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From the magazine SZW-RSDA 5/2018 | S. 531-546 The following page is 531

Gedanken zum einstweiligen Rechtsschutz gegen pflichtwidriges Handeln von Verwaltungsräten*

Swiss law does not allow for the challenge of resolutions taken by the board of directors of a corporation, and only in extreme cases they may be deemed null and void. However, according to a recent decision by the Swiss Federal Supreme Court, this does not exclude claims against a corporation to enforce statutory rights that were denied by the board of directors. Against the background of this decision, the article analyses possibilities to obtain injunctive relief against impending actions of the board of directors. In particular, it reviews situations in which shareholder participation rights are violated by a board disregarding the powers attributed by law to the shareholders’ meeting. It then discusses the duties of loyalty and care of board members and whether injunctive relief may be based on an impending breach of these duties. While there seems to be a general view that the principle of non-challengeability of board resolutions excludes virtually any legal remedies (other…

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