Liability Risk for Outside Directors: A Cross-Border Analysis
Bernard S. Black
Northwestern University - School of Law; Northwestern University - Kellogg School of Management; European Corporate Governance Institute (ECGI)
Brian R. Cheffins
University of Cambridge - Faculty of Law; European Corporate Governance Institute (ECGI)
Stanford Law School
European Financial Management, Vol. 11, No. 2, pp. 153-171, March 2005
Much has been said recently about the risky legal environment in which outside directors of public companies operate, especially in the USA, but increasingly elsewhere as well. Our research on outside director liability suggests, however, that directors' fears are largely unjustified. We examine the law and lawsuit outcomes in four common law countries (Australia, Canada, Britain, and the USA) and three civil law countries (France, Germany, and Japan). The legal terrain and the risk of 'nominal liability' (a court finds liability or the defendants agree to a settlement) differ greatly depending on the jurisdiction. But nominal liability rarely turns into 'out-of-pocket liability,' in which the directors pay personally damages or legal fees. Instead, damages and legal fees are paid by the company, directors' and officers' (D&O) insurance, or both. The bottom line: outside directors of public companies face a very low risk of out-of-pocket liability. We sketch the political and market forces that produce functional convergence in outcomes across countries, despite large differences in law, and suggest reasons to think that this outcome might reflect sensible policy.
Number of Pages in PDF File: 12Accepted Paper Series
Date posted: March 28, 2005
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