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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. Introduction
- II. History of the ÜBest
- III. General transitional rules of the ÜBest (Art. 1 ÜBest)
- IV. The Individual Transitional Provisions of the Stock Corporation Law Revision
- V. Transitional legal issues that have not been explicitly legalized
- Bibliography
- Materials
I. Introduction
1 Most of the provisions of the new Stock Corporation Act entered into force on January 1, 2023. Some provisions already entered into force on January 1, 2021 (below n. 88 and n. 101). With regard to the transition from the old to the new Stock Corporation Law, the "Transitional Provisions to the Amendment of June 19, 2020" are of central importance. These provisions are also relevant for other corporate forms such as the GmbH and the cooperative. As so-called intertemporal law, they are dedicated to the delimitation of successive stock corporation law systems. The term transitional law is used synonymously. Intertemporal law determines whether the old or the new stock corporation law applies to a particular set of facts.
2 In this Commentary, "Art. x ÜBest" is used to refer to corresponding norms of the transitional law commented on here. Art. x aOR" is used for references to stock corporation law prior to January 1, 2023. The new stock corporation law is referenced with "Art. x nOR" (as are provisions that have been amended in other laws). Reference is made to a norm of the CO without prefixing an "a" or "n" if both old and new law are covered.
3 If no reference is made to special features of the GmbH or the cooperative, the norms of stock corporation law are stated in each case without additionally referring to their counterparts in the GmbH as well as in the cooperative law.
II. History of the ÜBest
4 As a rule, the transitional provisions of a draft law are neither the focus of parliament nor of public perception. This was also the case with the revision of the Stock Corporation Act of June 19, 2020. Parliament minimally adjusted the transitional provisions provided for in the draft law only in two respects: First, Art. 3 ÜBest speaks of "capital increase from conditional capital" whereas the draft spoke of "conditional capital increase" (cf. Art. 3 E-ÜBest). On the other hand, the Parliament extended Art. 6 ÜBest from "adaptation of old-law employment contracts" to "adaptation of old-law contracts" (cf. Art. 6 ÜBest). This intervention is welcome because the norm thus also covers other contractual relationships such as assignment or subordination (cf. below n. 97 and n. 99). Regarding Art. 4 ÜBest, amendments to the draft law were discussed (shorter transition periods; automatic abrogation after ten years [sunset clause]).
5 The formation of a cooperative and the amendment of its articles of association now require - as with the AG and the GmbH - a public certification (Art. 830 and Art. 838a nOR; "level playing field"). The possibility of a simplified formation could not be accepted in parliament. For this reason, Parliament also deleted Art. 7 ÜBest, which provided for a simplified (simple) written amendment of the articles of association for cooperatives for two years. Thus, the Parliament renounced a transitional relief.
III. General transitional rules of the ÜBest (Art. 1 ÜBest)
6 The effects of a new or revised law on existing legal positions are an essential aspect of transitional provisions. The transitional provisions of the stock corporation law revision of June 19, 2020, are aimed at companies originating from an old legal system, i.e. formed before January 1, 2023. On the one hand, they are intended to ensure that these companies adapt to the new legal system within a reasonable period of time so that it can be applied without restriction. On the other hand, legal relationships established under an old legal system must be protected and transferred to the new legal system in good faith. In order for the legislator to achieve its legislative goals as efficiently as possible, an orientation towards the effects on those subject to the law is crucial. Undesirable side effects must be minimized. The legislature may therefore be required to legislate appropriate transitional provisions - even though federal laws that contradict these principles remain applicable on the basis of Art. 190 FC. If several interpretations of the transitional provisions are possible, the one that best meets the constitutional requirements must be chosen. However, such an interpretation is limited by the clear wording of a transitional provision.
