A Behavioural-economic Perspective on Conflicts of Interest Among Shareholders, Debtholders, and Directors

Abstract

Corporations have conflicts of interest among shareholders, debtholders and directors, and, corporate law gives each party avenues to pursue others, while protecting themselves. While debtholders are exposed to excessive risk-taking by directors and abuse of limited liability by shareholders, they are protected by legal institutions like directors’ liabilities to third parties and piercing of the corporate veil. Shareholders are subject to the risk of veil-piercing and director negligence, but they are protected by derivative suits. And directors, while under threat of liability suits by debtholders and shareholders, are protected by the business judgement rule, liability exemption and liability insurance of directors and officers (D&O). This web of legal institutions comprises a dual structure of economic and psychological factors, built upon economic incentives but also upon such psychological factors as bounded rationality, the chilling effect, the desire for certainty, loss aversion and the sense of fairness. Any change in the balance will affect their behaviour; greater protection of directors, for example, provokes greater risk-taking, both economically and psychologically. JEL: K22, G41, D91