From the magazine SZW-RSDA 5/2019 | S. 454-464 The following page is 454

Aktienrechtliche Verantwortlichkeit: Zur gerichtlichen Prüfungsbefugnis im Anwendungsbereich der Business Judgment Rule (Zurückhaltungsregel)

In the context of directors’ and officers’ liability, the ­so-called Business Judgment Rule and its Swiss equivalent – which is also referred to as the Rule of Restraint (Zurückhaltungsregel) – aim to protect the exercise of discretion when making business decisions. According to the Swiss Federal Supreme Court, the judicial review of business decisions must be conducted with restraint if i) the decision was taken absent any conflict of interest, ii) it was based on adequate information and iii) was reached in a sound decision making process. This essay discusses the extent to which the judicial examination is to be carried out where the Rule of Restraint applies. It also performs a detailed analysis of the case law of the Swiss Federal Supreme Court, which has made reference to a test of defendability (Vertretbar­keitsprüfung). The author comes to the conclusion that, rather than reviewing the actual business decisions themselves, the review should focus on the decision-­making…