Art. 704 OR und Minderheitenschutz: Eine aktienrechtliche ­Kurvendiskussion

Majority requirements for shareholder resolutions are an important element of minority protection in corporate law. Swiss learned writing ascribes such minority protecting effect to article 704(1) of the Code of Obligations (CO), which requires certain important shareholder resolutions to be taken by a supermajority of two thirds of votes represented and the absolute majority of capital represented.

In this article, the author compares the effects of art. 704(1) CO with a “majority-of-the-minority” rule (“MoM rule”) that the author has suggested in prior work as a default rule. The two rules are compared in terms of their effectiveness in protecting minority shareholders and the so-called holdout problem, i.e., the risk that a small minority blocks value-increasing shareholder resolutions.

The author demonstrates that art. 704(1) CO has a limited and paradoxical minority protecting effect, while the holdout problem seems to be of little import. The MoM rule, in contrast, protects…