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Access_open Directors’ Disqualification in the Netherlands

An International Comparative Re-Evaluation of an Amended Disqualification Proposal

Journal The Dovenschmidt Quarterly, Issue 1 2015
Keywords directors’ disqualification, directors’ liability, fraud, company law, insolvency law
Authors Tom Reker
AbstractAuthor's information

    In response to the effects of the global financial crisis on bankruptcy tendencies and the role of fraudulent company directors within that context, the Dutch government has introduced a proposal for a civil law directors’ disqualification instrument. This proposal aims to prevent both fraudulent conduct (by barring directors) and financial harm to corporate stakeholders, as well as to safeguard competitiveness and the trust which is necessary for effective trade. The fact that Dutch criminal law already allows for disqualification of directors in certain circumstances, which are partly similar to those in the proposal, raises doubts about the necessity of a civil law equivalent. This article concludes that the current proposal seems to have lost value vis-à-vis an earlier draft due to alterations to the disqualification and exculpation criteria, which may result in an overlap of the civil law and criminal law instruments. Consequently, there is a more pressing need for demarcation and reallocation of certain aspects of the proposal. By comparing the proposal with foreign (UK, US, Australian and German) counterparts, several suggestions are formulated to both counteract the overlap which the proposal may cause in Dutch law and to contribute to a model of effective disqualification instruments in general.


Tom Reker
Tom Reker recently graduated from the Leiden Law School, Leiden University, Leiden, The Netherlands. Email: tomreker_1@hotmail.com.
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