A director's conflict of interest in multi-member boards
Getir founders excluded from a decision on their own equity
The Getir judgment concerns a fundamental question in corporate litigation: may a fellow director exclude a colleague from the meeting? In the Getir case the executive directors decided precisely that, with the approval of both the Enterprise Chamber and, ultimately, the Supreme Court.
Getir B.V. is the Dutch holding company of the international delivery group of the same name, with Turkish roots. The founders hold approximately 21% of the shares. Mubadala, an Abu Dhabi state fund, is the largest financier with approximately 29% and had over USD 450 million in credit outstanding. In June 2024 the parties concluded a Term Sheet: the core activities in Turkey would be transferred to Mubadala, and the founders would acquire shares in the remaining, partly loss-making, subsidiaries.
These arrangements broke down at the end of 2024. On 30 December 2024 Mubadala pulled the plug: the Term Sheet was no longer workable, and if the founders did not accept the Final Offer, Mubadala would agree a Settlement directly with Getir under which all subsidiaries would be transferred to Mubadala against release of the debts. At that point the cash flow forecast showed a growing shortfall of USD 58 million by mid-March 2025.
On 31 December 2024 the executive directors determined that the founder-directors, the Founder Directors, had a conflict of interest: they had a personal interest in the Term Sheet (which delivered their shares in the subsidiaries), and acceptance of the Mubadala transaction made performance of the Term Sheet impossible. The executive directors took the decisions on 7 and 10 January 2025 in the absence of the Founder Directors. An extraordinary general meeting approved the decisions on 19 January 2025 with just over 59% of the votes.
Fellow directors decide, not the director concerned
The Founder Directors turned to the Enterprise Chamber, claiming that it was for them to assess whether they had a conflict of interest. That complaint failed both before the Enterprise Chamber and before the Supreme Court.
In ground 3.2.3 the Supreme Court sets out the rules clearly. Section 2:239(6) DCC provides that a director does not take part in deliberation and decision-making where he has a direct or indirect personal interest that conflicts with the interest of the company. But the statute does not regulate who determines whether such an interest exists. The Supreme Court fills that gap: the director with a possible conflict of interest must be as open as possible and report his possible interest to his fellow directors. Where there is a dispute about whether that interest actually exists, the other directors decide, not the director concerned.
That rule also applies where the director concerned has made no report at all. Once the fellow directors judge that there is a conflict of interest, they must actively ensure that the director concerned indeed does not take part in the decision-making on that subject. In the Getir case that threshold was met: the executive directors had already expressly discussed the conflict of interest with the Founder Directors on 31 December 2024. It could come as no surprise that the decisions were later taken in their absence.
What does this mean for directors in a shareholder dispute?
This judgment has direct consequences for practice in boards where shareholders are also directors, a situation that is common in private limited companies. As soon as a shareholder-director has a personal interest in a decision that runs counter to the interest of the company, his fellow directors may exclude him. He need not even have acknowledged that interest himself. The threshold is whether it can reasonably be doubted that, in the decision-making, he is guided solely by the interest of the company.
That is also precisely the order the Supreme Court indicates: fellow directors may exclude, and the court reviews afterwards. Not the reverse route, first admitting oneself to the meeting and leaving the colleagues to litigate. A director in a conflict situation is well advised to make a clear analysis of the conflict of interest before decision-making takes place. See also the previously discussed 50/50 deadlock in shareholder disputes and the Enterprise Chamber case law on inquiry petitions and the statutory dispute resolution.
Frequently asked questions
What is a director's conflict of interest?
A director has a conflict of interest within the meaning of Section 2:239(6) DCC where he is faced with such incompatible interests that it can reasonably be doubted whether, in his actions, he is guided solely by the interest of the company. Whether that is the case depends on all the circumstances of the case.
Must a director always report his conflict of interest himself?
Yes, the director has an active duty to report to his fellow directors. But the Supreme Court makes clear that the consequences of a conflict of interest, exclusion from deliberation and decision-making, may also arise where the director has failed to report. The fellow directors may then take the initiative themselves.
What if all directors have a conflict of interest?
Section 2:239(6) DCC provides a way out in that case: if no board resolution can be taken because of the conflict of interest, the supervisory board takes the decision. If there is also no supervisory board, the general meeting takes the decision, unless the articles of association provide otherwise.
Supreme Court 10 April 2026, ECLI:NL:HR:2026:592
Cited case law
Supreme Court: ECLI:NL:HR:2026:592