4.1.3.2 Looking at discharge claims empirically using Dutch court cases (2003-2013)

This empirical part of the research is based on a sample of court cases involving discharge claims from 1 January 2003 to 1 September 2013 and is in fact based on the original sample used for the purpose of the research in Chapter 3.1

I have mentioned that, whenever Dutch courts judge that a director had acted in ‘bad faith’, they also likely find a director personally liable. In this part of the research, I will deepen the research by focussing on the relation between directors’ invocation of discharge and the decisoin of the court. I intend to observe if and how a discharge provision can effectively protect directors against personal liability to the company. For this reason, only court decisions involving an assessment of a director’s personal liability are utilised.

I coded 11 cases for the analysis.2 To be able to observe if the discharge provision could succesfully shield a director from personal liability to the company and if so, how and for which litigious actions, I first constructed the pattern of legal reasoning which I assume courts use to review appeals to discharge provisions. The pattern of legal reasoning is predominantly based on several landmark cases and is presented in paragraph 4.3.1.3 Moreover, I aimed to indentify cases in which directors’ ‘bad faith’ was at issue and to understand how courts have coped with these cases. Finally, reference will be made to comparitive insights in order to consider whether the existing legal doctrine of the ‘limited scope of discharge’ is in need of improvement and, if so, whether requiring directors’ ‘good faith’ as a baseline for discharge could be of added value.