Montesquieu en droit des sociétés anonymes : le principe de la parité constitue-t-il une distribution des pouvoirs bénéfiques ou plutôt un lit de Procuste ?

The current system of distribution of powers is governed by the “parity principle”, which provides that a defined number of powers are vested exclusively with the board of directors. The board is responsible for the accomplishment of these “inalienable” powers, the shareholders may not give any instructions or guidance to the board in this respect. The principle suffers only very few exceptions. But recent proposals made in the literature and by the legislator as well as some decisions of the Federal Tribunal seem to shift the balance of powers in favour of the shareholders.

This article argues that the present system of corporate governance allows the shareholders a sufficient say on strategic decisions, especially on investment decisions. This is coherent and in line with the structure of Swiss company law, contrary to the American law that inspired some of the reform proposals. The “parity principle” should therefore not be altered. It may be worthwhile instead, to focus on…