7 The transitional law to the new company law is introduced with a basic rule. According to Art. 1 para. 1 ÜBest, Art. 1 to Art. 4 SchlT ZGB apply in principle. These provisions apply insofar as the other ÜBest "do not provide otherwise" (see below n. 24 ff.). This is the general part of Swiss intertemporal law (margin under Art. 1 SchlT ZGB: "General provisions"). In intertemporal law, Art. 1 to Art. 4 SchlT ZGB form the general part. They are consulted if special intertemporal provisions are missing (used to fill gaps) or if special intertemporal provisions are unclear (used for interpretation). Even without this legal reference, Art. 1 to Art. 4 SchlT ZGB would apply if no special intertemporal provisions exist. The reference in Art. 1 para. 1 ÜBest is therefore of a declaratory nature. Art. 2 to Art. 7 ÜBest take precedence over Art. 1 to Art. 4 SchlT ZGB as special provisions. As special transitional law, however, they are to be interpreted with the help of Art. 1 to Art. 4 SchlT ZGB.
8 Anyone who invokes old law bears the burden of proof for the relevant facts or factual assertions. The presumption of the exclusivity of the new law applies.
9 According to the correct view, intertemporal law - unless a statutory exception exists - is mandatory law. Accordingly, an intertemporal choice of law is not possible. However, terminated or conditional amendments to the articles of association are possible, which are often also discussed in connection with the intertemporal choice of law (see below n. 59). Since the effect of the new law by operation of law can only take effect from January 1, 2023, scheduled or conditional amendments to the articles of association are not an intertemporal choice of law. The new law could not be applied by the General Assembly before January 1, 2023.
A. Meaning of Art. 1 to Art. 4 SchlT ZGB (Art. 1 para. 1 ÜBest)
10 Art. 1 SchlT ZGB states the rule of non-retroactivity in the objective version. This is a rigid formula without consideration of certain valuations. However, values are added by Art. 2 to Art. 4 SchlT ZGB, which constitute the rule of non-retroactivity in the subjective version. Art. 2 to Art. 4 SchlT ZGB regulate the exceptions to the basic principle of non-retroactivity in the sense of Art. 1 SchlT ZGB.
1. Principle of non-retroactivity (Art. 1 SchlT ZGB)
11 The principle of non-retroactivity contained in Art. 1 SchlT ZGB generally provides that new provisions are not applied to facts that occurred before their entry into force. Art. 1 para. 1 SchlT ZGB states with regard to facts under old law that these must continue to be judged under old law after the new law comes into force. The principle of "old fact - old law" applies.
12 The term "fact" is controversial. The prevailing doctrine understands "fact" to mean any event that entails a legal effect. A legal effect means the establishment, modification or cancellation of a legal relationship. Another view subsumes under "facts" all circumstances of the sensory world. The "facts" understood in this way can be divided into old-law or new-law facts.
13 The principle of non-retroactivity applies only to completed facts. Facts that begin under old law and continue under new law are not covered by it (so-called permanent facts). These include, among other things, the organization of a company and the legal status of the persons involved in it. In these cases, the new law applies from the time of entry into force (cf. also Art. 3 SchlT ZGB).
14 Acts within the meaning of Art. 1 para. 2 SchlT ZGB are those facts which are dependent on the will of a person. This is a subtype of facts. Those facts which materialize independently of the human will are called events. In this respect, Art. 1 para. 2 SchlT ZGB merely repeats the statement of Art. 1 para. 1 SchlT ZGB explicitly for acts under the old law (cf. above n. 11).
15 Art. 1 para. 3 SchlT ZGB states the principle that facts under new law are judged according to new law (lex posterior derogat legi priori). Exceptions are reserved. These include leges speciales and the cases of Art. 1 para. 1 and para. 2 SchlT ZGB. A fact under new law which is merely the basis of a fact under old law which is subject to a dependent change or a loss is also subject to old law. According to the Federal Supreme Court, this includes the exercise of an old-law right of sale after the new law has come into force. According to the Federal Supreme Court, this case was governed by the old law. 2.
2. The exceptions to the principle of non-retroactivity within the meaning of Art. 1 SchlT ZGB according to Art. 2 to Art. 4 SchlT ZGB
16 The principle of non-retroactivity just described does not apply if one of the exceptions set out in Art. 2 to Art. 4 SchlT ZGB applies. Art. 2 SchlT ZGB concerns matters of public order and morality (below n. 17 f.). Art. 3 f. SchlT ZGB concern the protection of certain positions of trust. These facts are either independent (Art. 3 SchlT ZGB) or dependent on the will of the parties involved (Art. 4 SchlT ZGB). Art. 3 and Art. 4 SchlT ZGB are a uniform concept, which is why they are treated together below (below n. 19 ff.).
a. Retroactivity in favor of public order and morality (ordre public; Art. 2 SchlT ZGB)
17 Art. 2 SchlT ZGB grants a special status to provisions that are established for the sake of public order and morality. According to Art. 2 SchlT ZGB, retroactivity is permissible in these areas. Whether it is such a norm is a question of interpreting the legal policy motives that led to the revision of the law. The mere fact that a new provision constitutes mandatory law is not sufficient.
