We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
15 October 2007
Under Swiss law, a company must be deleted from the Commercial Register once its dissolution is complete. In case of an ordinary liquidation without the involvement of the bankruptcy authorities, deletion takes place after completion of the liquidation, when there are no remaining assets and liabilities. The liquidator then notifies the Commercial Register.(1)
However, the company can be reregistered if previously unknown assets or liabilities surface. Reregistration may be requested by the former liquidators or members of the board of directors, or by shareholders or creditors. The Supreme Court has outlined the requirements subject to which a deleted company can be reregistered in a number of decisions. In most cases re-entry is requested by a creditor. The creditor must show credibly the existence of its claim and that it has interests in the reregistration of the company worthy of protection.
The second requirement is not fulfilled if the creditor can enforce its claim in a different way which is also acceptable to the creditor or if the company has no assets left that can be realized. According to the Supreme Court, the registrar should generally carry out the reregistration, unless the applicant is exercising its rights abusively. This would be the case if the applicant had no legitimate interest.
The Supreme Court recently dealt with a new case involving the reregistration of a company.(2) On December 5 2000 a number of heirs sold 100% of their share capital in a real estate company to another company. The purchase price was determined by a settlement of accounts consisting of the value of the building owned by the real estate company, not including mortgages, interest and other costs. On November 1 2001 the heirs presented to the real estate company a new settlement of accounts that showed a balance in their favour. On December 14 2001 the real estate company was dissolved and the liquidation proceedings started. On the same day, the company which had previously purchased the share capital of the real estate company also assumed all its assets and liabilities. As the balance in favour of the heirs remained unpaid, the heirs filed a claim against both the real estate company and the purchaser company to hold them jointly and severally liable for the balance.
Even though the real estate company was involved in a pending civil lawsuit, it requested its deletion from the Commercial Register on October 1 2003. It became deregistered on June 3 2005. Shortly thereafter, the heirs requested the reregistration of the real estate company to pursue their claim and obtain a judgment. The request was denied by both the registrar and the supervisory authority.
Based on the circumstances, the court presumed that the disputed claim of the heirs was legitimate. Nevertheless, the Supreme Court decided that the heirs had no interest in the reregistration of the real estate company as they could pursue their claim against the purchaser company as a joint and several debtor. Moreover, the Supreme Court considered that the heirs had already filed a lawsuit against the purchaser company which was still pending.
Thus, the Supreme Court denied that the heirs had an interest worthy of protection as they were able to enforce their claim in a different way by pursuing the lawsuit against the purchaser company.
For further information on this topic please contact Markus Dörig or Philipp Schaller at Badertscher Dörig Poledna by telephone (+41 44 266 20 66) or by fax (+41 1 266 20 70) or by email (firstname.lastname@example.org or email@example.com).
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.