4.5.1 Perspectives on judicial review of discharge claims

In this research, empirical findings revealed that Dutch courts tend to prevent a waiver of rights from protecting directors acting in subjective bad faith.

To understand why Dutch courts tend to prevent a discharge from pertaining to the ‘subjective bad faith’ actions of directors, I have provided two perspectives on the ‘limited scope of discharge’. The first perspective is the more common perspective and requires examination of the logic of ‘known action’ when reviewing discharge claims (paragraph 4.3.1). The second perspective, in which I took the empirical findings in paragraph 4.3.2 as the starting point and reinterpreted Ellem Beheer and De Rouw, considers the contextual circumstances of a case and takes a director’s ‘subjective good faith’ to serve as a guide for reviewing discharge claims. In the second perspective I adopted ‘known’ action as one important circumstance, allowing other relevant circumstances to play their part. Building on the second perspective, I will now discuss why it is desirable to expressly understand the doctrine of ‘limited scope’ in relation to a director’s ‘subjective good faith’ as a baseline, a practice that I argued is currently implied in case law.