32 The courts as the remedy

Finally, the reticent role and limited room for manoeuvre that the courts have when assessing remuneration ensures that not too much hope can be placed in the judiciary to resolve the problems surrounding executive compensation. It is not likely that the courts will be prepared to adapt the amount of remuneration due to the fact that this remuneration ought to be based mainly on external reference points. Nevertheless, the lack of attention paid to internal pay relationships could lead to a closer examination of how the remuneration was determined. As the PCM decision shows, there is also the chance that the Enterprise Chamber in certain circumstances will assess the influence of remuneration agreements on how the company operates, particularly if the nature of the remuneration incorporates the risk of conflict of interests. In such cases it must be demonstrated that the chosen remuneration structure encompasses the danger that the private interests of executives would be given priority over the interests of the company that they should be serving. More insight into the dangers of the advance guidance of executives could result in reasons to intervene earlier. Despite the above, the significant degree of discretion held by the supervisory board when determining executive compensation ensures that the role of the courts will remain modest and be limited to excesses. The structural flaws in the determination of remuneration will not be tackled by the courts. As Judge Coleman said in 1939: