Limits of directors' legal liability in business investment decision-making

A review of supreme court decisions on the business judgement rule

Abstract

The Business Judgment Rule (BJR) is relevant to the boundary between legitimate corporate risk and criminal liability in state-owned enterprises. This article examines the Supreme Court’s decisions concerning the Basker Manta Gummy (BMG) acquisition and the Corpus Christi Liquefaction (CCL) liquefied natural gas (LNG) procurement involving former Pertamina President Director Karen Agustiawan. This normative legal study applies statutory, conceptual, and case approaches, with primary materials comprising the Company Law, anti-corruption legislation, state-owned enterprise legislation, and the relevant court decisions. The comparison shows that the BMG case ended in an acquittal from all legal charges (onslag van alle rechtsvervolging), not a finding that the act had never occurred (vrijspraak). The LNG case followed a different procedural path: the first-instance court imposed nine years’ imprisonment, the Jakarta High Court upheld the sentence, and the Supreme Court later imposed thirteen years’ imprisonment. The cases should not be distinguished merely by alleged benefit to a foreign counterparty or by an assumed absence of conflict of interest. The more legally relevant questions concern the directors’ statutory and internal authority, the information reasonably available at the decision-making time, the treatment of material risks, and the causal connection between the challenged decision and proven actual loss. Article 97(5) of the Company Law provides a defence to civil liability to the company; it does not create statutory immunity from criminal prosecution. The article proposes a contextual, evidence-based assessment framework rather than rigid, cumulative criteria, and recommends coordinated guidance on corporate decision-making and actual-loss assessment.