4.3.2.0 Introductie

This empirical part of the research is based on 11 coded cases in which a defendant director raised the protection of a discharge provision and subjected it to judicial review.1 It is the aim of this research to deepen the understanding of the relation between directors’ discharge claims and the courts’ decision: whether the director was held liable or not. I will observe if and how a discharge provision could effectively shield directors from personal liability to the company. Moreover, I wish to identify cases in which directors’ ‘bad faith’ was at issue and to understand how courts have coped with these ‘bad faith’ cases.

In accordance with the pattern of legal reasoning in paragraph 4.3.1, I will focus on the following four variables. The first variable, ‘discharge provided’, involves whether in a given case the court judged that the discharge was granted or that, in fact, the case concerned a non-existent legal act. The second variable, ‘in scope’, involves whether the court determined that the discharge was based on ‘known’ actions that can be derived from the financial statements or were otherwise presented and known to the general shareholders’ meeting. The third variable, ‘subjective bad faith’, involves whether the court found that the director had acted with the intent to do harm. The fourth and final variable, ‘director liable’, involves whether, in a given case, the court deemed the director to be personally liable to the company, despite the director’s discharge claim.