Business judgment rule - bör svenska domstolar utvärdera företags affärsbeslut?

Sammanfattning: Claims for damages against board members have historically been unusual in Sweden but have started to increase in recent years. The responsibility of board members is regulated in the 29th chapter 1 § of the Swedish Companies Act (SCA) and of particular interest for this essay are the cases where the board has caused damage upon the company through bad business decisions. In such cases in the US, board members are protected by the business judgment rule (BJR); a rule which stipulates that the board will not be responsible for merely having made a bad business decision. The rule works as a presumption and means that the court will not review a business decision that has turned out bad for the company, if the decision has been made on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company. The burden is on the plaintiff to break this presumption, if he is not successful the case will be rejected by the court and will not be tried in substance. In Sweden there is no formal BJR. However, in the legal literature there are those who claim that the Swedish courts in fact apply an approach that is more or less identical. The purpose of this essay has been to bring clarity on the matter by studying case law and legal doctrine written on the subject and in addition to discuss whether the Swedish legislator should take action in order to remove uncertainties. The consensus in the Swedish legal literature is that courts will not review a business decision taken by the board of a company and that the courts should be cautious about holding board members responsible for bad business decisions. This main rule is in accordance with the BJR but there are exceptions according to the preparatory work of a partial reform of the SCA. The question of what these exceptions could be was left to the discretion of the courts. Case law on the matter is limited. The Swedish supreme court has never expressly ruled on the matter of how the courts should determine when board members can be held accountable for bad decisions. There are cases in the lower courts where some factors that the judges consider are recurring, for example if the decision was taken on an informed basis and if the board members acted in what they thought was in the best interest of the company. These cases are analyzed in the final part of this essay and the conclusion is that the BJR does not exist in Sweden, but the lower court’s reasoning on the matter bears certain similarities. Hence, another conclusion is that a similar rule as the BJR should be expressly introduced.