Beijing Law Review
2013. Vol.4, No.4, 174-179
Published Online December 2013 in SciRes (http://www.scirp.org/journal/blr) http://dx.doi.org/10.4236/blr.2013.44022
Open Access
174
Directors’ Conflicts of Interest: Different European
Legal Perspectives
Gloria Esteban De La Rosa1, Jovan Shopovski2
1University of Jaen, Jaen, Spain
2European Scientific Institute, ESI
Received October 1st, 2013; revised November 2nd, 2013; accepted November 28th, 2013
Copyright © 2013 Gloria Esteban De La Rosa, Jovan Shopovski. This is an open access article distributed under
the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any
medium, provided the original work is properly cit ed.
The well-known term “conflicts of interest” could be found in different societal areas. It usually has the
same meaning and alludes on situations where a natural person or an organization is involved in multiple
interests. This set of circumstances creates risks that professional judgment or a decision will be influ-
enced by a secondary interest. This article will mainly focus on theoretical treatment of the conflict of in-
terest in the company law area and its application in different legal systems. Only company’s directors
(management of the company) and supervisory board conflicts of interest will be relevant to this work.
Different legislatives’ provisions will be analyzed. Various legal perspectives, circumstances and legal
actions related to the directors’ conflicts of interest will be presented. Apart from the binding norms, pro-
visions included in different “good governance codes” will be also analysed.
Keywords: Directors’ Conflicts of Interest; Company Law; Legal Perspectives
Introduction
The separation of ownership and control, typical of listed
companies, gives rise to a divergence of interests between
stockholders and insiders. According to traditional corporate
legal thought, nothing but the law can prevent insiders from
taking courses of action that maximise their own utility even at
the expense of stockholders’ (Enriques, 2000). Conflicts of in-
terest, directors’ disqualification and non-competition obliga-
tions are just a few of the numerous company law’s institutes,
that tend to establish a managerial structure with a primary aim
of promoting the company’s success (Shopovski et al., 2013).
In this regard, a principle that is broad, but clear cut, and can
therefore be addressed is the principle of the priority of the
company interest over the private interest of the director.
The conflict of interest is more or less familiar for all the
European legislatives. It is just a matter of treatment, though in
some countries, it is widely regulated with the laws; on the
other hand, just a framework is established, while in the third
one, it is mentioned in the corporate governance codes. At the
EU level, this area is regulated mainly with recommendations.
The last means that is on the national legislator is to decide on
which way to act.
The binding legal norms which are regulating conflicts of in-
terest aimed at establishing company’s management, whic h wil l
be released from all the other interests, except the company one,
in the process of decision making. In any case, it does not mean
that each situation where more directors’ conflicts are mixed,
distracts his ability for company’s useful decision. It is more
about transparency in the processes where these kinds of inter-
ests are present. Moreover, all the conflict situations could be
authorized by the company’s bodies, if estimated that it is for
the company’s benefit.
There is no statutory definition of a conflict of interest.
However, we could say that the “interest” is a very broad term
that includes anything or any connection or situation which
could potentially divert a director’s mind from impartial deci-
sion-making process. In that kind of situations, giving sole con-
sideration to promoting the company’s success is impossible.
Directors’ conflict of interest could be also defined as a
situation where a person’s impartial and objective performance
of duties or decision-making, within the function he/she is per-
forming, is jeopardized because personal business interests are
involved, or the family’s interests, his emotions, political or
national (favorable or unfavorable) disposition or any other
related interests with other natural or legal persons are involved
(Bohinc, 2011).
Conflict of Interests Under the United
Kingdom’s Companies Act 2006
United Kingdom’s Companies Act 2006 clearly imposes
prohibition for conflicts of directors’ interest in the UK law.
The part which regulates the conflicts of directors’ interest
shows how directors should approach actual or potential con-
flicts of interests. On the 1st of October 2008, a new duty was
placed on company directors to avoid situations in which they
have, or could have, a direct or indirect interest which conflicts
with, or might possibly conflict with, the interests of the com-
pany.
