Hvilken betydning vil indførelsen af præsumptionsansvar overfor ledelsen i danske børsnoterede banker have?

Louise Sofie Pedersen

Student thesis: Master thesis

Abstract

Each time major businesses collapse, the question of liability for the management of the companies aris-es. In this context, it is being discussed whether the existing rules of liability and case law, to a reason-able extent, punish dereliction of duty and motivates to provide a sound effort. The Minister for Economic and Business Affairs assembled a committee for the modernization of the Danish company law. The committee discussed the introduction on reverse onus of proof, but found that the current regulation of tort law was sufficiently to punish dereliction of duty. The management’s duties and responsibilities are widely regulated the Danish Company Act and the Danish Financial Business Act. The management has an obligation to lead the bank in accordance with the interests of the bank, the stakeholders and the shareholders. A director of a company must avoid a situation in which he has, or can have, a direct interests that conflicts, or possibly may conflict, with the interest of the company. By using game theory, this paper examines the methodical process that a change in the onus of proof of liability, leads to a change in the expected payoffs, which will lead to a change in the player’s incen-tives, which finally will lead to a change in social optimum. The analysis is conducted I three ways. First by analyzing how the players choose in the case of the cur-rent rules of onus of proof, secondly by analyzing how the players choose in the case of the introduction of reverse onus of proof in the basis of liability, and third how the players choose in the case of the in-troduction of reverse onus of proof of all the liability conditions. This paper shows that the introduction of reverse onus of proof regarding the grounds of liability to-wards management in the listed Danish banks, only affects the basis of liability. By introducing reverse onus of proof, management will act responsible and choose low risk. This paper therefore presents two initiatives on such improvements of the legislation in the Danish bank sector. These initiatives are 1) introduction of reverse onus of proof regarding the basis of liability, and 2) prohibit the usage of voting- and ownership limitations in listed Danish banks. While initiative 1) seeks to unite the interests of the management and the shareholders, and thereby limiting private bene-fits, initiative 2) seeks to limit the free-rider problem.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2011
Number of pages86