« Comply or explain » : la solution au dilemme des quotas ?

Swiss listed companies are familiar with the “comply or explain” principle imposed by the SIX corporate governance directive, and more recently by economiesuisse’s (private) governance code. In November 2014, the Federal Council proposed to amend the Code of obligations (“CO”) to introduce such a principle in relation with a 30% “women” quota, which would apply to boards of large listed companies. Having in the CO an “obligation” subject to the “comply or explain” would be something entirely new. Irrespective of the possible merits of the quota, how should this new approach be evaluated ? The present article highlights the approach’s constraints and submits two minimal recommendations.