It is evident that directors’ conflicts of interest could be di-
rect or indirect. This statutory duty is broadly similar to the
previous common law duty to avoid conflict of interests, al-
though the wording of the new duty is arguably wider than the

G. E. DE LA ROSA, J. SHOPOVSKI
previous common one.
Apart from the direct conflict of interest, directors should be
aware of the duty to avoid a conflict which arises where a di-
rector has an indirect interest. Therefore, directors should check
with all their connected persons (e.g. adult child or spouse)
regarding any possible relationships they might have with the
company (e.g. where a connected person works for an adviser
to one of the company’s competitors). This duty however is not
infringed if the situation is unlikely to give rise to a conflict and
a director only need to disclose a conflict once he becomes
aware of it.
According to the Companies Act 2006, the new directors’
duties in relation to conflicts of interest came into force on the
1st of October 2008. The new duties are as follows:
1) A duty to avoid conflicts of interest (situational conflicts)
unless authorised (s. 175);
2) A duty to disclose any interest in a proposed transaction or
arrangement with the company and a separate and independent
duty to disclose any interest in an existing transaction or ar-
rangement with the compa ny (transactional conflicts) (s. 177).
It derives that the duties above are the director’s personal re-
sponsibilities; therefore, he/she has to be aware of any actual or
future conflict.
Duty to Avoid Conflicts of Interest
(Situational Conflicts)
From the 1st of October 2008, directors have a duty to avoid
a situation in which either: there is, or may be, a conflict be-
tween the interests of the company and the direct or indirect
interests of the director; or between the director’s duties to the
company and those to third party. This is a rather wide legal
position because it means that a director has an obligation not
to let an unauthorised conflict situation arise in the first place.
The situational conflict of interest, as a prevention, alludes that
one of the manager’s duties under British Law, is to exercise
his power with honesty, good faith and in the interests of the
company.
However, there is no breach of duty when a situation cannot
reasonably be regarded as likely to give rise to a conflict of
interest or of duties.
The Act has introduced a new statutory power for a board to
authorise such situational conflicts to protect directors from
breaching the relevant provisions. Although, the company will
need to ensure that this power is also included in the company’s
articles of association or (if the company is a private company)
the shareholders have passed a resolution giving them that
power. As a result, the company will now be required to oper-
ate in more formal procedures regarding conflicts of interest.
Only non-conflicted directors will be able to count in the
quorum of a board meeting and vote to pre-authorise a direc-
tor’s conflict(s).
Duty to Disclose Any Interest in a Propose d or
Existing Transaction or Arrangement with the
Company (Transactional Conflict)
Directors are required to declare the nature and extent of any
interest they have in a proposed transaction or arrangement
with the company, and also in an existing transaction or ar-
rangement with the company. Their interest may be direct or
indirect and interests of their connected persons (e.g. adult child
or spouse) may also be captured. The interested director cannot
be counted in the quorum or vote on a board resolution relating
to the relevant transaction or arrangement.
Opposite to the other legislations, which usually determines
director’s civil responsibility in the United Kingdom, a failure
to declare an interest in an existing transaction or arrangement
with the company is a criminal offence (a breach of the other
duties could only give rise to civil claims against a director ).
If a director becomes aware that he has a direct or indirect
interest in an existing or proposed transaction or arrangement
with the company, he should notify the board of the nature of
the interest at the next board meeting or by a written declaration.
Interests in proposed transactions should be notified before the
transaction is entered into, and each director has an ongoing
duty to update any changes in these interests. This rule does not
require a declaration of an interest of which the director is not
aware; but a director is treated as being aware of matters of
which he ought to be reasonably aware of.
