Bolagsledningens ansvar för indirekt skada - Särskilt i koncernförhållanden

Sammanfattning: There is ongoing discussion in company law on the question of corporate management liability to pay damages. Although it is not uncommon for harm to be inflicted on a company by its own management, it is rare for management to be held accountable towards the company, and even less so towards shareholders. This thesis analyses the external accountability of directors and the CEO in case of indirect damage to shareholders. It focuses on corporate groups, since there is limited discussion of management liability towards shareholders in case of indirect damage. Problems arise in particular with regard to situations where the management of a parent company inflicts harm on a subsidiary, and the shareholders of the subsidiary wish to claim compensation for indirect damages. This thesis describes the prevailing legal doctrine regarding directors' and CEOs’ liability vis-à-vis individual shareholders in case of indirect damage from a shareholder perspective. This provides a basis for answering the main question at issue; whether and how shareholders of a subsidiary can claim compensation for indirect damages caused by the directors or a CEO of a parent company, or by the subsidiary itself. It is difficult to determine the circumstances under which individual shareholders have the right to litigate, as well as their rights to be compensated for indirect damage. The discussion in the literature concerns whether these two questions fall within the scope and purpose of the Swedish Companies Act (2005:551). Moreover, the extent of management's liability vis-à-vis individual shareholders in a corporate group is often unclear. Application of 29 chap. 1 § Companies Act in a corporate group raises difficult questions, especially when the management of the parent company caused the subsidiary damage. This paper examines these issues in order to increase the reader's knowledge of corporate management liability in and outside of corporate groups. One conclusion is that individual shareholders can claim compensation for indirect damage caused by the management. However, the prevailing perception of individual shareholders' right to litigate and entitlement to compensation is inadequate in several regards. For example, minority shareholders’ entitlement to compensation is dependent on their equity stake. The legal situation is in need of clarification regarding when individual shareholders have the right to litigate, and when indirect damage is compensable in light of an application of the doctrine of norm protection. Furthermore, 29 chap. 1 § Companies Act is not applicable in the event that parent company directors and CEO cause the subsidiary injuries. It is primarily the subsidiary's minority shareholders who suffer from this. Since there is no legal establishment of a group interest in Swedish company law, liability for damages to the corporate group as a whole is inapplicable. The legal situation for compensation of indirect damage within corporate groups is not satisfactory, thus the need for clarification and reform.