Directors' liability (IVOR nr. 101) 2017/3.1.2:3.1.2 Research question

Directors' liability (IVOR nr. 101) 2017/3.1.2

3.1.2 Research question

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

In accordance with the foregoing, I will be assuming that Dutch courts apply ‘serious reproach’ to three theoretically distinct sets of legal disputes: directors’ liability to the company (art. 2:9 DCC), third parties such as creditors and shareholders (art. 6:162 DCC) and the estate in the event of bankruptcy (art. 2:138/248 DCC). This is not to say that claimants may strategically base their claims on more than one legal ground and amass the set of legal facts to increase the likelihood of a legal decision in their favour.

The research question is threefold:

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How can ‘serious reproach’ be formalised?

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Which legal case factors – contextual and behavioural factors – can be deduced from the analytical framework of ‘serious reproach’ and are most influential for adjudicating directors’ liability?

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What is the extent of consistency in legal decision-making based on the legal case factors – contextual and behavioural factors – obtained from the analytical framework of ‘serious reproach’?

To explore the research questions, I will qualitatively and quantitatively analyse a set of court decisions.1 I will first perform a qualitative analysis of several land mark cases in which the Supreme Court has presumably applied the standard of ‘serious reproach’. This legal study will serve as a stepping stone to the construction of a simple legal decision model with ‘serious reproach’ providing the basis on which a director may be deemed personally liable. Dutch courts arguably apply this simple model in managing the complexity of individualised, context-based, case-by-case-judgments. I will test the simple model quantitatively, taking into consideration multiple relevant legal case factors in accordance with the ‘all relevant circumstances’ doctrine prevalent in Staleman v. Van de Ven. In so doing, I intend to combine bivariate analysis and logistic regression analysis to determine the legal case factors that are most influential in evaluating directors’ liability. Bivariate analysis provides insight into the independent effect of each of the predictor variables on directors’ liability. The bivariate analysis will be followed by a logistic regression analysis with the aim of determining the combined effects of the most relevant legal case factors on the case outcome, whether the director was found personally liable or not. Moreover, I will determine the predictive value of these legal case factors in order to draw conclusions about the consistency of legal decision-making.

It should be noted here, perhaps superfluously, that I am focusing this research on legal case factors that have occurred in court decisions, hence making use of case factors that have already been legally interpreted by courts. After all, the purpose of this research is to understand directors’ liability legislation as manifested in extant legal decisions.2

Deze functie is alleen te gebruiken als je bent ingelogd.