18 The revision of the law on stock corporations was mainly intended to modernize the institute of the stock corporation (and to some extent also of the limited liability company and the cooperative) and to adapt it to economic needs. The dispatch contains no indication that the new regulations were enacted on the basis of public policy and morality. If the new law merely codifies a federal court practice, the latter is (still) directly applicable.
b. Protection of Certain Positions of Trust (Art. 3 and Art. 4 SchlT ZGB)
19 Art. 3 and Art. 4 SchlT ZGB protect certain positions of trust. Art. 3 SchlT ZGB applies if the legal relationship does not depend on the will of the parties. In contrast, the will of the parties is decisive for the application of Art. 4 SchlT ZGB.
20 If the content of a legal relationship is circumscribed by law, it does not depend on the will of the parties. The assessment is made on the basis of the new law in accordance with Art. 3 SchlT ZGB. The rule of non-retroactivity applies only to the acquisition or creation of legal relationships. However, the content of these rights is subject to future law, insofar as mandatory law is in question. Companies, among others, are covered by this rule. Unless otherwise provided, mandatory corporate law shall apply as of its entry into force. Thus, as of January 1, 2023, the relationship between the shareholder and the company is in principle governed by the new mandatory law, even if the shareholder position was established before January 1, 2023 (already above n. 13; see also Art. 1 para. 2 ÜBest). The special ÜBest remain reserved, including, for example, the provisions in Art. 2 and Art. 6 ÜBest regarding the continued validity of old-law articles of association, regulations or contracts for a period of two years (regarding articles of association and regulations below n. 25 ff. and regarding contracts below n. 97 ff.).
21 Art. 4 SchlT ZGB provides that rights which have not been acquired are not to be protected in the event of a change of law. If facts that occurred under the old law have not yet created subjective legal positions, their effects are assessed according to the new law. Conversely, this provision means that vested rights are protected from retroactivity.
B. Application to existing companies (Art. 1 para. 2 ÜBest)
22 Art. 1 para. 2 ÜBest states that the provisions of the new law shall become applicable to existing companies on 1 January 2023. Their articles of association and regulations often contain some provisions of the old law. In this respect, however, an exception applies on the basis of Art. 2 ÜBest (for more details see below n. 25 et seq.). Existing companies are those which have acquired legal personality by 31 December 2022 at the latest, i.e. have been entered in the Commercial Register (cf. Art. 643 para. 1, Art. 779 para. 1 and Art. 838 para. 1 CO).
23 What is mentioned in Art. 1 para. 2 ÜBest, according to which the new law applies to existing companies from 1 January 2023, already applies on the basis of the general transitional provisions. The organization of the company as well as the legal status of the parties involved in it is a permanent matter to which the rule of non-retroactivity does not apply (see above n. 13). Furthermore, Art. 3 SchlT ZGB stipulates that the content of the legal relationships, which is circumscribed by the law irrespective of the will of the parties involved, is to be assessed by the new law after the entry into force (cf. above n. 20). For legal entities, this results further specifically from Art. 6b para. 3 SchlT ZGB, which represents an application of the generally held Art. 3 SchlT ZGB.
IV. The Individual Transitional Provisions of the Stock Corporation Law Revision
24 This chapter deals with the explicitly regulated subject areas of the ÜBest.
A. Amendment of Articles of Association and Regulations (Art. 2 ÜBest)
1. Initial Situation and Review
25 Art. 2 ÜBest is a classic of corporate law revisions. As will be shown chronologically below, various intertemporal norms of previous revisions already knew similar provisions to Art. 2 ÜBest. It is noticeable that the more recent transitional provisions are located higher up in the systematics of the CO than the first two mentioned, which does not correspond to the chronological sequence of transitional provisions in the CO.
