Depending on the situation and corporate culture, high-risk processes are either postponed to the shareholder or supervisory board level to receive instructions or have others decide. Or, everything is discussed and explored until all risks are supposedly eliminated, and a collective, unanimous decision is reached – if the business opportunity still exists at that point. When insolvency is imminent and financial leeway is limited, progress often grinds to a halt. The driving force behind all this is the fear of reputational damage, career setbacks, and personal liability.

However, more courage is certainly warranted. According to established case law on the Business Judgment Rule – which now applies in many countries – liability for breach of duty in business decisions only arises if management assumes a “high, unavoidable risk” for which “no reasonable justification is apparent.” There is considerable leeway, which includes not only the conscious acceptance of business risks but also the acceptance of the possibility of misjudgments and miscalculations.

Of course, it is always necessary to exhaust all available sources of information and to carefully document the decision. Because case law requires “comprehensive information,” management will also increasingly have to incorporate artificial intelligence into its decision-making – with the associated risk of AI-generated hallucinations. Validating and critically examining the AI’s results using primary sources is essential. Furthermore, the opportunities and risks, as well as the advantages and disadvantages of the decision, should be weighed in a documented manner. If, despite this, the decision fails and causes damage to the company, management can exonerate itself and avoid personal liability. From a legal perspective, therefore, there is no need to “carve out the goals” or eliminate all risks. This is neither required by law nor by the courts.