| Abstract [eng] |
This master thesis compares different models of the business judgment rule (the BJR), as a standard of review for personal liability of members of a company's management body, that exist in various legal systems and model acts. The thesis reveals advantages and problematic issues that various versions of the BJR possess. The first part of the thesis reveals that the roots of the BJR lies in the case law of the United States of America (the US). This part also explains that the main function of the BJR. Lastly, various theories for the need of the BJR are presented. The second part provides an overview of the main versions of the BJR that exist in the US legal system, i.e. versions of the rule that exist in Delaware, the American Bar Association’s Model Business Company Act and the American Law Institute’s Principles of Corporate Governance. This part reveals the US provides substantial deference to the decisions the members of the company's management body. In addition, instances when the BJR is not the appropriate standard of review are examined. The third part analyses the BJR that exist in Germany and explains its peculiarities. It is revealed that the Germany’s model of the rule is much more rigorous than that of the US. Lastly, Germany’s judicial viewpoint on the necessary element of the BJR - the “business decision", is evaluated. The fourth part examines the European Model Company Act’s version of the BJR. Firstly, the influence of the "enlightened shareholder value" theory to the rule is determined. Secondly, the exceptions of the rule that at laid down in Section 1(5) of Chapter 10 and Section 16 (1) of Chapter 15 of the act are analysed and assessed. The purpose of the fifth part is to analyse in detail the BJR that currently exist in the Lithuanian legal system. This part examines how all elements of the rule are (or should be) understood in the Lithuanian legal system. In addition, an analysation of the case law is performed, and the minimum requirements that the Lithuanian courts demand for the decision-making process and the business decision itself are revealed and critical evaluated. Lastly, existing issues, which lead to the objectives sought after by implementing the BJR into the Lithuanian legal system to be not fully realised, are addressed. |
