Dr. iur., LL.M., Attorney-at-law, Partner
Education and Experience
Shareholders of closely held companies often mutually agree on additional contractual rights and duties. However, the company itself cannot be a contract party to a separate shareholders' agreement. Apart from that legal restriction, such shareholders' agreements usually benefit from the contractual freedom of the parties. A recent Federal Court decision confirmed that such agreements may be recharacterised as abusive or contrary to the principle of good faith.
A recent Zug Cantonal Court decision sheds light on the way that Swiss company articles of association must be interpreted under Swiss company law in cases in which they are not only applicable internally among a few shareholders, but also have an effect on third parties. The decision confirms that the observation of merely the letter and not the spirit of company articles by a company board or majority company shareholders in a general meeting can even amount to an abuse of law.
A recent Swiss Federal Court decision clarified the circumstances under which the personal liability of board members or managers of a Swiss company for their business decisions and omissions can be reduced by applying the so-called 'business judgement' rule or, if the related prerequisites are not met in a particular case, based on other grounds.
The Federal Supreme Court recently clarified how to deal with defects in company organisation caused by deadlock between two equal shareholders. For the first time the court has confirmed that courts are authorised to order a share auction in such cases. However, it is strongly recommended that such a harsh outcome be avoided by installing suitable measures to solve conflicts from the outset.
On July 1 2015 a new regime for bearer shares in Swiss companies was enacted, introducing new legal obligations for company boards and shareholders and severe penalties for cases of non-compliance. To achieve transparency the Code of Obligations established a general duty for all owners of bearer shares in non-listed Swiss companies to disclose their ownership, identity and address to the company within one month of their acquisition.
The Federal Supreme Court recently clarified exactly when board members and their close associates and affiliates must return benefits received from a Swiss company because they are manifestly disproportionate to the value of their related performance and the company's overall economic situation.
The Federal Supreme Court recently decided an appeal against a Zurich Commercial Court decision. The Federal Court clarified company law issues in relation to intra-group loans and cash-pooling systems.The decision limits the amount of free reserves which can be paid out as dividends for as long as loan advancements to other group companies exist which are not at arm's length within the Swiss company.
A recent Zurich Commercial Court decision risks jeopardising the use of cash pooling by setting overly onerous standards for the characterisation of an intra-group payment in the cash pool as a legally permitted intra-group loan. Many existing cash pools involving Swiss group companies would violate Swiss law, and the legality of a large amount of dividends already paid by such group companies to their holding companies would be questionable.
Following Switzerland's vote in favour of an initiative against excessive salaries for board members, the federal government has recently adopted the respective implementing ordinance. Swiss listed companies must start early to implement all changes to their articles, regulations, employment contracts and annual general meeting voting procedures, as these decisions fundamentally affect the rights of their shareholders.
The Federal Supreme Court recently clarified that the Lugano Convention offers the possibility to choose Switzerland as a neutral jurisdiction for companies domiciled in any of its member states, even if the companies are not domiciled in Switzerland. The court also clarified that standard form contracts available only by fax are insufficient, but contracts available only online are sufficient to fulfil the conditions of the convention
In the wake of a recent Supreme Court case, diligent board members of Swiss companies would be well advised to minimise their personal liability before launching lawsuits on behalf of their company by seeking legal advice on the related personal liability risk. The consultation should not be limited to a mere assessment of legal issues, but should also include whether a claim on behalf of the company has merit.
Switzerland recently voted in favour of an initiative against excessive salaries for board members and executives. New transparency rules and a rigid regime on a binding say on the pay of board members and executives must be enacted. Once enacted, shareholders must vote annually on the aggregate compensation for the board, advisory board and executive management.
On January 1 2013 a new accounting and auditing law will enter into force in Switzerland. The new law establishes uniform requirements for all kinds of business, irrespective of their form of incorporation, by introducing the 'same size, same rules' principle. Unlike under certain international reporting standards, consolidated financial statements will usually be required only if the size of a business exceeds certain thresholds.
Before the conclusion of a new franchise agreement, franchisors usually have more knowledge than franchisees about the particular franchise. A franchisee thus risks entering into a permanent binding contract without an accurate prior assessment of the consequences. To counterbalance this information asymmetry, certain duties of care are imposed, of which the franchisor's pre-contractual information obligations are paramount.
Standard form agreements are used regularly in franchising. In principle, contractual freedom applies to such standard form agreements. However, the franchisor must keep in mind certain aspects before submitting a standard form agreement to the franchisee for signing.
For the drafting and implementation of franchise agreements, it is paramount for parties to respect the boundaries of the Act on Cartels and Other Competition Restraints. In all cases, franchisees must ensure that their prices are set independently and franchisors must not restrict passive sales by one franchisee in any market assigned to another franchisee.
Courts must determine whether each franchise relationship is based on all its economic characteristics, or whether it is a partnership franchise or a subordination franchise. A recent court decision provides detailed guidance on how franchise systems may be structured from a business perspective, with a view to avoiding any uncertainty to legal characterisation alternatives.
Revisions to the Professional Pension Insurance Act specify requirements for the management of Swiss professional pension insurance assets. The Upper Supervisory Authority for Professional Pension Insurances can now admit both Swiss and foreign financial service providers to manage Swiss professional pension insurance assets. The new law provides for extensive examination of integrity before admission.