Vorbereitung und Durchsetzung von Aktionärsklagen: Wie kann die Informationsasymmetrie überwunden werden?
In order to improve the enforcement of directors’ liability in solvent companies, it is necessary to improve the access of shareholders to information in order to prepare a derivative suit. The Swiss company law revision project of 2016 provides such improvements by lowering the conditions under which a special audit can be appointed by the court (art. 697a seq. CO). However, the applicants must still bring prima facie evidence of a violation of the law or the articles of association (art. 697d para. 3 P-CO). When the application is made to investigate conflict of interest situations or management decisions, this means that the applicants will need to access information internal to the company even before applying for a special audit, which represents an almost insurmountable obstacle for shareholders. This requirement should therefore be replaced by a legitimate interest requirement like the one prevailing in the precautionary taking of evidence procedure (art. 158 para 1…
