Raportul dintre standardele de conduită şi standardele de evaluare a conduitei administratorilor societari
The liaison between standards of conduct and standards of review applicable to corporate directors

Summary/Abstract: Fiduciary relationships are created when one person offers another the trust to undertake in the name and on behalf of the beneficiary discretionary actions which are not monitored permanently. The risk involved is that the fiduciary could prefer to pursue his own interests when these are divergent with those of the beneficiary. The role of the law of fiduciary duties is to facilitate these relationships, by reducing the cost of providing trust, by preventing abuse or neglect and by minimizing the risks to which fiduciaries are exposed, through legal guarantees of their authenticity and fairness. This paper will analyze the consequences of supervising decision-making processes and it will expose the means of reviewing and analyzing directors’ fairness, i.e. certain „tests” that common law literature has identified in case law. By developing the Entire fairness test, trust, the cornerstone of the fiduciary relationship, is replaced by the term „fairness”, and the review of trust shifts to the review of the procedural premises of the decision-making process. Following the historical course of case law, we will provide an overview of matching the standards of conduct with standards of review, in order to rationalize and justify structural differences between them and the need to develop both types of standards.

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