Suchergebnisse für aktienrechtliche Verantwortlichkeit

Financement intragroupe et Cash Pooling : Quelle évolution ?

Cross-financing between affiliated companies, a subject at the heart of a group’s strategy, is a daily reality that remains largely ignored by current law and jurisprudence. The latest developments in court decisions seem to increase the discrepancy between the economic needs of the group and the legal requirements for protection of capital of each entity. Thus, since the Swisscargo ruling of the…

Das Aktienkapital im Entwurf zur Aktienrechtsrevision

On November 23, 2016, the Federal Council published its proposal for a revised law on companies limited by shares. This article deals with the share capital, one of the key aspects of the proposed revision. First, it addresses the specific characteristic of Swiss law, according to which shares have a nominal value. Second, the article analyzes how the procedures of capital changes are regulated in…

Vorschläge zur Aktienrechtsrevision

On November 23, 2016, the Federal Council published its proposal for a revised law on companies limited by shares. After the proposal was mainly well received it’s ready to take the next step: Since the Legal Affairs Committees decided to enter into the proposal the National Council will probably hold discussions 2017 (Winter Session). This year’s SZW Conference strongly focused on the proposal…

Leuchttürme oder Untiefen?

Sometimes, courts must remain silent for many years on important questions, simply for lack of cases, until we find ourselves suddenly confronted with unexpected decisions. This happened with the possibilities corporations had to deal in their by-laws with blockage situa­tions in the shareholder meeting. The Federal Tribunal overturned last year a decades old rule enabling companies to attribute…

Besserstellung der Revisionsstelle in der aktienrechtlichen Verantwort­lichkeit? – Prozessrechtliche Bemerkungen zu Art. 759 Abs. 2 E-OR

The draft for the revision of the stock corporation law proposes to limit auditor liability. In case the audit firm has merely caused damage by negligence, it shall be liable only up to the amount it would have to pay due to a recourse claim (draft art. 759 (2) CO). The proposal, which dates back to 1983, does not reliably limit auditor liability. This is because art. 148 (3) CO provides that…

Vorbereitung und Durchsetzung von Aktionärsklagen: Wie kann die Informationsasymmetrie überwunden werden?

In order to improve the enforcement of directors’ liability in solvent companies, it is necessary to improve the access of shareholders to information in order to prepare a derivative suit. The Swiss company law revision project of 2016 provides such improvements by lowering the conditions under which a special audit can be appointed by the court (art. 697a seq. CO). However, the applicants…

Kernfragen der Aktienrechtsrevision

On November 23, 2016, the Federal Council published its proposal for a revised law on companies limited by shares. This article deals with four key aspects of the proposed revision. First, it addresses the proposed amendments regar­ding the capital structure. The authors thereby focus on the rules for capital increases, decreases and the possibility to introduce a so called «capital band». Secon…

Wer kontrolliert die Aktiengesellschaft?

In Switzerland as in other countries, there is a perennial debate relating to the question of who controls a listed company, and whose interests a corporation should serve: the largest shareholders, minority shareholders, or other stakeholders? And what is the influence of management or the recent phenomenon of proxy advisors on decision-making in listed companies? The author analyzes the issues…

Aktuelle Rechtsprechung des Bundesgerichts zum Aktienrecht

During the last two years the Federal Supreme Court issued over 30 company-law cases. The following article discusses two particularly relevant topics of this remarkably rich jurisprudence. A first section deals with cases in which the court had to assess business decisions (in doctrine also referred to as cases of “business judgment rule”). This section provides an in-depth analysis of the three…

Business Judgment Rule und Rechtsrisiken

Legal risks are currently the most dangerous threat for global corporations. This article analyses the question whether the Swiss Business Judgment Rule (BJR) may also provide a “safe harbour” for decisions based on legal uncertainties. This may look surprising, since corporations are bound to comply with the legal environment in which they are operating, therefore illegal behaviour should not be…