A Way Out of Officer Liability: What to Do in International Conflicts of Norms?

Sören Rettig and Christoffer Gruppe, both from the D&O insurance community VOV, examine in their contribution "Organ Liability in the Case of International Conflict of Norms" (Paywall) in NZG 2025, 1317 the corporate liability consequences when managers of international companies are confronted with contradictory legal requirements from different jurisdictions. In this article, we trace the core statements of the contribution and classify them for the practice of officer liability (Organhaftung).

Problem Statement

Internationally active companies face the challenge of complying with contradictory legal requirements from different jurisdictions, where fulfilling one duty inevitably means breaking another.

Central Thesis of the Authors

In the case of genuine international conflicts of norms, the strict legality obligation does not apply. Instead, officers can make an entrepreneurial decision and rely on the Business Judgment Rule.

Reasoning

Rettig and Gruppe argue that the legality obligation presupposes a clear instruction for action. However, in the case of contradictory legal commands, this clarity is lacking. In the absence of a clear decision binding, an entrepreneurial decision situation exists. The officer acts dutifully if they decide for the well-being of the company based on an adequate information basis. For freedom from liability, compliance with (and documentation of!) the requirements of the Business Judgment Rule is therefore necessary:

• Adequate Information: Comprehensive analysis of legal, economic, and other consequences of both options (ex ante)
• Company Welfare: The decision must be justifiable and must not be simply irresponsible
• No Conflicts of Interest: Personal sanction risks must not influence the decision

Damages

The authors also maintain that in the case of breaches of duty, the general principles of offsetting advantages (Vorteilsanrechnung) apply – advantages from the breach of duty thus reduce the damage.

Classification for Practice

Significance: The contribution by Rettig and Gruppe offers members of management of internationally active companies an important liability law reference point for a "way out" of seemingly unsolvable compliance dilemmas, for which there is so far a lack of (supreme court) case law. The transfer of the Business Judgment Rule to conflicts of norms is dogmatically comprehensible and practical.

Recommendations for Action:

1. Identify Conflict: First check whether there is actually a genuine, unsolvable conflict of norms (no solution through conflict of laws)
2. Documentation is Crucial:
   • Comprehensive analysis of the legal consequences of both options (fines, damages, exclusions)
   • Evaluation of economic consequences (direct/indirect, short/long-term)
   • Consideration of reputation effects, business relationships, market access
   • Obtaining qualified external advice in the absence of internal expertise and commissioning written legal opinions accessible to plausibility checks
3. Avoid Conflicts of Interest: In the event of impending personal sanctions, disclosure and, if necessary, abstention
4. Ex-ante Perspective: Only the circumstances recognizable at the time of the decision are decisive, not the success that occurred later