BETWEEN CONFIDENTIALITY AND DISCLOSURE. THE CONTOURS OF THE DUTIES OF THE BOARD OF DIRECTORS OF A PUBLIC COMPANY RELATING TO INFORMATION ABOUT BUSINESS ACQUISITION TRANSACTIONS

This article examines the confidentiality and disclosure duties imposed on directors of publicly traded companies in the context of negotiations to acquire a target. It analyzes how directors must balance their obligation of confidentiality, rooted in the need to prioritize the corporate best interest, with mandatory disclosure rules, founded on the general interest in the proper functioning of the securities market. This article argues that, while the rule is to maintain confidentiality to protect the shareholders’ interests, there are exceptions requiring disclosure of certain events in contexts where safeguarding the securities market outweighs the general protection of corporate interests guiding the directors’ decisions. Additionally, the counterexceptions of “confidential information” arise in situations involving significant risks to corporate interests, thus returning to the general rule of confidentiality.