Final and Transitional Provisions on Titles XXIV-XXXIII
B. Adaptation of old companies to the new law I. In general
Art. 2
1 Joint-stock companies, limited partnerships and cooperatives which are registered in the Commercial Register at the time of the entry into force of this Act but which do not comply with the legal provisions shall adapt their articles of association to the new provisions within a period of five years.
2 During this period they shall be subject to the previous law insofar as their articles of association conflict with the new provisions.
3 If the companies do not comply with this provision, they shall be declared dissolved ex officio by the Registrar of Companies after the expiry of the period.
4 (...)
Final Provisions to Title XXVI
B. Adaptation to the new law I. In general
Art. 2
1 Joint-stock companies and limited partnerships which are registered in the Commercial Register at the time of the entry into force of this Act but which do not comply with the new legal provisions must adapt their articles of association to the new provisions within five years.
2 (...)
3 Other provisions of the Articles of Incorporation that are incompatible with the new law shall remain in force until they have been adapted, but for no longer than five years.
Transitional Provisions of the Amendment of December 16, 2005
B. Adaptation period
Art. 2
1 Limited liability companies that are registered in the Commercial Register at the time this Act enters into force but that do not comply with the new provisions must adapt their articles of association and regulations to the new provisions within two years.
2 Provisions of the articles of association and regulations that are incompatible with the new law shall remain in force until they have been adapted, but for no longer than two years.
3 (...)
4 (...)
Transitional provision of the amendment of December 12, 2014
B. Adaptation of Articles of Association and Regulations
Art. 2
1 Companies that are registered in the Commercial Register at the time the amendment of December 12, 2014 enters into force but do not comply with the new provisions must adapt their Articles of Association and regulations to the new provisions within two years.
2 Provisions of the Articles of Association and regulations that are not compatible with the new law shall remain in force until they have been adapted, but for no longer than two years.
26 While the first two revisions provided for transition periods of five years, a two-year transition period corresponds to current best practice in corporate law. The new accounting law and Art. 28 VegüV also provided for a two-year transition period. According to Forstmoser/Küchler, the five-year transition period of the revision of October 4, 1991, which came into force on July 1, 1992, proved to be unnecessarily long. It should also be borne in mind that there is an increasing cadence of legislative changes in stock corporation law, which would be complicated by excessively long transition periods. Moreover, longer transition periods are more quickly forgotten.
27 Irrespective of this, a transition period of even ten years was also discussed in the most recent revision of stock corporation law. This was envisaged by Romano in his unsuccessful proposal to adapt the French and Italian terms for stock corporations. In favor of preserving the financial center, he requested the deletion of the part indicating anonymization (from "société anonyme" to "société par actions" and from "società anonima" to "società per azioni"). The abbreviation would have remained "SA".
28 Due to the (functional) similarity of the present provision with Art. 2 ÜBest of the last revisions, the literature issued at that time can also be taken into account in the present case of Art. 2 ÜBest. The mechanism is the same; in part, the wording differs minimally: Thus, earlier transitional provisions still spoke of "incompatible" while more recent transitional provisions speak of "incompatible".
2. Scope of application of Art. 2 ÜBest
a. Personal scope of application
29 Art. 2 ÜBest applies to companies that were registered in the Commercial Register on January 1, 2023. These are the existing companies within the meaning of Art. 1 para. 2 ÜBest (see above n. 22). Already in other transitional provisions, Art. 1 para. 2 spoke of existing companies and Art. 2 para. 1 of companies registered in the Commercial Register at the time of entry into force. There are no indications that a differentiation from existing companies within the meaning of Art. 1 para. 2 ÜBest is intended.
30 It follows from Art. 2 ÜBest e contrario that for companies incorporated after January 1, 2023, only the new company law shall apply. The entry in the daily register of the commercial register is decisive, even if the public certification should have taken place beforehand. The same already follows from Art. 1 para. 1 ÜBest in conjunction with Art. 4 SchlT ZGB. Art. 4 SchlT ZGB. If no stock corporation existed at all before January 1, 2023, the old law cannot be applied (cf. above n. 21).
b. Material scope of application
31 It can already be inferred from the marginal note that Art. 2 ÜBest refers to articles of association and regulations. The statutes set out those norms which govern the company in addition to the statutory provisions. The articles of association are accessible as documents on the Internet free of charge (cf. Art. 936 para. 1 and para. 2 CO as well as Art. 22 para. 3 and Art. 43 para. 2 lit. b HRegV). Regulations include, among others, the widely used organizational regulations. In addition, other regulations such as compensation or registration regulations may also be affected by changes. As a rule, such regulations exist in the case of listed companies, whereas in the case of SMEs often only organizational regulations are issued, if such exist at all.
