Die Pflichten des Verwaltungsrates bei drohender Zahlungsunfähigkeit nach neuem Aktienrecht

On 19 June 2020 the Swiss parliament adopted the final text of the new provisions of the Swiss Code of Obligations relating to the revised law on companies limited by shares. Among other things, the relevant provisions cover situations of financial distress and apply to companies limited by shares as well as to other company forms.

Aside of the pre-existing legal provisions governing the capital loss (now in amended form in Art. 725a CO) and the over-indebtedness (now in amended form in Art. 725b CO), the revised law is newly implementing the event of «imminent insolvency» (new Art. 725 CO), a non-capital related condition, triggering particular duties of the board of directors of a company limited by shares. The board of directors’ duties based on the new Art. 725 CO are primarily related to private restructurings. The legislator seems to give preference to private restructuring activities over the instruments of bankruptcy and liquidation proceedings relating to companies.

In this…