Of Convergent Evolution and Legal Transplantation: The International Diffusion of the Duty of Care and the Business Judgment Rule

It is commonplace to acknowledge the considerable influence that AngloAmerican law has had on the development of corporate governance generally, and directors’ duties specifically around the world. Directors are said to be “fiduciaries” who are entrusted with other people’s money and, hence, should be subject to stringent duties of care, loyalty and good faith, which are often collectively referred to as “fiduciary duties”. The characterization of directors as fiduciaries, and their duties as fiduciary duties, has its roots in the English law of equity and trust developed in the Court of Chancery. It was adopted early on by courts in the United States and is increasingly used by continental European commentators to emphasize the duty-bound position that directors occupy. It is therefore tempting to assume that fiduciary duties, in their present form, are legal transplants from the common law world introduced into civil law jurisdictions as a result of the rise of the Anglo-American corporate governance movement.1 On this view, the prevalence of the duties of care and loyalty in civil law jurisdictions is an instance of convergence in corporate law along the lines of Anglo-American law and, some would argue, a testament to the superiority of the common law in addressing the economic problems to which the corporate form gives rise.2 Christine Windbichler, I suspect, would disagree. In characteristically nuanced and perceptive fashion, she pointed out that a fiduciary understanding of the position of directors was inherent in the concept of a “corporate or-