Suchergebnisse für liquidation du contrat

Les nouveaux droits des actionnaires en matière de restitution et d’accès à l’information

The 19 June 2020 revision of the provisions on the limited by shares company seeks to enhance corporate governance with further transparency and additional shareholder protection. The return of undue benefits claim (art. 678 para. 1 nCO) has been modified to offer Swiss companies and their shareholders a better possibility to obtain redress. This revision also addresses the shareholders’ need to…

Corporate Governance et liberté d’organisation

The question of limits to contractual freedom in corporate law is intensively discussed in connection with corporate governance. In that context, the tension between authority and accountability of the board of directors and the best way to address this issue in corporate law are two of the most controversial topics. Over these last years, the trend in almost all jurisdictions has been to…

Les effets des nouvelles règles sur la prescription en droit bancaire et financier

The partial reform of limitation rules in the Code of obligations, effective since 2020, has limited impact on the banking and financial sector. Yet specific matters call for renewed attention. We analyse the consequences of the new 3-year and 10-year limitation rule for claims based on torts and unjust enrichment, specifically in connection with defective transfers of funds, intermediated…

Entrepreneuriat et incapacité: responsabilité illimitée et direction de sociétés

The contribution focuses on persons under an adult protection measure that deprives them (totally or partially) of civil capacity (legal capacity). The authors consider that the need for protection of these persons is incompatible with any status involving unlimited liability for debts related to a going concern as well as with the functions of a manager of a commercial company. This…

Pièges fiscaux du contrat de prêt

This contribution deals with the tax « traps » of the loan agreement. Loans are usually quite simple from a tax standpoint since they are neutral. Yet, the author examines three specific instances where things do not turn out so well. The first of which is the cancellation of ­indebtedness, which may result in taxable income ­(Article 16 par. 1 or Article 18 par. 1 Direct Federal Tax Law)…

Les frais de procédure et d’investigation sous pression

There has been a sharp increase in appeals relating to FINMA’s investigation and litigation costs. This article takes up recent case law and examines in detail all the legal questions that have been submitted to the federal judges over the past twelve months. The current FINMA’s practice of charging procedural costs to individuals and legal entities irrespective of whether or not they are subject…

Validité et efficacité de la clause shotgun en droit suisse

A shotgun clause establishes a mechanism intended to resolve deadlocks in companies with two shareholders with equal stakes. It enables one of the two shareholders to trigger a procedure which will ultimately result in the purchase of all the shares at a fair price. The offeror initiates the procedure by proposing a certain price for the shares. The offeree then decides whether to sell its shares…

Propositions pour un trust suisse

New voices, including in Parliament, are now calling for the adoption of the trust as an institution of Swiss law. This would provide Swiss residents with a much-needed vehicle for estate planning and structuring. It would also improve the legal certainty and robustness of very common business transactions. Notably it would allow lawyers, notaries and other professionals to protect their clients’…

Die regulatorische Antwort auf FinTech: Evolution oder Revolution? Eine Verortung aktueller Entwicklungen

While technological improvements have shaped the financial industry and its regulation for decades, FinTech is the buzzword of the hour. Rapidly developing digital technologies allow new market entrants to disrupt the traditional intermediary-based provision of financial services (I.). These new businesses – in particular those that operate payment systems or engage in crowdfunding – may clash…

Les avantages (statutaires) particuliers de l’art. 628 al. 3 CO : ­une alternative méconnue aux conventions d’actionnaires

Swiss Company Law provides for a «one size fits all» form of limited by shares companies. The underlying idea is that the articles of association can be customized in order to fit the needs of each particular case. On the other hand however flexibility is limited, in particular due to the fact that besides payment of an emission price for their shares, the articles of association cannot put any…