7.2.5.2 Independent judgement

Independence in the duty is to exercise independent judgement in section 173 must not be confused with the independence of NEDs, which is based on the independence definitions with the corresponding lists of independence criteria as described in subsection 7.2.4. It applies to executive directors and NEDs. Here, the duty to exercise independent judgement is a positive formulation of the director’s duty not to fetter the exercise of his discretion. This duty does not prohibit a director from seeking and acting on the advice of others. In some situations it even infringes their duty of care if they take a decision without appropriate advice. However, a director must take his own decision and cannot regard the advice as an instruction. Furthermore, this duty leaves room for the board to delegate functions to non-board members (Davies et al. 2008: 16.37).