3. Transition period
a. Basic Mechanism
32 Art. 2 para. 1 ÜBest provides that companies that are registered in the Commercial Register on January 1, 2023, but do not comply with the new provisions, must adapt their articles of association and regulations to the new provisions within two years. This provision is formulated as a clear instruction or command. According to Art. 2 para. 2 ÜBest, articles of association and regulations that are not compatible with the new law shall remain in force until they are adapted, but no later than December 31, 2024. On January 1, 2025, the provisions that conflict with the new law shall automatically cease to apply. The provisions contradicting the new law are thus deemed not to have been written. This is a partial nullity analogous to Art. 20 para. 2 OR. This automatism leads to the fact that the companies are in principle not forced to amend their articles of association. The wording of Art. 2 para. 1 ÜBest therefore sounds too imperative. Accordingly, there is regularly no compelling need for the companies to amend their articles of association (for more details see below n. 48 et seq.). Nevertheless, in many cases it may be advisable to adapt the articles of association to the new law, either in order to make use of new possibilities under the revised law (e.g. virtual general meeting, nominal values smaller than one centime or capital band), or simply in order not to contradict the applicable law and not to create unnecessary legal uncertainties in the day-to-day handling of corporate law documents.
33 With regard to amendments to the articles of association and regulations, the legislator provides for a "one-way street". Only amendments to comply with the new law are permitted, and this already before the expiry of the two-year transition period. The reintroduction of a regulation permitted under the previous law is not permitted after January 1, 2023 - regardless of the transition period.
b. Reproduction in the Articles of Association of (mandatory) provisions under the old law
34 The articles of incorporation of numerous companies reproduce individual statutory provisions one-to-one. These are optional contents of the articles of association. For example, the powers of the general meeting of shareholders within the meaning of Art. 698 para. 2 aOR and of the board of directors within the meaning of Art. 716a para. 1 aOR are often reproduced in a catalog similar to the law. Thresholds for convening and setting the agenda at the General Meeting of Shareholders pursuant to Art. 699 para. 3 aOR are also regularly set out in the Articles of Association, as is a catalog of resolutions for which a qualified quorum within the meaning of Art. 704 para. 1 aOR is mandatory. This representation in the articles of association is particularly appreciated by international investors who are not familiar with Swiss law (see, however, n. 38 and n. 50 below regarding the example of Art. 699 para. 3 aOR, according to which reliance on the articles of association is not mandatory).
35 The non-transferable powers within the meaning of Art. 698 para. 2 and Art. 716a para. 1 CO are mandatory powers from which a company may not deviate by virtue of its articles of association. The requirements of the right to convene meetings and to set agendas can only be facilitated by the articles of association, but not made more difficult.
36 In this context, it is questionable whether the statutory illustrations of mandatory old statutory law that contradicts new mandatory statutory law - as provided for by the basic mechanism of Art. 2 para. 2 ÜBest - will remain in force for two years, i.e. until December 31, 2024, or whether they will be derogated from by new mandatory statutory law. In this or a similar context, various views are expressed. Since similar questions have already arisen in previous revisions of corporate law, the doctrine at that time can also be taken into account (cf. n. 25 above).
37 Some voices assume that the provisions of the Articles of Association reflecting the old regime will remain in force at the latest until December 31, 2024. Accordingly, the new thresholds and quorums would not apply until a reaction is made by means of an (early) amendment to the Articles of Association. According to the dispatch, the direct applicability of the revised standards is subject to transitional law, whose Art. 2 para. 2 ÜBest can be regarded as lex specialis. E contrario, it can thus be argued that during the two-year transitional period, the provisions of the Articles of Association remain in force and thus applicable. This position is based on the legal wording of Art. 2 para. 2 ÜBest. From a practical point of view, the argument is that shareholders may rely on the relevant provisions of the Articles of Association. For example, the articles of association are examined before a share purchase as part of legal due diligence.
