• Kim Ankerstjerne Jensen
  • Jarleivur Hansen
4. semester, Jura, Kandidat (Kandidatuddannelse)
The liability of the board of non-executive directors is a subject that has been given various interpretations by legal authors. It is a subject that attracts significant interests in regards to case law as well as judicial policy remarks. This thesis relates to the subject of the liability of deviance of the board of non-executive directors.

It has been sought analysed whether the liability of deviance of non-exectuve directors has been tightened after the commencement of the new Danish Companies Act. The amendment of the Danish Companies Act of 2009 has been subject to some significant improvements of the law. The preliminary work to the Danish Companies Act has given its view on whether the liability of deviance should be adapted accordingly to the clarification of the duties of non-executive directors. Hereto a deregulation of the duties has been subject to change, and the law operates with the term ”freedom with responsibility”.
This thesis concludes that the legal standard of liability has not been modified as a consequence of the amendment. However, there has been specific areas of the law that has been influenced by the amendment, that demands a more rigid vigilance by the non- executive directors.

In this regard, it is concluded that the basis for a business decision or any other decision for that matter has been subject to a material tightening as any decision requires a qualified ba- sis. Furthermore, it has been analysed and concluded that the business judgment rule is fully acknowledged in Danish Company law conditional on a qualified basis, and that the judg- ment is made in good faith and in the best interest of the company. Moreover, the business judgment extends to situations, where the company is in a financially critical situation. If the board of non-executive directors does try to make an active and operative attempt on rescuing the company from liquidation or bankruptcy, the board of non-executive directors will usually not be held liable in their efforts hereupon.

Further, the rules of procedure has been subject to a relaxation of the rules. The procedure can be used as presentation of evidence in a Court of Law. If the directors liability is mentio- ned in detail, it is consequently easier to clarify the duties each member of the board of non- executive directors can be held liable for. It is also stated that any payment hand out must be reasonable and sound. Any aberration hereupon can be regarded as wrongful and the non- executive director can thus be held liable in regards hereto.
On the other hand, it is concluded that knowledgeable persons or experts can be subject to a modified standard of liability, where their knowledge is especially relevant to the issue.
The elaborative but clarified lawful duties of non-executive directors has in general not made a significant impact on the deviance that is demanded by the board of non-executive directors.
Udgivelsesdato12 maj 2015
Antal sider87
ID: 212007143