The waiver of the corporate action to demand director's liability

The present study is aimed at analyzing the legal regulation of the waiver of the corporate action to demand directors’ liability under the Spanish corporate law by comparing it with the Italian legal system. This issue, which has always raised controversy among Spanish scholars, has been studied very little. By means of such a waiver, the company voluntarily dismisses every claim for damage caused by a director without receiving any compensation. The very possibility for a company to do so leads us to conclude, in contrast to the general opinion, that the legal system of directors’ liability for breach of fiduciary duties involves strictly private interests. In the first chapter of the study, the historical basis of this legal regulation, both in Spain and in Italy, is reviewed. The second chapter deals with the regulation’s material scope of application, whereas the third chapter concerns its temporal scope, concluding that it applies not only to procedural dismissal or settlement of the action, but to every single general meeting decision that leads to a total or partial exoneration from liability of corporate directors. In the fourth chapter the specific aspects of the regulation are examined, focusing on the ‘veto’ right that Spanish and Italian law recognizes to minority shareholders. This right implies an exemption to the majority rule that aims to protect outsiders from abusive exonerations. Finally, the fifth chapter discusses the effects of a waiver decided by the corporation over the extraordinary capacity of minority and creditors to bring actions against directors.