walslaw, Amsterdam boutique law firm
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Boardroom advice

Independent counsel to directors, supervisory board members and shareholders on the questions that sit beneath a major corporate decision. The issues rarely arrive labelled as legal: a board member is concerned about a conflict, a management team needs to document why a course of action was chosen, a shareholder is unsure whether to support a proposed transaction, or a supervisory board wants to understand whether a decision process is robust. We advise on the corporate law, governance and process aspects of those questions, so the advice is practical and can be relied on when it matters.

When clients call us

  • A board member or shareholder has a conflict in a transaction and needs to know the right process
  • The board is being asked to approve a major transaction and wants to confirm the decision process is sound
  • A shareholder is deciding whether to vote in favour of, or against, a significant resolution
  • A supervisory board needs independent counsel on a management proposal or conflict
  • The company is considering a strategic option and wants legal and governance input early in the process

Key legal & commercial issues

I.

More than a legal question.

Boards and shareholders face questions that are partly strategic, partly legal and partly personal. These include whether to sell the company, whether to support a management buy-out, whether to vote against a resolution, whether a related-party transaction has been properly handled, whether the board has followed the right procedure in approving a large commitment, and whether a conflict requires a director to abstain and how that abstention should be recorded.

These questions are not answered by reference to a single statute. They require an understanding of the articles of association, any shareholders' agreement, the Dutch Corporate Governance Code where it applies, the statutory duties of directors under Book 2 of the Dutch Civil Code, and the specific commercial position of the company. The answer is usually a combination of what the law requires, what good governance looks like, and what a court would say if the decision were later challenged.

II.

Conflicts, independence and process.

A conflict of interest is not necessarily disqualifying, but the way it is handled can be decisive. Dutch law distinguishes between a director's conflict and a supervisory director's conflict; related-party transactions may also be subject to specific rules. The applicable disclosure, abstention and approval requirements depend on the legal form, the articles of association, any applicable governance code and the circumstances of the transaction.

We advise on the process that protects both the decision-maker and the company. That often means helping to document the analysis, the advice received, the alternatives considered, the reasons for the chosen course and the way the conflict was managed. The objective is not to create a paper trail for its own sake, but to make sure that a decision that is defensible in substance is also defensible in form.

III.

Support when the stakes are high.

The most valuable boardroom advice is often delivered before a position is fixed, when there is still room to shape the process. We are comfortable sitting in the discussion, not as a decision-maker but as clear-eyed counsel who can identify the legal and governance implications of each option. We are also used to working at pace, when a board needs a view before a meeting or a shareholder needs to decide how to vote on short notice.

What we advise on

What we advise on

  • Conflicts of interest and related-party transactions for boards and shareholders
  • Board and shareholder decision processes for major transactions and commitments
  • Dutch corporate governance requirements and the Corporate Governance Code
  • Director duties, liability exposure and documentation of board deliberations
  • Strategic options ahead of a sale, buy-out, joint venture or significant investment
  • Shareholder voting strategies and minority shareholder rights
  • Independent advice to supervisory boards and special committees

How we support the process

How we support the process

  1. 1

    We start by understanding the decision, the stakeholders and the timeline. The legal analysis is only useful if it is delivered early enough to shape the process, so we scope the work around the meeting, the vote or the transaction date rather than around a theoretical research question.

  2. 2

    We give a clear view, not a menu of options. Where a course of action is legally available but commercially risky, or commercially attractive but legally difficult, we say so plainly and explain the trade-offs. The board or shareholder can then take the decision with open eyes.

  3. 3

    We document our advice so it can be relied on later. That does not mean lengthy memos: it means a clear record of the issue, the applicable law, the advice given and the assumptions on which it was based. Where appropriate, the advice is shared with the board as a whole so that all directors are equally informed.

Questions clients ask before instructing us

Questions clients ask before instructing us

How does boardroom advice relate to corporate governance?
The two overlap. Corporate governance is about the structures and rules that apply to a company over time. Boardroom advice applies those rules to a specific decision or situation: the question in front of the board, the supervisory board or the shareholders at that moment. In practice the two often come together in one matter.
Can the firm act for both the board and the company?
We can usually do so. The board acts on behalf of the company, and advice to the board is advice to the company. Where a conflict arises between the interests of individual directors and the company, or between majority and minority shareholders, we make clear at the outset who we are advising. We do not act for conflicting parties on the same matter.
Does the firm attend board meetings?
We do when it is useful. Our role is to advise, not to vote. We are often most useful in the preparation phase, helping the board papers to set out the legal and governance issues clearly, and then available during the meeting to answer questions as they arise.
What kind of conflicts does the firm advise on?
Common examples include a management buy-out where the directors are also the buyers, a sale to a party related to a significant shareholder, a joint venture between the company and a vehicle in which a director has an interest, and a decision by a shareholder to vote on a transaction in which it is itself a party. Each requires a different analysis of abstention, disclosure and approval.
How does this differ from a fairness opinion?
A fairness opinion is a valuation-based conclusion, typically provided by a financial advisor, that a transaction is fair from a financial point of view. Our advice concerns legal and governance matters: whether the process is correct, whether the conflict is properly managed, whether the required approvals have been obtained, and whether the decision-makers are protected. The two can be complementary, but they are not the same.

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