Directors' Liability Chronicle 2022: Trends and Developments

In recent years, directors of national and international companies have been increasingly confronted with liability claims and legal proceedings. Directors are being held accountable more swiftly and frequently for the responsibilities they bear. This trend is being amplified by society’s growing focus on Environmental, Social, and Governance (ESG) aspects, along with other societal and technological developments.

Marie-Claire Leijten, Barbara Elion, and Jochem Wind discuss these developments in the Directors’ Liability Chronicle 2022, which has been published this week in the annual compilation by the Dutch Corporate Litigation Association. The chronicle addresses the following topics:

• General developments in the realm of ESG and turbo-liquidation.
• Internal directorial liability when a director is held accountable by the company.
• External directorial liability when a director is held accountable by a third party (e.g., a creditor).
• Directorial liability in cases of bankruptcy.
• Directors’ liability for obligations arising from social security and tax legislation.

Using these subjects as a framework, the authors examine a diverse selection of judgments related to directors’ liability. Beyond typical scenarios such as selectively paying creditors or obstructing recovery efforts, unique and current cases are also discussed:

• Directors invoking the COVID-19 pandemic as a mitigating circumstance for personal liability.
• Directors making miscalculations in the energy market or facing unforeseen increases in fuel costs.
• A director being personally held liable for damages resulting from a European cartel fine.

Thus, the chronicle provides an in-depth and detailed overview of all case law and developments in the field of directors’ liability from the past year.

For inquiries about this topic or specific requests for information, you can contact Marie-Claire Leijten, Barbara Elion, or Jochem Wind.

The Directors’ Liability Chronicle 2022 is part of the Geschriften vanwege de Vereniging Corporate Litigation 2022 – 2023. This compilation is currently only in Dutch available an can be downloaded online through Kluwer Navigator or can be ordered here from Wolters Kluwer.