Suchergebnisse für Überschuldung

Sanierungsausnahme und selektives Opting out/up – ein Vergleich

If a listed company is in financial difficulties and has found a potential restructurer who wishes to acquire a larger shareholding but does not wish to be under an obligation to make an offer to acquire all listed equity securities of the company, under the Swiss takeover law two alternatives stand in the foreground: applying for an exemption from the obligation to make an offer for…

Die Auswirkungen des Covid-19-Solidarbürgschaftsgesetzes auf das Aktienrecht

In spring 2020, the Swiss Federal Council launched, among other things, the Covid-19 credit programme in response to the Covid-19 pandemic. About 20% of all Swiss corporations have subsequently taken out a Covid-19 loan. Initially, the Covid-19 Joint and Several Surety Ordinance («Covid-19-Solidarbürgschaftsverordnung») served as the legal basis of the credit programme. Later the ordinance was…

Können Investitionskontrollen für gleich lange Spiesse sorgen?

Amidst global protectionist tendencies and in view of major takeovers by foreign state-controlled companies calls for increased public control of foreign investment have been getting louder around the globe. Most recently, the Swiss parliament approved a motion obliging the Swiss government to prepare a draft bill regarding foreign investment screening. Apart from national security concerns,…

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…

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…

«Exit» aus der Nachlassstundung nach erfolgreicher Sanierung – ­Erste Erkenntnisse zum neuen Art. 296a SchKG

Under Swiss insolvency laws, companies in financial distress aiming at a restructuring rather than a winding-up can opt for a debt-restructuring moratorium (Nachlassstundung) as an alternative to bankruptcy proceedings. While composition proceedings are significantly less frequent in practice than formal bankruptcy proceedings, they are often used by major companies with numerous employees and a…

Anspruch auf Sicherstellung bei Kapitalherabsetzung und Liquidation

The article analyses the creditor’s right to ask for his/her claim to be secured in the procedures of capital ­decrease and liquidation. The strict and very similar rules in both procedures aim to protect the creditors. The authors conclude that a creditor’s right to ask for security shall be subject to the same requirements in both procedures. In this article, the authors state the following: (i…

Uneasy lies the head that wears a crown – Zur Rolle des Verwaltungsrates in schweizerischen Publikumsgesellschaften

The board of directors of a Swiss public company is stuck between a rock and a hard place. Shareholders breathe down directors’ necks with earnings expectations, but the results are delivered by an executive management under the board’s control rather than by the board itself. The executives who run the business on a day-to-day basis know the company better than the board. This allows them to…

«Gute Praxis» der Unternehmensführung: Was gehört sich und was funktioniert?

The legal means influencing the practice of the board are very largely the rules on director’s liability. The case law of the Federal Court has recently made these rules more efficient and more foreseeable through the development of a Swiss version of the Business Judgement Rule (BJR). They could be further improved if the Courts were to integrate Corporate Governance models in the BJR condition…

Finanznotlagerecht

The Bill of 2016 for a revision of the Swiss Corporation Law addresses, with new and quite lengthy dispositions, the thorny problem of corporate reorganizations in the event of upcoming financial difficulties. On the one hand, the classical and quite formal equity-related ­approach of European Continental Law to prevent ­«unlawful trading» is maintained, i.e. the Board’s duty to take immediate…