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From the magazine SZW-RSDA 3/2016 | S. 254-268 The following page is 254

Business Judgment Rule und Rechtsrisiken

Anerkennung einer Legal Judgment Rule für rechtlich gebundene Entscheide von Unternehmensorganen

Legal risks are currently the most dangerous threat for global corporations. This article analyses the question whether the Swiss Business Judgment Rule (BJR) may also provide a “safe harbour” for decisions based on legal uncertainties. This may look surprising, since corporations are bound to comply with the legal environment in which they are operating, therefore illegal behaviour should not be protected. In reality, the legal environment is often not as clear-cut as in theory, as the saying goes: “You manage legal risks, you don’t clear them”. This article therefore explores the dogmatic opportunities to recognise a Legal Judgment Rule in Swiss liability law for corporate bodies. This rule is conceptually based on the BJR, but broadens the concept so that it can also encompass decisions based on legal uncertainty. If a corporate body (e.g. the board) complies with the requirements laid out in this article, a judge shall in hindsight only control the decision for “irrationality” (…

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