Lecture de Leon Yehuda Anidjar sur le devoir de prudence et son intérêt dans le contexte de la COVID-19 : « A Firm-Specific View of Directors’ Duty of Care in Times of Global Epidemic Crisis » (Oxford Business Law Blog, 20 mai 2020).
Extrait :
In a recent paper, I discuss the directors’ duty of care in times of financial distress from a global perspective and focus on directors’ roles in different types of SMEs. I argue that while the economic crunch of the years 2007–2009 was a direct result of large governance deficiencies (Bruner, 2011), which generated various reforms that reinforced the monitoring role of directors, the current crisis will highlight the significance of the directors’ managerial roles. Accordingly, we can expect jurists and policymakers to design numerous regulatory reforms that will reinforce their advisory role in a fashion that will assist them in tackling the severe consequences of our current times. Moreover, supervisory authorities may decrease the regulatory burden imposed on directors to allow them to invest considerable managerial resources for supporting the survival of companies (as Enriques demonstrates concerning corporate law, and Chiu et al point out regarding financial regulation).
Furthermore, I argue that the civil law on directors’ duty of care provides boards with a broader scope of discretion to confront the challenges associated with COVID-19 than the Anglo-American law. Delaware corporate law, for instance, posits that since directors, rather than shareholders, manage the affairs of the corporation, they should be protected by the business judgment rule. However, a recent empirical study demonstrated that challenges to business judgment in English and Welsh cases have been increasingly successful from the mid-nineteenth century until the present, with a marked increase in legal liability since 2007. This indicates that the proposition that English courts will generally not review directors’ business decisions is incorrect (Keay et al, 2020). In contrast, under the law applicable in countries such as Germany, France, Italy, and the Netherlands, the standard of care cannot be determined absolutely: it must address the specific situation for which the question of the due diligence of organ dealing arises. Accordingly, this standard is at the same time objective and relative, ie, a company comparable in size, business, and the economic situation shall serve as a model (as illustrated by, the Cancun ruling of the Dutch Supreme Court).
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