Authorisation of Conflict Situations by
Non-Conflicted Directors
Only non-conflicted directors will be able to count in the
quorum and vote to consider, and if appropriate to pre-authorise
a director’s conflict(s) and in doing so, they will need to act in
accordance with their general duties, including the duty to
promote the success of the company for the benefi t of its mem-
bers as a whole.
Where a director is asked as a non-conflicted director to ap-
prove a potential conflicting position that brings clear benefits
to the company, for example access to industry or sector exper-
tise, it will usually not be an issue in deciding that the director
in question is acting in the interests of the company in approv-
ing the conflict. The board should be able to approve a matter if,
on balance, the directors think it is in the best interests of the
company for the company to retain (or appoint) that director. A
board should consider whether the matter they are approving
would affect the relevant director’s ability to act in accordance
with his wider duties.
The authorisation given by the board is in form of resolution.
This resolution approving a director’s actual or possible conflict
should:
1) Set out the matter that has been authorised;
2) State the duration of the authority (it is suggested suffi-
cient time, e.g. 12 months, for it to be reviewed annually), and
that it can be revoked at any time;
3) Set out any circumstances when the director must revert to
the board for the authority to be reviewed;
4) Include where appropriate, provisions stating that the di-
rector may not receive information relating to the conflict or
participate in board discussions where the confl ict is relevant.
Apart from the last mentioned arrangements or transactions,
where disclosure to the board has been required, there are four
types of transactions requiring the approval of the company
members (general meeting). This rule applies to the following
transactions entered into by a company and involving the com-
pany’s director:
1) Long-term service contracts, (Directors’ long-term ser-
vice contracts are contracts under which a director is guaran-
teed at least two years of employment with the company of
which he is a director, or with any subsidiary of that company).
2) Substantial property transactions, (Property transactions
have to be substantial, namely if the value of the asset exceeds
￡100,000 or 10% of the company’s net assets; no approval is
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G. E. DE LA ROSA, J. SHOPOVSKI
required if the value of the asset is less than ￡5000).
3) Loans, quasi-loans and credit transactions, and
4) Payments for loss of office.
Conflicts of Interest according to the German
Legal Practice
Almost the only set of legally binding rules in the field of
conflict of interest is related to ban of competition. A member
of the Management Board may not, without the permission of
the Supervisory Board, conduct any kind of commercial busi-
ness or undertake individual transactions in the same type of
business as the company; he or she may not, without permis-
sion become a director or active manager of any other company
or firm (Bohinc, 2011).
If a member of the Management Board violates such prohibi-
tion, the company may claim damages or require that the
member treat such transactions made on behalf of the company
(competition clause, §88 AktG). Another legally binding provi-
sion of the German company law, refers to credits granted to
the Management Board member. Para. 89 of the AktG (Grant of
Credit to Members of the Management Board) stipulated that
the company may grant credit to members of the Management
Board, only pursuant to a resolution of the Supervisory Board
(Bohinc, 2011).
In addition, a controlling company may grant credit to legal
representatives, registered authorised officers (Prokuristen) or
General Managers of a controlled company only with the con-
sent of its Supervisory Board; a controlled company may grant
credit to legal representatives, registered authorized officers
(Prokuristen) or General Managers of the controlling enterprise,
only with the consent of the Supervisory Board of the control-
ling enterprise.
The same also apply to credits to the spouse or a minor child
of a member of the Management Board, or other legal repre-
sentatives, registered authorized officers (Prokuristen) or Gen-
eral Managers. Thus, there are other detailed statutory provi-
sions, referring to the relations in which credit may be granted
only with the consent of the Supervisory Board (Bohinc, 2011).
Finally, there are several rules on conflicts of interests in the
German corporate governance Code, which are non-binding
recommendation of professional ethics.11 (hereinafter Gcg
Code). Gcg Code stipulates that during their employment for
the enterprise, members of the Management Board are subject
to a comprehensive non-competition obligation (Bohinc, 2011).
