every 6 month on |
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elements increase |
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the management |
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the standard of |
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of the company |
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care |
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(Art. 2381(5) Civil |
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Code)). The |
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directors are |
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required to make |
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84 |
Directors’ Duties and Liability in the EU |
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informed |
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decisions and |
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may request |
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clarifications on |
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the management |
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of the company |
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(Art. 2381(5) Civil |
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Code) |
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Latvia |
1) Statutory |
Probably yes: |
No case law |
Director |
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definition: in |
what it means to |
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fulfilment of their |
be a prudent and |
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duties, directors |
careful manager is |
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must act as |
evaluated on a |
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prudent and |
case-by-case |
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careful managers |
basis |
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2) The literature |
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argues that this |
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should be |
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interpreted as an |
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objective |
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standard: what |
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can be expected |
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from a prudent |
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and careful |
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manager in a |
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business or in a |
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particular type of |
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business (stricter |
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than the standard |
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of care under |
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general civil law) |
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Lithuania |
1) Civil Code, Art. |
The standard |
Delegation of |
- Art. 6.248(3) |
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2.87: duty to act |
depends on the |
tasks does not |
Civil Code: ‘A |
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with reasonable |
functions |
lead to the |
person shall be |
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care |
performed by the |
exclusion of |
deemed to have |
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Literature: duty to |
defendant director |
liability |
committed fault |
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where taking into |
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act in the same |
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account the |
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way as a |
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essence of the |
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reasonable |
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obligation and |
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person with the |
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other |
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necessary skills |
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circumstances he |
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and experience |
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failed to behave |
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who performs |
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with the care and |
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similar duties |
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caution necessary |
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2) Objective with |
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in the |
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subjective |
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corresponding |
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elements: the |
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conditions.’ |
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standard of care is |
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- According to the |
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that of a prudent, |
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Supreme Court |
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diligent and |
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the claimant must |
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careful person, |
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prove wrongful |
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but in assessing |
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acts (breach of |
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the actions of the |
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director’s duty), |
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director the courts |
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damages, and |
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take into account |
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causality. If these |
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the age, |
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three elements |
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85 |
Directors’ Duties and Liability in the EU |
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education, |
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are shown, fault is |
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experience, etc. of |
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presumed. Then it |
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the director |
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is left for the |
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(however, this |
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director to prove |
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does not mean |
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that there was no |
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that subjective |
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fault (3K-7- |
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elements lower |
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444/2009). There |
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the standard of |
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is a close link |
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care; from the |
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between the |
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case law of the |
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breach of |
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Supreme Court it |
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director’s duties |
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can be inferred |
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and fault, but they |
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that the objective |
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are considered as |
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standard shall |
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two separate |
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serve as an |
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elements. |
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irreducible |
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minimum) |
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Luxembourg |
1) No statutory |
- In determining |
Delegation to an |
Claimant (different |
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definition; case |
the standard of |
Administrateur- |
for responsabilité |
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law and literature: |
care, the courts |
délégué or |
légale under Art. |
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what can |
distinguish |
Directeur délégué |
59(2) for breaches |
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reasonably be |
between a director |
à la gestion |
of the Companies |
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expected of a |
who is paid for his |
journalière |
Act or the articles |
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director of |
services and a |
permissible |
of association: |
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average and |
director who does |
(Companies Act, |
once a breach is |
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reasonable |
not receive |
Art. 60) and |
established, the |
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prudence and |
compensation |
common in |
director is |
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competence |
(see left) |
practice |
presumed to have |
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acting under the |
- In general, the |
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committed a fault) |
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same |
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definition of the |
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circumstances, |
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standard of care is |
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called ‘le critère |
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flexible enough to |
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du bon père de |
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allow the courts to |
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famille’ |
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distinguish |
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2) Objective for |
according to the |
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paid directors; |
facts of the |
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subjective for |
