238 Supervisory board as internal corporate conscience.

The supervisory board is uniquely positioned to hold the board internally accountable for its interference with social and ecological interests. In my assessment, the perspectives in Dutch corporate legal theory share the underlying consensus that the supervisory board has a dual responsibility towards (a) the shared aim of durable success for the corporation and specifically towards (b) the constitutional basis of the corporation. The first responsibility for durable success aligns the role of the supervisory board with the general responsibility of the executive board, as well as the proposed responsibilities of shareholders and other stakeholders.1 While members of the supervisory board may have different insights related to the best way for achieving durable success, such an alignment of the responsibilities of the supervisory board and the executive board maintains the overall role of the supervisory board to assist and provide advice to the executive board. Meanwhile, the specific responsibility towards the constitutional basis of the corporation requires the supervisory board to monitor closely the impact of board decisions on all stakeholders, the public interest and the needs and limits of its larger environment. In my view, such monitoring of all constitutional aspects involved in the corporation includes a responsibility to reflect conscientiously on the implications of board decisions as part of an internal corporate conscience.

The allocation of this specific responsibility to the supervisory board suggests that it needs to maintain sufficient distance from the executive board in order to achieve such a critical evaluation of board decisions. Although this distance may be possible within the current one-and-a-half tier board structure, it does suggest that the supervisory board needs to have a more extensive mandate to engage with relevant stakeholders and to participate in internal monitoring systems. Such a mandate could be operationalized through specific sub-committees, particularly the internal audit committee. In addition to a more extensive mandate, the specific responsibility of the supervisory board towards constitutional aspects of the corporation suggests that its composition needs to include experts from a broad variety of backgrounds and experiences. In addition to experienced executives, I would argue that such an expert-based composition requires societal representatives and scientific experts to join the supervisory board, potentially through participation in one of its sub-committees. All in all, this approach to the responsibilities, mandate and composition of the supervisory board maintains its role and capacity as an advisor to the executive board while equally enabling the supervisory board to hold the executive board accountable for its interference with social and ecological interests.