38 However, any such confidence can also be shaken, as the following example shows: The Federal Supreme Court held, in line with the prevailing doctrine, that shareholders with an interest of at least 10% of the share capital also have a right to request the inclusion of items on the agenda. Furthermore, part of the doctrine states that shareholders with shares with a nominal value of CHF 1 million also have the right to convene a meeting. The thresholds would therefore - contrary to the overly restrictive wording of Art. 699 para. 3 aOR - apply alternatively in both directions.
39 In the revision of company law of October 4, 1991, which came into force on July 1, 1992, Art. 6 of the associated transitional provisions stipulated that a company which, by merely reproducing provisions of the previous law, had adopted provisions on qualified majorities for certain resolutions in its articles of association may, within one year of the entry into force, resolve to adapt to the new law by an absolute majority of all share votes represented at a general meeting. This provision also applied to the attendance quorums enshrined in the law at the time. Without this provision, corresponding provisions of the Articles of Incorporation would continue to apply unchanged as statutory law even after the revision of stock corporation law at that time. In the case of larger companies, it would have been difficult to adapt to the new law, because otherwise the quorum to be eliminated would have had to be observed. These were quorum provisions that were accessible to statutory regulations (cf. Art. 627 no. 11 aOR; see on statutory accessibility below n. 41).
40 In earlier revisions, Jäggi and Rapp took the view that provisions of the Articles of Association that merely reproduce the previous text of the law automatically lapse if it can be shown that, at the time they were enacted, the intention was to reproduce the respective text of the law. Jäggi thereby required that the founders had addressed these circumstances. According to him, the mere adoption of the wording of the law was not sufficient. According to Jäggi, if new shareholders joined, the old law applied on the basis of the principle of trust. Capitaine assumed that, in the absence of proof of a contrary intention, a provision in the articles of incorporation which merely reproduced the wording of the old law was irrelevant. All these views seem to be hardly practicable.
41 Böckli, Forstmoser, Stauffer and Vischer commented on earlier revisions to the effect that the mandatory provisions of the new stock corporation law took precedence if the articles of incorporation merely reproduced the mandatory provisions of the old law. Accordingly, the Articles of Incorporation should not take precedence in matters which they do not have to regulate at all. According to this view, the new law applied immediately if the reason for its application lay not in the articles of incorporation but in the law (e.g. Art. 698 para. 2 and Art. 716a para. 1 CO [see above n. 35]). Hürlimann criticized Stauffer's view of the revision of December 18, 1936, which came into force on July 1, 1937. On the one hand, he considered it difficult to determine those areas whose ground of validity lies in the law. This can be countered by the fact that (at least nowadays) it is usually clear whether a corporate law norm is mandatory or dispositive. On the other hand, Hürlimann criticized the lack of a legal basis for this differentiation. It can be countered that the legal basis results from the teleological interpretation of the transitional provision.
42 The central question is therefore whether the grammatical element dominates in the interpretation of Art. 2 para. 2 ÜBest and one concludes that the two-year period also applies to the statutory reproduction of mandatory statutory law or whether teleological arguments prevail and one assumes that mandatory statutory law is applicable immediately, i.e. as of January 1, 2023.
43 The following arguments suggest that the second view can probably be justified more soundly. It has already been shown in the first view that shareholders cannot fully rely on the relevant provisions of the Articles of Association or their wording, inter alia because of case law (see above n. 38). Moreover, the Articles of Association cannot be used to create an order which the legislator reserves for itself. Furthermore, this view is consistent with the basic idea of Art. 3 SchlT ZGB, which is to be used for interpretation (see the declaratory reference in Art. 1 para. 1 ÜBest [see above n. 7]). Art. 3 SchlT ZGB provides that the mandatory provisions of the new law concerning the content of a legal relationship are applicable immediately upon entry into force. This also applies, inter alia, to companies (see also Art. 6b para. 3 SchlT ZGB and above n. 20 and n. 23).
