Dispositive Organhaftung: Perspektiven aus Rechtsvergleichung und Rechtsökonomik

Contracting Around Director Liability: Perspectives from Comparative Law and Law & Economics. The business judgment rule is intended to protect managers and board members from personal liability in connection with business decisions, thereby enabling risk-optimized decision-making. However, the requirements of an adequate information base and reasonableness preserve incentives for risk-averse behaviour, and the possibility of erroneous evaluations of business decisions by courts creates further incentives for board members to shy away from risk, yet such risk aversity is inefficient in a diversified shareholder structure. This article examines mechanisms for excluding the personal liability of board members in Delaware (USA) and Switzerland. The policy reference point is the ex ante dispositive liability regime under § 102(b)(7) Delaware General Corporation Law, whereas Swiss corporate law relies on less effective ex post mechanisms. The authors call for the implementation of an opt-out model for liability due to breaches of duty of care, similar - but not identical - to the legal framework in Delaware; such a model could be especially beneficial to high-growth companies. To this end, a policy proposal is developed that should also allow for exemption from liability for gross negligence.