3.3.2 The data: characteristics and selection

Analogous to the legal analysis in paragraph 3.2, this quantitative analysis is based on a sample of court decisions involving directors’ liability based on articles 2:9, 6:162 and 2:138/248 DCC.

Cases were collected using the online database of ‘Jurisprudentie Onderneming & recht (JOR)’, a legal journal specialising in Dutch company law. Using the keyword bestuurdersaansprakelijkheid [directors’ liability], the search provided a total number of over 300 court decisions in the period from 1 January 2003 to 1 September 2013.1 It was decided not to include court cases that had been published too recently, mainly because these cases may not yet have included a final judgment on a director’s personal liability.

The sample included court decisions from the District Courts, Courts of Appeals and the Supreme Court in which the courts ruled on the personal liability of a director. To increase the likelihood that the court cases involved a final judgment, I checked the online database of ‘Rechtspraak.nl’, a government-owned database, and searched each case individually. For some cases, I found that one of the parties had indeed appealed, and opted to include these cases in the statistical analysis instead. In several Supreme Court cases, the court did not decide on the directors’ personal liability but referred the cases to lower courts for final judgment. I requested all these judgments. Some courts were willing to provide assistance.

The cases were read and manually filtered so that only relevant cases were retained for statistical analysis. Whenever cases were excluded, they were rejected for the following reasons:

Applying these criteria, the sample was limited to 119 court decisions.2 In 24 of these decisions, the court differentiated the liability analysis in order to target specific directors individually involved in the given case. As a result, the 119 court decisions enabled me to code 158 cases for the purpose of statistical analysis, allowing the statistical sample to comprise 158 coded cases from 1 January 2003 to 1 September 2013, all involving a judgement of a director’s personal liability based on articles 2:9, 6:162 and 2:138/248 DCC.

Of the 158 coded cases, I found that in 104 cases (66%), courts ruled that directors were liable. These rulings were legally based on art. 6:162 DCC in 39% of the coded cases, on art. 2:138/248 DCC in 38% of the coded cases and on art. 2:9 DCC in 23% of the coded cases. In Figure 1, I further distinguish the rulings of ‘liable’ or ‘not liable’ in the158 coded cases into categories where directors displayed ‘subjective bad faith’ and’ ‘lack of good faith’. The illustration shows that, for the larger part, a director was held liable due to action in subjective bad faith (57%). Figure 2 displays the sample of 158 coded cases in chronological order. The trend line shows a slight increase in the number of directors being found personally liable.