Konzernorganisationsrecht heute

The Swiss law of groups of companies is characterized by a scarcity of statutory rules, judicial pragmatism, and a flexible application of the rules by companies. Unusually, the density of statutory rules in this domain has decreased in recent years. In this article, the author summarizes the current status of the organizational law of groups of companies and takes a closer look at selected aspects. The organization of groups of companies is mainly governed by liability norms, in particular directors’ and officers’ liability. In applying the law, courts should recognize companies’ freedom of organization. Courts have also endorsed the controversial scholarly view that the board of a subsidiary only has residual powers under art. 716a para. 1 Swiss Code of Obligations. Contrary to the prevailing view, the author believes that the board’s mandatorily reserved powers are supposed to ensure appropriate decision-making quality, and this objective often requires delegation even of…