Prohibition to Demand or Accept Benefits
from Third Parties
There are no legal rules in German AktG, regarding benefits
from third parties. Prohibition to demand or accept payments
from third parties in German law is not legal but rather a code’s
professional ethical recommendation (Bohinc, 2011). Accord-
ing to Gcg Code, Members of the Management Board may not
in connection with their work, demand nor accept from third
parties payments or other advantages for themselves or for any
other person, nor grant third parties unlawful advantages (Bo-
hinc, 2011).
Members of the Management Board are legally bound to act
in the company’s best interests. But the provision, that no
member of the Management Board may pursue personal inter-
ests in his decisions or use business opportunities intended for
the enterprise for himself is not legal but ethical (Gcg Code)
(Bohinc, 2011).
Disclosure of Conflicts of Interest
According to Gcg Code (but not GAktG), all members of the
Management Board have to disclose conflicts of interest to the
Supervisory Board and inform the other members of the Man-
agement Board thereafter (Bohinc, 2011). Members of the
Management Board may take on sideline activities, especially
Supervisory Board mandates outside the enterprise, only with
the approval of the Supervisory Board (Gcg Code) (Bohinc,
2011). But on the other hand, there is the AktG provision, that
important transactions require the approval of the Supervisory
Board. But it is up to shareholders to decide the transactions,
subject on approval, and which are not listed by the law (Bo-
hinc, 2011).
Supervisory’s Board Conflict of Interes t
The AktG does not contain explicit regulations concerning
the handling of an occurred conflict of interest. But it contains
some general duties to disclose certain information concerning
supervisory board members and candidates. It is generally ac-
cepted that in case of a conflict of interest, the AktG requires in
the exercise of the mandate, strict loyalty to the company’s best
interest. Especially, an occurring conflict of interest cannot
justify putting other interests first while exercising the mandate.
This follows from the fiduciary duty under corporate law every
member is bound to.
In case of a non-detachable conflict, the member has to find a
solution. He might be obliged to disclose the conflict and may
not be allowed to participate in the particular decision or, as the
case may be, must also stay away from the debate concerning
the particular issue. This, too, follows basically from the fidu-
ciary duty. It is debated controversially whether an exclusion of
the voting right can be enforced under the law in a correspond-
ing application of e.g. § 34 of the German Civil Code (BGB).
Focusing on the issue of best practice, it is sufficient to know
that the exclusion of the voting right can be one measure to
handle a conflict of interest that occurred (Hirte, 2007).
Conflicts of Interest and Non-Compete
Provisions under the Spanish Law
Spanish Law proscribes the prohibition of competition of a
manager over a company. Specifically, article 230 of the Leg-
islative Royal Decree 1/2010 of 2nd July, through which the
revised text of the Corporate Enterprises Act (LSC in Spanish)
was approved [Official Gazette of Spain no. 161, 3th July 2010
(Ref. Official Gazette of Spain-A-2010-10544). Consolidated
text], states that “1. Managers may not, for their own account
or the account of others, engage in a business that is the same,
analogous or supplementary to the business constituting the
corporate purpose, without explicit authorisation from the
general meeting. To obtain such authorization, they shall pro-
vide the information described in the preceding article” (“1.
Los administradores no podrán dedicarse, por cuenta propia o
ajena, al mismo, análogo o complementario género de activi-
dad que constituya el objeto social, salvo autorización expresa
de la sociedad, mediante acuerdo de la junta general, a cuyo
efecto deberán realizar la comunicación prevista en el artículo
anterior”).
The Doctrine unanimously considers this as a derogation of
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G. E. DE LA ROSA, J. SHOPOVSKI
the principle of Free Enterprise as stated in article 38 of the
Spanish Constitution of 1978 (Lois, 2000). Bear in mind that
administrators and managers are not covered by common pro-
visions under the Spanish Corporate Enterprises Act and there
are also doubts surrounding the legal and employment regula-
tions (Limón, 2004).
