From the magazine SZW-RSDA 5/2019 | S. 465-480 The following page is 465

Konzept und Praxis der aktienrechtlichen Sanierung

This essay deals with capital loss and overindebtedness and the related duties of the Board of Directors according to the current Swiss Code of Obligations. Furthermore, a look is taken at the future Swiss restructuring law. It has been concluded that Swiss restructuring law does little credit to its name as most restructuring proceedings end in bankruptcy of the respective company. One possible reason for this could be that Swiss restructuring law does not contain sufficiently clear and early warnings to the Board of Directors, in particular with regard to the obligation to prepare a liquidity plan and to take appropriate restructuring measures. As long as such warnings are mainly triggered by the existence of a capital loss, not much will change, as it is then usually already too late for a successful restructuring. Also, Swiss restructuring law should offer more legal certainty, otherwise the liability risk of the Board of Directors will further increase. Last but not least,…