Leuchttürme oder Untiefen?

Sometimes, courts must remain silent for many years on important questions, simply for lack of cases, until we find ourselves suddenly confronted with unexpected decisions. This happened with the possibilities corporations had to deal in their by-laws with blockage situa­tions in the shareholder meeting. The Federal Tribunal overturned last year a decades old rule enabling companies to attribute the casting vote to the president. The Tribunal now found this proceeding to be illegal. In the future, only decisions made by drawing lots will be lawful to overcome deadlocks, with some nuances.

In the very different field of director’s liability, the Tribunal had to deal with the proof of the damage caused by trading despite over-indebtedness. The Judges burdened the plaintiffs with high hurdles, to the point that the new conditions may jeopardize, in many instances, the foreseeability achieved recently through the introduction of the business judgment rule. One cannot but hope that the…