ABSTRACT

The business judgment rule, as it has been traditionally understood, seems to be based on three underlying assumptions that make this rule economically desirable. First, directors are subject to a credible threat of being sued for a breach of the duty of care. Second, the primary role of the corporation is to maximise shareholder value. Third, shareholders want the directors to pursue those investment projects with the highest net present value regardless of their volatility. This article challenges these assumptions and argues that the business judgment rule might not be desirable in some jurisdictions outside the United States and even in many US corporations. Moreover, it points out that the implementation of the business judgment rule may actually create new, unintended costs. By re-examining the law and economics of the business judgment, this article draws conclusions about the most efficient way to implement the business judgment rule across jurisdictions.

摘要

传统上已经理解，业务判断规则似乎基于使该规则在经济上可取的三个基本假设。首先，董事有可能因违反谨慎义务而受到起诉的可信威胁。第二，公司的主要作用是最大化股东价值。第三，股东希望董事们追求其净现值最高的投资项目，而不论其波动性如何。本文对这些假设提出了挑战，并认为在美国以外的某些司法管辖区甚至许多美国公司中，可能不希望使用商业判断规则。此外，它指出，业务判断规则的实施实际上可能会产生新的意外成本。通过重新审查业务判断的法律和经济学，