Principles of Prevailing Dutch Company Law

Abstract:     
Dutch company law is undergoing tumultuous times. Much is changing in the legislation. For example, a major revision of private limited company law is imminent. The courts are constantly presented with more and more difficult issues. Precisely in such times, there is a need for guiding ideas. The author went searching for them. In this paper, the author has relied on the American theory of pragmatism to help find a method to trace principles of law (Part I). The author then presents nine principles of Dutch company law (Part II). He finally enlists the aid of principles to solve a problem of present Dutch company law (Part III). Based on principles, the author wants to consider taking a fresh look at Dutch company law. While searching, he came to the conclusion that as a result of the increasing importance of ‘duties of care’, it is becoming less important who does and who does not belong to the company. To ensure that courts review the acts of corporate executives with restraint, he considers it important to make a distinction between standards of conduct and standards of liability.

This paper is an adapted and updated version of the text of the oratio the author gave at Erasmus University Rotterdam on 19 December 2008.

Number of Pages in PDF File: 27

Keywords: company law, principles, fiduciary duties, shareholder value, stakeholders, legal personality, agency theory, conflicts of interest, business, judgment rule

JEL Classification: G30, G34, K10, K11, K12, L20, L21

Accepted Paper Series