Page 60 - Albanian law on entrepreuners and companies - text with with commentary

1. Articles 14 to 18 provide ‘fiduciary duties’ and adopt general European Law principles.
This is an important device for shareholders, creditors, employees and the public.

2. Before discussing fiduciary duties in more detail, a particular comment is needed on the
standard of application. As we will see in the following, fiduciary duties give the courts a
notable space for the development standards which correspond to local business ethics and
practice. Not only in the so-called Common Law countries, where the legal system has been
traditionally based on jurisprudence and precedents, but also in Civil Law countries, modern
jurisprudence is part of the continuous adaptation of the legal system to changing social
norms. There are, for example, entire areas in German law which originally were developed
by the jurisprudence of higher courts and much later also became new legislation. This was
the way the German Civil Code was adapted to modern social relationships. Consumer
protection is an example. Formally equal contractual relationships designed by the Civil Code
were not adequate to stop extreme differences in bargaining power which is seen in a modern
consumer-driven society.
The Federal Court, therefore, developed standards which realistically reflected
consumers’ inequality; unfair standardized contractual clauses are an example here. Later, the
standards developed by the Federal Court entered German and European legislation. The
German Civil Code reform of 2000 is another example. It was the first huge legislative
restructuring of the Code in 100 years and incorporated 50 years of post-war German and
European jurisprudence and legal practice. However, such legislative reform procedures are
long and cumbersome and cannot keep pace with the necessity of giving adequate legal
answers in a continuously changing world. Judges have an increasingly prominent role in this
respect. So, general clauses or terms which require thorough legal research and discussion in
order to reach an adequate answer are definitely part of the profession. A judge has the
responsibility to find the right (‘just’) answer in each case, a solution which tries to satisfy a
citizen’s right to justice in the evolving social conditions of the time. Judicial self-restraint,
once praised as a noble gesture of the Civil Law judge in obedience to the law, is not capable
of serving as a model under these circumstances. Instead, developing adequate application
standards under an evolving law is more than ever the real hallmark of judges’ professional
autonomy and independence.

Article 14
Principles
(1) When exercising their membership rights, partners, members and shareholders
are obliged to adequately take into consideration the interests of the company and of the
other partners, members or shareholders. The same duty applies to managing members
and directors and the members of the Board of Directors and Supervisory Board.

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