8.7.3 Differences and similarities between the boardroom and the court in chambers

In my dissertation I have made an explicit distinction between biases in the boardroom and biases in the court in chambers. This distinction initially stemmed from the subdivision of chapters based on my original publications. However, following my research into the various biases, the distinction may seem justified in practice but is not imperative. Certain biases, like hindsight bias and the Knobe effect, seemingly play a role in judicial decisions because there is a direct link with the court’s review. But this does not mean that these biases don’t play a role inside the boardroom. An example of this is the evaluation of management and supervision. Here too, directors and members of the SB look back at prior decisions and can assess the quality of these decisions and the decision-making process. Hindsight bias can play a role in those instances. Conversely, implicit gender bias can for example play a role in the court in chambers where I have discussed this bias in the context of the boardroom. The judge can also have certain social constructs with respect to the differences and similarities between men and women. In a manner similar to that of directors and members of the SB, the judge can for example be influenced by androcentrism and media images of men and women. It is possible that this subsequently becomes a consideration in the judicial decision. What I mean by that is that my review of various biases in the context of ‘the boardroom’ or ‘the court in chambers’ does not mean that the bias occurs only in that specific setting. The same applies, for example, tot the metaphorical application of the DST to the boardroom. To a certain extent, the DST can also be applied metaphorically to the council chamber. However, the composition of the multiple council chamber is different per session. Can we really speak of a team the way we can with a BoD or an SB? This can inter alia stand in the way of mapping the synchronizations. Also the peturbations and attractors at the council chambers are different and in my opinion less influential than at the boardroom. Judges judge more autonomously than directors decide. The BoD is more influenced by, for example, the Works council, the SB, hostile takeover, and so on. This is not so much the case with judges. Metaphorical application of the DST in the council chamber is in my opinion possible to a certain extent, but deserved further research. The fact that I only applied the DST metaphorically to the boardroom does not imply that a metaphorical application of the DST to the council chamber is impossible. Not does this apply for the subdivision of the biases. The fact that I discuss the Knobe effect in the context of the council chambers does not mean that the BoD cannot be influenced by the Knobe effect.

The different expressions of biases, either inside the boardroom or inside the judges’ chambers, are also linked to the differences and similarities between directors and members of the SB on the one hand and judges on the other, as I discussed in par. 1.1. Both groups are professional decision-makers. For judges, fact-finding is paramount to a different (higher) degree than for directors and members of the SB. Establishing the truth is precisely one of the core tasks of a judge. Before the start of my research there was, and upon completion of the research there is, an expectation that judges form their opinions in a calmer manner and with more respect for legal certainty and the unity of justice. If they are at least aware of the possible impact of biases that jeopardise and may obscure their judgements, they will take steps to this end. By steps, I am referring, for example, to applying mitigation techniques. This should also be the expectation of society, given the importance of the status of judicial decisions. Judgment and decision-making by directors and members of the SB involves decisions and judgments of a different ‘status’. These decisions and judgments are more often characterised by speed, by many different influences and interests, and by uncertainties such as taking high-risk business decisions. Hence, it seems obvious that biases can play a bigger role here than in the courtroom. This, however, may only be the case if judges actively assume their assigned responsibilities. The picture I get from my research is that they are doing this to a certain extent.

Furthermore, there is another difference between directors and members of the SB. In light of the duties carried out by members of the SB – in short: supervising –, it is likely that they are more often faced with prior decisions and assessing these prior decisions than directors. The biases that members of the SB may face in this context are similar to the biases that the judge may encounter when he undertakes his review and forms his opinion.

In conclusion, it can thus be said that the biases which I have discussed and addressed may in theory occur in equal measure among directors and members of the SB on the one hand and judges on the other. However, practice may prove otherwise, given the responsibility placed on judges for reasons of legal certainty and its relation to the judicial decision, and in light of the specific task of members of the SB.