In this way, the current Corporate Enterprises Act unifies the
regime of prohibitions of competition, which previously came
under article 65 of the repealed LSRL (Limited Liability Com-
panies Act) and Article 127 of the repealed LSA (Joint Stock
Companies Act) (Juste/Igartúa, 2005). Article 65 of the LSRL
stated: “Prohibition of competition: 1) Managers may not, for
their own account or the account of others, engage in a busi-
ness that is the same, analogous or supplementary to the busi-
ness constituting the corporate purpose, without explicit au-
thorisation from the general meeting. 2) Any partner may
request the examining magistrate of the registered office to
remove any manager in breach of the above prohibition”
(“Prohibición de competencia: 1) Los administradores no po-
drán dedicarse, por cuenta propia o ajena, al mismo, análogo o
complementario género de actividad que constituya el objeto
social, salvo autorización expresa de la sociedad, mediante
acuerdo de la Junta General. 2) Cualquier socio podrá soli-
citar del Juez de Primera Instancia del domicilio social el cese
del administrador que haya infringido la prohibición ante-
rior”).
The current prohibition covers competitive activities relating
to the corporate purpose, as long as a risk to the interests of a
company exists (Gallego, 2003). The delimitation of the notion
of social interest is not clear in either the Doctrine or in Spanish
Law, as two positions stand out: contractualist and institution-
alist (Díaz, 2004). The scope of the prohibition includes any
company where, although not previously stated, activities are
carried out which coincide with the company’s corporate pur-
pose where the manager holds such a position (Emparanza,
2011). See the doctrine of the Spanish Supreme Court (STS
6666/2008, 5th December 2008; STS 8863/2012, 26th Decem-
ber 2012).
On the other hand, an effective competency according to the
relevant market benchmark must exist. For this reason, such
activity must take place in a specific temporal and geographical
scope, where damages to a company’s interests may be inevita-
ble (Rivas, 2012). The Doctrine also states that the prohibition
of competition is directly related to the duties of the manager
under articles 225 (due diligence) and 226 (loyalty) of the Cor-
porate Enterprises Act, as the latter can be considered a general
clause, naming the duty of loyalty as a guiding standard to fol-
low when deciding how to react in such circumstances (Em-
paranza, 2011).
It names managers as loyal representatives, implying they
have the duty to act according to the promotion of social inter-
ests as a representative of others’ interests, giving priority to
said social interests in cases where there is a presumed conflict
of interests, whether direct or indirect (Esteban, 2011). In the
other hand, the reference to loyalty nullifies the difference be-
tween loyalty and fidelity, which has become nominal (Ribas,
2011a). Other authors consider that loyalty is a more specific
duty, which comes under the duty of fidelity (Ribas, 2011b).
Therefore it deals with one of the so-called typical conflicts
of interests (Article 229) between the manager and the com-
pany, which become harmonized under the Corporate Enter-
prises Act. The only difference in the cases of Limited Liability
Companies and of Public Limited Companies is in the different
regulations applicable to the sanction which corresponds to the
cases where the prohibition is violated, as seen below (Alcalá,
1999).
As stated in the doctrine, in the presence of a conflict of in-
terest, the company must have legal protection against the risk
of reducing their clientele and their business expectations,
which hinder the development of the object and social purposes
(Rivas, 2011b). To avoid such situations, article 229 of the
Corporate Enterprises Act foresees that: “in situations where
there is a) conflict of interest. 1. Managers shall inform the
board of directors or, in the absence thereof, the other manag-
ers or, in the event of a sole manager, the general meeting, of
any situation that may involve a conflict between their own and
the company’s interests. Managers in such situations shall
refrain from taking part in decisions relative to the operation
around which the conflict has arisen”.