individual case |
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unpaid directors, |
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i.e. the courts take |
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into account the |
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abilities of the |
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particular director |
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Malta |
1) Art. 136A(3)(a): |
The standard |
- The model |
Claimant |
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the degree of |
applies to all |
articles allow the |
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care, diligence |
directors, |
directors to |
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and |
irrespective of |
delegate |
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skill which would |
whether they act |
competences |
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as executive or |
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be exercised by a |
- Art. 136A(2)(b): |
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non-executive |
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reasonably |
the directors are |
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directors |
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diligent person |
responsible for the |
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having both – |
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general |
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a) the knowledge, |
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supervision of the |
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company’s affairs |
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skill and |
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experience that |
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- Some case law |
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may reasonably |
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holds that |
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be expected of a |
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directors are |
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86 Directors’ Duties and Liability in the EU
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person carrying |
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entitled to focus |
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out the same |
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their attention on |
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functions as are |
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the essential |
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carried out by that |
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aspects of the |
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director in relation |
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company’s |
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to the company; |
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business and rely |
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and |
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on the work of |
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b) the knowledge, |
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employees; |
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however, it has |
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skill and |
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been argued that |
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experience that |
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delegation does |
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the director has |
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not completely |
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2) Objective, but |
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absolve the |
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subjective |
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directors from |
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elements increase |
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supervising the |
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the standard of |
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delegates |
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care |
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Netherlands |
1) Case law: a |
Courts consider |
While the |
- Internal liability |
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director is |
all circumstances |
management of |
(s. 2:9): Claimant, |
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required to meet |
of the case, |
the company is |
but the burden of |
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the standard of |
including: the |
the task of the |
proof is on the |
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care which can be |
nature of the |
board of directors |
director to show |
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expected of a |
activities of the |
as a whole, |
that he cannot be |
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director who is |
company, the |
delegation is |
held responsible |
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competent for his |
risks which |
permissible. |
for an unlawful act |
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task and performs |
generally result |
However, where |
adopted by all |
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his/her duties with |
from this type of |
tasks are |
directors (s. 2:9 |
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diligence |
activity, the |
delegated, the |
second sentence) |
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2) Objective |
division of tasks |
board is required |
- External liability |
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within the board of |
to monitor the |
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(general tort and |
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directors and the |
performance of |
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liability in |
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knowledge that |
these tasks. |
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bankruptcy): |
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the director had or |
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Generally the |
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should have had |
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claimant, but the |
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at the time of the |
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burden of proof is |
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disputed action |
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on the directors if |
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they have total |
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control over the |
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company, did not |
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keep proper |
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books or did not |
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file the annual |
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accounts with the |
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chamber of |
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commerce |
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- s. 2:139 |
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(misleading |
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accounts): fault of |
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the directors is |
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presumed |
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Poland |
1) Directors shall |
Benchmark is the |
A clear |
Director |
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exercise a degree |
knowledge and |
assignment of |
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of diligence |
experience |
tasks between |
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proper for the |
relevant to the |
directors can help |
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professional |
size and profile of |
to limit the |
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nature of their |
the company; it is |
exposure of |
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expected that a |
individual |
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87 Directors’ Duties and Liability in the EU
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actions |
director of an |
directors. E.g., if |
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2) Objective; a |
investment fund or |
one director |
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bank has higher |
supervises |
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person who |
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degree of |
financial |
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accepts an |
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operations and |
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appointment as |
experience or |
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the damage |
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director while |
knowledge than a |
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occurred in this |
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lacking the |
director of an |
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field, the |
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relevant |
ordinary company |
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responsibility of |
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knowledge and |
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this manager is |
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experience for the |
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heightened. |
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position may be |
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However, division |
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considered as |
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or delegation of |
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being in breach of |
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tasks does not |
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the standard care |
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lead to the |
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complete |
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exclusion of |
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liability |
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Portugal |
1) Art. 64(1)(a): |
- The standard of |
Duties can be |
Director, Art. 72(1) |
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directors must |
