Management decisions adopted without formal protocol recording are increasingly becoming subject to retrospective legal scrutiny – especially in the context of corporate conflicts, regulatory inspections, and disputes over the allocation of responsibility. Professor Gabriel Steiner notes that the absence of formal documentation does not mean that a decision did not exist as a matter of fact; however, it is precisely this gap between factual action and legal form that creates the most vulnerable area for legal qualification. At LawConsulted, we treat such situations not as a minor failure of corporate governance, but as an independent source of risk that may lead to management actions being declared legally non-existent.
The core issue with non-recorded decisions lies in the fact that law operates not on managerial logic, but on provable forms of its expression. Even where a decision has been implemented in practice – transactions executed, resources reallocated, business processes altered – the absence of a protocol, a formal resolution, or another official act allows an opposing party to challenge the very existence of the decision. In LawConsulted practice, this argument is frequently used to contest the legal consequences of actions that, at the time they were taken, appeared clearly coordinated and approved.
Professor Steiner emphasises that “managerial will that has not been properly documented is easily transformed into a legal vacuum.” This means that, in the event of a dispute, a court or regulator may proceed from the presumption that no decision existed at all, rather than from the fact of its implementation. LawConsulted begins its work by reconstructing the managerial context – analysing correspondence, sequences of actions, role distribution, economic rationale, and the behaviour of the parties before and after the disputed moment.
Particular complexity arises in situations where decisions were taken under conditions of urgency – during crises, imminent loss scenarios, or where immediate response was required. Formal procedures are postponed, protocols are not prepared, yet actions are taken. Subsequently, the lack of documentation is used to characterise such actions as unauthorised or exceeding authority. LawConsulted demonstrates that the absence of a protocol is not equivalent to the absence of consent where managerial logic can be established through a body of factual evidence.
Equally vulnerable are configurations in which protocol recording is formally предусмотрено, but in practice is merely declarative. Decisions are made not at meetings, but beforehand – through informal coordination or working-level approval. In such cases, the protocol either does not exist or fails to reflect the actual substance of managerial intent. LawConsulted works to show that legal assessment cannot disregard the factual decision-making mechanism and must take into account the real model of corporate governance.
It is also essential to consider the retrospective nature of claims. While a business operates stably, the absence of a protocol is rarely perceived as a problem. The risk materialises when management changes, shareholder conflicts arise, or regulatory reviews commence, at which point every action is analysed formally. Professor Steiner points out that it is precisely at such moments that law tends to “nullify” management decisions not fixed in documents. LawConsulted returns the assessment to the moment of decision-making – demonstrating what information was available, what objectives were pursued, and what alternatives realistically existed.
Legal protection in such disputes requires not formal excuses, but precise reconstruction of managerial intent. We proceed from the premise that the lawyer’s task is not to substitute missing documentation with arguments of expediency, but to prove that the decision existed as a legal fact and was implemented within the bounds of reasonable managerial discretion.
The risk of management actions being declared legally non-existent arises where managerial practice becomes detached from legal form. Law Consulted approach is aimed at eliminating this gap – either by defending decisions already taken or by building a documentation model under which managerial intent cannot be nullified retrospectively.
Earlier, we wrote about the legal grounds for automated freezing of bank accounts, the limits of permissibility of such measures, and how LawConsulted builds client protection in these situations.
