Rechtsvergleichende Überlegungen zur Business Judgment Rule

The famous business judgment rule (BJR) that emerged in the US in the early nineteenth century, has been adopted in recent years, in one form or another, by several jurisdictions in Europe. This article provides a comparative analysis of the different models of the BJR and its basic elements and rationales in the US, Germany, Austria, Switzerland and Liechtenstein. The article outlines how the approaches adopted in those jurisdictions differ with regard to the scope of the rule, the requirements that directors must satisfy in order to be protected, and the burden of proof for these requirements.

Despite a frequent lack of clear definitions or indeed of an explicit formulation of a BJR, there is a consensus that the courts in these countries appreciate that any review of decisions taken under conditions of uncertainty must acknowledge that the decision-maker has to rely ex ante on expectations and probabilities, and that a full ex post review may suffer from hindsight bias.

Last, but not…