Commercial Aspects of Trusts and Fiduciary Obligations

By Ewan McKendrick | Go to book overview

6
DIRECTORS' DUTIES TO SHAREHOLDERS, EMPLOYEES, AND OTHER CREDITORS: A VIEW FROM THE CONTINENT

Klaus J. Hopt

Directors' duties and liability are topics discussed in many countries. Traditionally, this discussion has been restricted to national corporate law and its effects upon the behaviour of directors and upon recovery of damages from directors by the company itself and possibly by the company's shareholders and creditors.1 Recently, however, there has been a growing interest in comparative law on the subject.2

There are several reasons for this change in perspective. First, better theoretical insight is gained when foreign experiences are taken into consideration. Since the nineteenth century the corporation has become a dominant form of business in all major Western countries and the laws of these countries all face similar problems.3 In this sense, despite many legal differences in the details, there is a common European corporation lawmuch more so than in the field of stock exchange law and securities regulation, where the differences are much more marked. Second, the internationalization of business plays a decisive role in the rise of interest in comparative corporate law. For multinational companies it has become a matter of acute practical concern to know what duties and risks of liability the directors of their subsidiaries abroad will face under the law of the host country, and also the legal conditions for successfully suing the director of a foreign company in which the multinational company has invested or which

____________________
1
For example, for Germany see Lutter and Krieger, Rechte und Pflichten des Aufsichtsrats, 2nd edn. ( Freiburg, 1989); Schmidt-Leithoff, Die Verantwortung der Unternehmensleitung ( Tiibingen, 1989); for Switzerland see Forstmoser, Die aktienrechtliche Verantsvortlichkeit, 2nd edn. ( Zurich, 1987); for these and other countries, see the major treatises and commentaries on corporation law, for example Mertens in Kölner Kommentar zum Aktiengesetz, 2d ed. ( Cologne, 1989), s. 93.
2
Cf. Hopt and Teubner, eds., Corporate Governance and Directors' Liabilities ( Berlin, 1985); Kreuzer, ed., Die Haftung der Leitungsorgane van Kapitalgesellschaften ( Baden-Baden, 1991).
3
Cf. Horn and Kocka, eds., Recht und Entwicklung der Gro×unternehmen im 19. un frühen 20. Jahrhundert [Law and the Formation of the Big Enterprises in the 19th and Early 20th Centuries] ( Göttingen, 1979).

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