Director Liability in Banks under Danish Law

Business as usual?

Abstract

Law is said to be path-dependant, only evolving gradually and piecemeal and carefully building on established positions. Experience tells us that this is not always true; it also tells us that it ought to be. To be a revolutionary calling for the overthrow of the ‘system’ to be replaced by a new and much better world betrays not only an immature lack of patience but also and more seriously a lack of imagination, intellectual stamina, and basic curiosity as how to identify and navigate each step of the long way from the identified problem to the desired end result and solving the various problems and confusion that each step may cause. A recent decision by the Danish Supreme Court in the case of Capinordic Bank A/S adds to this perception of the law as reassuringly slow moving and predictable, but it also illustrates the perils that may spring from unwarranted impatience. As it concerns director liability in banks under Danish law, it is well suited to form part of this tribute to Prof Jan Kleineman. 
Besides serving as a model founder of the Stockholm Centre for Com- mercial Law, who has done much to influence the way the Faculty of Law is organised at the University of Copenhagen, Prof Kleineman is also widely appreciated for his contributions to the law of torts, especially in respect of commercial affairs. In this, Prof Kleineman resembles a Danish professor of an older generation, Prof Bernhard Gomard, who sadly passed away last year. I cannot resist the temptation of offering a homage to the former by recounting the continued relevance of the latter in his eminent piece on director liability from 1984, as there can be no doubt that their contributions will continue to be relevant for years to come both to their national jurisdictions, which they addressed, and the shared Nordic legal tradition that they both represent.