ASPECTE TEORETICO-PRACTICE PRIVIND REGULA BUNEI JUDECĂŢI ÎN LUAREA DECIZIILOR DE AFACERI (BUSINESS JUDGMENT RULE) ŞI APLICABILITATEA ACESTEIA ÎN LEGISLAŢIILE DIFERITOR STATE
THEORETICAL AND PRACTICAL ASPECTS OF BUSINESS JUDGMENT RULE AND ITS APPLICABILITY IN DIFFERENT COUNTRIES

Summary/Abstract: This paper analyzes the Business Judgment Rule, as a case law-derived doctrine of corporate governance, developed by Delaware courts. The business judgment rule, as a codified legal institution, has spread over the last six or seven years to a number of European jurisdictions. Also, there are some european countries where courts apply this rule even it isn’t codified. The business judgment rule is a presumption that, in making a business decision, the directors of a corporation, acted on an informed basis, in good faith and in the honest belief that the action was taken in the best interests of the company. Regarding the burden of proof, there are two models. The first one (Germany, Austria, Croatia, Greece, Portugal) establish that directors, as defendants, shall prove that the decision was entirely fair. The second one (USA, Romania, Denmark, Finland, Sweden) provides that the claimant (shareholders) shall demonstrate that the directors did not act on an informed basis, in good faith and loyalty. If this presumption is not rebutted by the claimant, the courts will respect the directors’ business judgment. Also, this paper analyzes the origins of BJR, its applicability in Euopean countries, and the conditions this rule shall meet. Regarding Republic of Moldova, there is a bill on amending the Civil Code which contains among others, the codified Business Jugmenet Rule.

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