care depends on |
allocated among |
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display the |
the type, object |
the directors (Art. |
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willingness, |
and size of the |
407(1)) or the |
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technical |
company, the |
current |
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competence and |
economic sector |
management of |
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understanding of |
where the |
the company |
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the company’s |
company is active, |
delegated to one |
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business that is |
the nature and |
or more directors |
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appropriate to |
importance of the |
or an executive |
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their role, and |
decision taken |
committee (Art. |
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execute their |
(day-to-day |
407(3)). In that |
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duties with the |
management |
case, the other |
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diligence of a |
decision or |
directors are |
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careful and |
extraordinary |
responsible for the |
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organised |
decision), the time |
general vigilance |
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manager |
available to obtain |
of the |
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2) Objective |
information, and |
performance of |
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the type of |
the delegatees |
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Supreme Court: |
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behaviour usually |
and for any losses |
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the standard is not |
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adopted under |
incurred through |
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that of the ‘bonus |
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such |
acts or omissions |
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pater familias, but |
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circumstances. |
on their part, |
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a manager with |
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- In addition, it |
when, having |
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certain capacities |
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knowledge of |
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varies according |
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… From the |
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such acts or |
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to the functions |
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objective nature of |
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omissions, they |
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performed by |
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the standard of |
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fail to seek the |
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directors in the |
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care results the |
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intervention of the |
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different corporate |
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indifference to the |
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board to adopt the |
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governance |
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personal |
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necessary |
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models available |
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circumstances of |
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measures (Art. |
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under Portuguese |
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the director, |
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407(8)) → |
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law (Latin, |
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namely his |
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oversight liability, |
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German, or Anglo- |
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incapacity or |
but lower standard |
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106 |
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Saxon model) |
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106 (1) In the classic or Latin model, although it is possible to assign certain functions to specific members, all the directors on the board are competent to make business decisions. Thus, the same standard of care applies and the directors are jointly and severally liable for a breach of duty. Internally, they enjoy a right to recourse according to the proportion of their fault (Code of
88 Directors’ Duties and Liability in the EU
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incompetence.’ |
- Directors with |
than that |
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supervisory |
applicable to |
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functions are |
executive |
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generally subject |
directors (duty to |
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to the same |
monitor, examine |
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standard of care |
critically the |
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as executive |
information |
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directors, Art. |
received by the |
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81(1). They are |
other directors or |
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jointly liable with |
agents, and make |
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the managers if |
enquiries if |
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the damage would |
necessary) |
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not have occurred |
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had they properly |
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executed their |
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supervision |
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duties, Art. 81(2) |
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Romania |
1) The standard |
The standard of |
- Delegation of |
The initial burden |
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required from a |
care depends on |
duties to a |
of proof is on the |
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‘good |
the ‘particular |
management |
director to show |
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administrator’ → |
situation’ of the |
committee is |
that he/she acted |
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the level of |
director |
common in the |
with prudence and |
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diligence, |
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one-tier system; in |
diligence. If the |
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prudence, and |
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the two-tier |
director adduces |
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competences that |
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system, duties |
evidence to the |
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would be required |
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can also be |
contrary, the |
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from a good |
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allocated among |
burden may be |
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administrator |
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the members of |
reversed (Court of |
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found in the |
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the executive |
Appeal of |
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particular |
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board or |
Bucharest, |
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business situation |
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delegated |
Commercial |
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of the director |
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- In this case: duty |
Division, no. 167 |
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13.04.2011). |
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2) Objective; no |
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to gather |
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reference to the |
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information (Art. |
See now also Art. |
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knowledge, skill or |
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140) and monitor |
1548 New Civil |
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experience of the |
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the managers |
Code, in force |
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director |
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(Art. 142(2)) |
since 2011, which |
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- Courts: the duty |
provides for a |
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presumption of |
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of inquiry entails |
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fault if the debtor |
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the obligation of |
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does not fulfil a |
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the directors to be |
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contractual |
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proactive and |
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obligation |
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solicit documents |
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(however, it is |
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and information |
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problematic |
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from executives |
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whether the article |
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- The duty to |
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Commercial Companies, Art. 73). The internal division of powers by delegation Code of Commercial Companies, Art. 407(1) and (2)) may have an impact on the internal relationships between the directors and their right to recourse.