Article 230, 1˚ states that: “Situaciones de conflicto de
intereses. 1) Los administradores deberán comunicar al consejo
de administración y, en su defecto, a los otros administradores
o, en caso de administrador único, a la junta general cualquier
situación de conflicto, directo o indirecto, que pudieran tener
con el interés de la sociedad. El administrador afectado se
abstendrá de intervenir en los acuerdos o decisiones relativos a
la operación a que el conflicto se refiera”. Besides this, article
230 states that: “2) Los administradores deberán, asimismo,
comunicar la participación directa o indirecta que, tanto ellos
como las personas vinculadas a que se refiere el artículo 231,
tuvieran en el capital de una sociedad con el mismo, análogo o
complementario género de actividad al que constituya el objeto
social, y comunicarán igualmente los cargos o las funciones
que en ella ejerzan. 3) Las situaciones de conflicto de intereses
previstas en los apartados anteriores serán objeto de
información en la memoria”.
Firstly, the manager has the obligation to be informed of the
existence of a conflict. The obligation to be informed of the
conflict is a necessary condition enabling the company to sus-
pend the prohibition (Rivas, 2011b) on one hand, and on the
other hand, it is directly related to the obligation to prevent
conflict which is not expressly mentioned in the Corporate
Enterprises Act but which is derived from the obligation of
loyalty (and more immediately from the general principle of
due diligence).
The difference between the Spanish Corporate Enterprises
Act (LSC) and the British Companies Act of 2006 (above men-
tioned) is highlighted by the fact that the latter mentions in
section 175 that the fifth duty of a company manager is to avoid
conflicts of interest, that is to say, prevent situations in which
he has, or can have, a direct or indirect interest that conflicts, or
possibly may conflict with the interests of the company (Brunet,
2011). One of the duties of the manager under British Law is to
exercise their power with honesty, good faith and in the inter-
ests of the company.
Finally, regarding the sanctions corresponding to managers
who breach the prohibition of competition, as seen above, arti-
cle 320 of the Corporate Enterprises Act foresees the sanction
for every type of capital firm. Specifically, it states: “2) In lim-
ited liability companies, any partner may request the comer-
cial court with jurisdiction in the place where the registered
office is located to remove any manager in breach of the above
prohibition. 3) In joint stock companies, at the behest of any
shareholder, the general meeting shall decide on the dismissal
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G. E. DE LA ROSA, J. SHOPOVSKI
of managers who are also directors of a competing company”
(“2. En la sociedad de responsabilidad limitada cualquier socio
podrá solicitar del juez de lo mercantil del domicilio social el
cese del administrador que haya infringido la prohibición
anterior. 3. En la sociedad anónima, a petición de cualquier
accionista, la junta general resolverá sobre el cese de los
administradores que lo fueren de otra sociedad competidora”).
Competition Clause and the Conflicts of Interest
according to the Macedonian Company Law
Restrictive institutes such as competition clauses and con-
flicts of interest are well known in the Macedonian law on
companies. While the ban of competition is an institute directly
focused on prevention of company’s interest from the director’s
personal one, the conflicts of interest is to provide transparent
and efficient decisions, when the director is somehow involved
in different interests (except the interest of company’s wellbe-
ing).
Ban of Competition
It is laid down in article 238 of the Macedonian Companies’
Act, that director of the company without permission by the
members (General Assembly) of a limited liability company
may not:
1) Participate in any other activity which is in the company’s
business area.
2) Be a member (with unlimited personal liability) in other
company that deals with the same or similar activities.
3) Be a member of the management or supervisory bodies in
other company that deals with the same or similar activities.
4) Be in the company’s premises works for his own or a third
party’s benefit.
In a case of the violation of the above mentioned, the com-
pany may cl aim compensation; i t may also require the offender
to cede to the company, any operations concluded for his own
account as operations concluded for the account of the com-
pany, or require the offender to transfer to it any benefits from
operations concluded for his own account, or to cede to the
company his right to compensation.
Conflict of Interest
The Macedonian law maker regulates the conflicts of interest
area throughout the presentation and definition of situations and
transactions where conflict of interest is present, alluding on
transactions where conflicts of interest between the parties is
clear and has to be regulated with special procedures.
