4.6 Concluding remarks

In this research, I have focused on the outer boundaries of the protection offered by the Dutch concept of discharge in shielding serious reproachable director conduct from liability by invoking comparative and empirical insights. Based on the comparative and empirical interpretation of case law, I came to the conclusion that, when considering the protection provided by a waiver of rights, a director’s ‘subjective good faith’ serves as a baseline, either explicitly (in Delaware) or implicitly (in the Netherlands). With specific reference to the Netherlands, I proposed that within the doctrine of limited scope, the validity of the discharge should depend on two legal tests: (1) good morals and public order and (2) reasonableness and fairness. This interpretation favours a contextualised review of discharge claims in which a director’s ‘subjective good faith’ constitutes a basic requirement for granting a discharge legal validity. I argued that it is preferable to explicitly indicate the essential nature of ‘subjective good faith’ by means of a statutory provision in order to better promote good corporate governance. At present, there is a belief that Dutch courts shield directors from personal liability even when they act in ‘subjective bad faith’ as long as these litigious actions were ‘known’ to a company’s general shareholders’ meeting. It is time to disparage such beliefs and further conceptualise the notion of discharge in the light of good corporate governance.