(2)In the one-tier or Anglo-Saxon model, the members of the executive board of directors (“Conselho de Administração Executivo”) are bound by the ordinary standard of care. Non-executive directors who are members of the audit committee perform functions similar to those of the audit board in the classic model. As they perform the auditing functions, they are subject to the duty of care and must employ high standards of professional diligence in the interest of the company (Art. 64(2)). Special, analytic and specific monitoring is demanded.
(3)In the two-tier or German model, the members of the executive board of directors (“Conselho de Administração Executivo”) are subject to the ordinary standard of care. The standard applicable to the members of the “general and supervisory board” (“Conselho Geral e de Supervisão”) corresponds to that of the audit committee’s members in the Anglo-Saxon model. However, in relation to matters which, under the law or the articles of association, belong to the executive board, but require the prior consent of the general and supervisory board (Art. 442), the ordinary standard of care is applicable.
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89 Directors’ Duties and Liability in the EU
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monitor does not |
also applies to the |
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require the day-to- |
non-fulfilment of |
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day supervision of |
means, such as |
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management, but |
the duty of care, |
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it is understood as |
or only obligations |
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the more general |
of results; no case |
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task of being |
law applying the |
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familiar with the |
new article to |
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internal operations |
directors’ duties) |
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of the company |
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Slovakia |
1) The director |
No case law on |
No explicit rules |
- Supreme Court: |
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must act with due |
the question of |
on monitoring and |
the claimant must |
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professional care, |
whether factors |
no case law; it is |
prove all elements |
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obtain and use all |
such as the size |
argued that where |
of the claim, but |
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relevant |
and nature of the |
directors delegate |
the issue is not |
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information |
business and the |
functions, the act |
settled and the |
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2) Objective |
function and role |
of delegation will |
prevailing opinion |
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of the director |
have to conform |
in the literature |
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determine what |
to the duty of care |
disagrees with the |
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‘professional care’ |
standards and |
court |
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means in the |
directors have to |
- Literature: the |
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relevant context |
monitor the |
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burden of proof is |
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discharge of the |
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on the director |
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delegated tasks |
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Slovenia |
1) Directors must |
The required |
The ZFPPIPP |
Director, Art. |
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act with the |
standard of care is |
specifies risk |
263(2) |
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diligence of a |
determined by |
management and |
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conscientious and |
considering the |
monitoring |
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fair manager, Art. |
rules, customs |
obligations: The |
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263(1) |
and expertise |
directors are |
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Supreme Court: |
established within |
required to ensure |
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the particular |
that the company |
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this should be |
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profession. It |
provides for |
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construed as the |
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differs according |
adequate risk |
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highest diligence |
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to the size of the |
management |
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of a good expert, |
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company, its |
procedures, which |
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and not the |
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activities and |
shall include the |
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diligence that is in |
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particular |
determination, |
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any case required |
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situation, as well |
measurement or |
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from reasonable |
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as the allocation |
assessment, |
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persons in |
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of responsibilities |
management and |
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commercial |
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among the |
monitoring of |
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transactions |
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directors. |
risks, including |
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2) Objective |
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reporting on the |
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risks to which the |
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company is or |
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could be exposed |
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in its operations |
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Spain |
1) Care of an |
The standard of |
Outside directors |
Claimant (but s. |
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orderly |
care depends on |
are not liable for |
237 may be of |
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businessman; |
the type of |
the executive |
assistance if |
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expressly |
business activity, |
management, but |
liability is based |
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regulated: duty to |
whether or not the |
they are required |
on a decision by |
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be informed |
company is listed, |
to select the |
the whole board, |
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2) Objective |
the position of the |
agents carefully, |
see below 2.6) |
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director held on |
instruct and |
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90 Directors’ Duties and Liability in the EU