Features of Non-Executive Directors' Fiduciary Duties

Among the influences of the 2007 financial crisis on corporate governance, the developing role of non-executive directors and their expanding duties require particular attention. By nature of their function, non-executive directors mitigate risks determined by information shortcomings between shareholders and managing directors, on the assumption of effective exercise of their duty of oversight. However, this subsidiary duty is not within the essence of non-executives' role, the same perspective being reflected in statutory rules of several European countries. This paper will examine the particularities of non-executive directors' fiduciary duties, incorporated from common law doctrine, by providing a comparative overview of EU member state approaches. The paper will pursue the evolution of the non-executive function in continental law and examine recent European studies, which extend the scope of non-executive directors' duty of care. The objective is to demonstrate that fundamental differences between national regulations are determined by different understandings of the function of non-executive directors, for example, subsets of their fiduciary duties are divided in Romanian corporate governance between different managing bodies of the company.