Volkswagen's Bad Decisions & Harmful Emissions: How Poor Process Corrupted Codetermination in Germany's Dual Board Structure

This Article directly challenges the often argued proposition that Germany's two-tier board of directors is superior to America’s single-tier board structure. It argues that regardless of structure, any decision-making body that lacks effective decision-making processes is at significant risk of failure, scandal, and ineffectiveness. Legal scholars and policymakers have largely ignored the connection between decision-making processes and the efficacy of corporate leadership. The Article is the first to examine this underexplored relationship in the context of the German dual-board. Volkswagen’s 2015 emissions scandal provides a vehicle to critically assess the relationship between Germany’s two-tiered board and an effective decision-making process. This Article argues that the structure of Volkwagen’s dual board did not automatically result in an effective decision-making processes. Additionally, an effective decision-making process—the attributes of which can be found in organizational behavior theory—is essential to helping German boards accomplish their legislative mandate. Moreover, it is essential to helping the boards of transnational corporations, which have a wide range of structural variations, effectively govern the organizations for whom they work. In sum, Volkswagen and other German corporations may follow the structural requirements of German corporate law, but without effective processes, German directors are likely to fail in their monitoring and supervisory roles. Without effective processes, directors are watchers asleep at their post, uninformed, dormant, and ineffective in preventing gross failures of corporate integrity. Unless German boards adopt and implement a Process-Oriented Approach, the Volkswagen emission scandal will simply be another mark on a timeline for a century plagued by corporate failure.