In the article 457, definition of the above mentioned is given;
though each transaction (including loans and credits) is defined
as conflict of interest transaction if a board member or a mem-
ber of a supervisory board, even a shareholder who has over
20% of company’s shares, including members of their close
families (spouses, parents and children) is:
1) Party of the transaction, user, representative or even a me-
diator in that transaction.
2) An owner of over 20% of the company’s shares which in-
clude transaction’s party, its user, representative or mediator.
3) Part of the management of the company which also in-
clude transaction’s party, its user, representative or mediator.
These are actually situations where one party of a transaction
is the company, as a legal entity and the other one is company’s
director or his/her close family members (the afore mentioned
persons). All this provisions are aimed at avoiding conflicts of
interest which might be harmful for the company’s benefits.
Moreover, special obligations are determined for the manage-
ment of the company in this kind of situations. According to the
article 459, all the people encompassed in the article 457 have
to disclose conflicts to the board or the supervisory board, es-
pecially to inform about:
1) The companies where they own over 20% of the shares.
2) The governing role in other companies.
3) Potential conflict of interest situations or transactions.
All the situations/transactions under the article 457 and 459
have to be approved by the board, the supervisory board or the
general assembly, before being conducted. Special procedure is
determined by the law.
Before being conducted, all these “conflict transactions”
have to be approved by board; with a majority of the inde-
pendent directors’ votes. The independent directors are those
that do not have interest in the transaction they are voting for.
In case the number of independent directors is not sufficient for
voting; the transaction has to be approved by the general as-
sembly.
The general assembly has to approve each “conflict transac-
tion”, with majority of the votes whose shareholders do not
have interest in the transaction, w h ere:
1) The total value of the transaction passes 2% of the com-
pany’s asset value, according to the latest financial reports.
2) If a certain transaction includes share offering, which
value passes 2% of the total value of the company’s shares.
The decision of the board or the general assembly, for ap-
proval of “conflict transactions”, must contain data concerning
the conflict of interest and transactions’ value. The prices in the
transactions (its value) are determined by the board or the su-
pervisory board.
With the 2008 amendments (Official Gazette No. 87/08), it is
determined that in each “conflict transaction”, every interested
party (alluding to the board member or supervisory board
member whose conflicts of interest have been approved and the
transaction has been completed) is responsible for the damage
caused; if in three years period, after the completion of the
transaction, it is determined that the transaction is harmful for
the company, shareholders or independent board members. This
provision is confusing in certain extent since it’s about transac-
tion which was previously approved by the company’s highest
bodies; as transactions that won’t be against company’s benefit
in spite of the conflicts of interest in the time of implementa-
tion.
Conclusion
It is clear that in all mentioned legislatives, institutes like the
prohibition of competition and conflicts of interest are included
and defined. The legislators’ intention is to protect the owners’
interests for decisions that might be influenced by other inter-
ests except th e compa ny’s one.
It’s a matter of disclosure of potential or present conflict
situation by the managers so that the satiation could be solved
(approved or not) by the impartial managers, supervisors or the
general assembly members. Moreover, some provisions are
directly focused on the so called “important transactions” where
either the directors decide for their own benefit or it’s, transac-
tions that overcome certain value. All these processes aimed at
protecting the stakeholders from decisions where the impartial
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G. E. DE LA ROSA, J. SHOPOVSKI
Open Access 179
behavior might be jeopardized by some other interests.
However, these company law institutes are to be protective,
in terms of assuring secure markets, hence, it is becoming cer-
tain that they are not flourishing the entrepreneurship. The en-
trepreneurship in its genuine form needs institutes which will
liberalize the market and encourage the entrepreneurs in their
trading activities. This could be a base for new research mainly
focused on the relations between entrepreneurship and the con-
flicts of interest or other “restrictive” company law institutes.
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