13.3 Research objective and method

My research focuses on the investigation in the context of inquiry proceedings and has a dual objective: a normative description of how investigators should conduct the investigation and how the Enterprise Chamber should, in my view, direct the investigations. The background to this is as follows. As outlined in the paragraphs above, there is a need for legal protection during the investigation phase. The defending parties in the investigation believe that this has not been properly regulated. Both empirical research and legal commentaries and articles confirm this. For that reason, legal protection should be improved. However, this should not be taken too far in curative inquiries, as this would result in making the inquiry process overly complex and protracted and excessively costly. It is important to find a balance.

Meanwhile, there have been improvements. The Inquiry Rights Amendment Act, which entered into force in 2013, introduced a requirement for investigators to give any party mentioned in the report the opportunity to comment on the material findings that related to that party (article 2:351(4) Dutch Civil Code). The inquiry legislation now also provides that an examining judge must be appointed to supervise the investigation (article 2:350(4) Dutch Civil Code). In 2011, the Enterprise Chamber drew up points to consider, recommendations and suggestions for investigators, which were revised in 2013. This is how the Enterprise Chamber responded to calls by legal commentators to set up guidelines for investigators in inquiry proceedings.1 But the improvements have not yet silenced those criticising how investigations tend to be conducted. This criticism comes not only from parties to inquiry proceedings. The Enterprise Chamber is also critical about how some investigators conduct their investigations. There is therefore undoubtedly room for further improvement. My research reveals how that could be facilitated. Based on this, I have produced a normative description of how investigators should conduct investigations in inquiry proceedings. This description has resulted in a large number of specific recommendations for improving how investigations are carried out.

Investigators do not conduct investigations of their own accord. They are directed by the Enterprise Chamber. The Enterprise Chamber selects the investigators, issues their investigative mandate, and draws up the investigation budget. The examining judge supervises the investigation. Both the examining judge and the Enterprise Chamber itself can issue instructions to investigators. However, this takes place only at the request of one of the parties, not as part of any judicial duties. Furthermore, the Enterprise Chamber does not systematically assess the investigators’ product, the report. However, the requirements that the Enterprise Chamber imposes on reports and indirectly, therefore, on investigations, can be inferred from second-phase decisions, among other things. My second research objective is to describe how the Enterprise Chamber should direct investigations. My hypothesis before starting my research was that the Enterprise Chamber could direct investigations considerably better than it does at present.

The research methods that I used are as follows. Firstly, I studied all decisions of the Enterprise Chamber and the Supreme Court in inquiry proceedings since 2001. Where relevant, I also included older decisions in my research. Naturally, in addition to case law, I studied other sources relevant to the right of inquiry, such as the parliamentary background of the legislation concerned, advisory reports of the Social and Economic Council (SER) and the Company Law Commission, and relevant legal commentaries and articles. I also systematically compared the rules for investigations in inquiry proceedings with the rules for court-ordered expert examinations in civil proceedings. This internal legal comparison is interesting for two reasons. The first is that inquiry proceedings and court-ordered expert examinations in civil proceedings developed independently of each other and their legal rules differ, while the duties of investigators in inquiry proceedings and those of experts who conduct court-ordered examinations in civil proceedings are to some extent the same. As a result, a comparison of the two sets of rules offers added value. The second reason why a comparison of the two sets of rules is worthwhile lies in the fact that many developments have taken place in recent years in relation to courtordered expert examinations in civil proceedings, both among legal commentators and in legal practice.

In addition to court-ordered expert examinations, investigations are also conducted by investigative institutions such as the Dutch Safety Board and by investigative committees appointed on an ad hoc basis. In relation to this, studies were conducted into the principles of proper investigation that these investigative institutions must observe. The investigative institutions have also established relevant rules, such as investigative protocols. I included these in my research.

The character of Chapter 8 of this book differs from that of the other chapters. In Chapter 8, I discuss what the impact is of investigators always assessing conduct with adverse outcomes – after all, there are otherwise no valid reasons to doubt the correct policy or correct conduct of business and the Enterprise Chamber would not have ordered an investigation – after the event. The investigators therefore express their opinion with hindsight. The concern of the legal entities and their current or former directors is that the unfortunate outcome of their actions influences the investigators’ view. Evidently, this is undesirable. For that reason, I studied the psychology of opinion forming among investigators and, in the assessment of whether mismanagement occurred, within the Enterprise Chamber too. In the first section of Chapter 8, I describe how hindsight bias can affect the judgment of investigators and the Enterprise Chamber. The second part of this chapter concerns the question of how the influence of hindsight bias on the ultimate judgment can be avoided as much as possible.