حماية أعضاء مجلس الإدارة من تبعات إخلالهم بواجباتهم الخاصة : دراسة لتطوير آلية حماية أعضاء مجلس إدارة شركة المساهمة العامة وفق قانون الشركات الكويتي رقم 1 لسنة 2016

الملخص EN

Although Kuwaiti corporate law has developed significantly over the last few years, the issue of protection for board members when making routine decisions and managing corporate affairs was not addressed with the enactment of new corporate Law No 1 of 2016.

In fact, the Kuwaiti legislature utilized the unchanged rules adopt ed under the old Kuwaiti corporate law that did not preclude lawsuits against a com pany's board of directors for resolutions and decisions made during a general meeting.

However, the existence of this rule has a chilling effect on the board members' will ingness to make managerial changes or engage in commercial transactions that may benefit the company because if the board's actions fail to achieve the desired goals, a shareholder or other affected party may attempt to hold the board members personally liable.

At the same time, the new Kuwaiti corporate law does not require the general assembly to satisfy any particular condition when granting the board approval to ini tiate transaction that results in a board member's breach of the duty of loyalty.

Thus, there remains a lingering concern that transactions that may still be approved that result in a board member's breach of the duty of loyalty and result in a personal gain at the expense of the shareholders.

Hence and by engaging in a comparative analytical approach, this article focuses on the need for balance between protecting board mem bers from personal liability for decisions made in the ordinary course of business and protecting the interests of shareholders from conflicts of interest or cases of inurement through the breach of fiduciary duties.