Disney in a Comparative Light

This article uses a comparison of the recent Delaware Supreme Court decision in the Disney litigation and the recent German Federal Supreme Court decision in the Mannesmann case as a lauching point to explore six important differences between Delaware and German corporate law, including the different degrees to which Delaware and German courts defer to the business judgment of corporate directors; the greater suspicion in German versus Delaware law of the ability of so-called disinterested directors to protect the corporation in dealing with other directors; the impact of employee representation on the corporate board under German law when it comes to board decisions dealing with executive compensation; the very different legal and societal attitudes toward compensation of senior executives in Germany versus the United States; the far lesser ability of shareholders to waive fiduciary obligations under German law than under Delaware law; and the potential unintended impact of various procedural rules that make shareholder suits less viable in Germany than in Delaware.