Is Bad-Faith the New Wilful Blindness?

Book excerpt: This books focus is on one particular corporate governance risk that arises from the similarities between traditional elements of a willful blindness cause of action and those of company directors bad faith. An essential aspect of any consideration of corporate governance is the role played by the directors of companies who might have been facilitating the wrongdoing, in part, by remaining willfully blind while falling foul of the good-faith obligation. This study investigates cross application of the doctrines of good faith and willful blindness in company law in Delaware, USA, in comparison with company law in England, UK, with relation to company directors conduct. Here is the argument that courts in both legal systems under a particular set of conditions and hearing cases of company directors falling foul of the good-faith obligation should consider whether the willful-blindness doctrine sheds light on the interpretation of company directors alleged misconduct. A positive consideration of this approach could expand the courts horizons to include the most apparent individuals, namely the company directors, to face liability concerns for corporate disasters.