44 The Federal Supreme Court ruled with regard to the special audit, which was introduced in the revision of 4 October 1991 and entered into force on 1 July 1992, that it applies to the investigation of facts prior to its entry into force. Since this is a legally guaranteed right to information, it is not subject to restrictions or deviating regulations by the Articles of Association. For this reason, the Federal Court did not accept the objection that the transitional provision concerning the provisions of the Articles of Association applied. However, the legal assessment of the facts is subject to the old law due to the principle of non-retroactivity. This decision of the Federal Supreme Court also speaks in favor of the second view.
45 According to Forstmoser, the five-year transitional provision of the revision of October 4, 1991, which came into force on July 1, 1992, applied to the absolute and conditional content of the articles of incorporation. Such content under the old law is derived from Art. 626 f. aOR. Art. 626 aOR exhaustively listed the minimum content of the articles of association. The list in Art. 627 aOR was not exhaustive. The topics of the required content of the articles of association not covered by Art. 627 aOR are also covered by the two-year transition period. Art. 627 aOR was repealed because it was incomplete and its completion appeared too cumbersome. However, as under the old law, the conditionally necessary content of the articles of association results from the relevant provisions of the law.
46 If the articles of association refer to the law, it can be assumed that the mere reference of a provision of the articles of association to the law is deemed to be a reference to the respectively applicable legal system (so-called dynamic reference). In this respect, there is a priori no reliance on the existence of a specific legal system under company law. In this respect, it is recommended for reasons of transparency to refer directly to company law in the articles of association in future instead of copying it (at least in terms of content) one-to-one.
47 Furthermore, it can be argued that the anchoring of Art. 698, Art. 704 and Art. 716a aOR in the articles of association is not conclusive and can be supplemented by new law at any time.
4. Articles of association
a. Need for amendments
48 As already mentioned above, the revision of the company law is not intended to trigger any compulsion to amend the articles of association (cf. n. 32 above). This is a relief especially for SMEs or group companies, because an amendment of the articles of association requires not only a resolution of the general meeting but also a public certification (cf. Art. 647 and Art. 698 para. 2 no. 1 CO). For reasons of legal certainty and clarity, however, an amendment is generally recommended. In doing so, one can be guided by the various templates of the cantonal commercial registry offices. There are, however, the following exceptions to the principle of unconstrained amendment of the articles of association:
49 Art. 626 para. 2 no. 1 nOR requires that the articles of association of listed companies contain provisions on the number of activities that members of the board of directors, the executive board and the advisory board may perform in comparable functions at other companies with an economic purpose (so-called "third-party mandates"). Mandates in the management of other companies are now also covered (cf. still Art. 12 para. 1 no. 1 VegüV: "in the highest management or administrative bodies"). For this purpose, there is a restriction to mandates with an "economic purpose" (Art. 626 para. 2 no. 1 nOR). In our opinion, the provisions of Art. 626 para. 2 no. 1 CO must be adapted within the two-year transition period pursuant to Art. 2 ÜBest, i.e. by January 1, 2025. Furthermore, a member of the board of directors who prevents the articles of incorporation from containing appropriate provisions within the meaning of Art. 626 para. 2 no. 1 CO is liable to prosecution (Art. 154 para. 2 lit. c nStGB). Direct intent is required; contingent intent is not sufficient (see Art. 154 para. 3 CC). Since direct intent is rarely fulfilled here, it remains to be seen whether this element of the offense is not a dead letter.
50 Pursuant to Art. 10 and Art. 26 LR SIX and No. 4.1 and No. 19.1 LR BX, a listing on the SIX Swiss Exchange or the BX Swiss, as the case may be, as well as its maintenance, requires that, among other things, the articles of association of the listed companies comply with the national law to which the issuer is subject. The listing law of the stock exchanges in Switzerland aims, among other things, at transparency with regard to the quality of the issuer (Art. 1 LR SIX and no. 1.1 LR BX). For this reason, in our opinion, listed companies should be required to ensure that their articles of association do not contain any invalid provisions. The same should apply to companies supervised by other authorities, e.g. FINMA. This protects, among others, foreign investors who are not very familiar with Swiss stock corporation law. The spirit of the stock corporation law revision - according to which the companies are not forced to make any changes to the articles of association (cf. n. 32 above) - does not change this view either, because the listing law pursues its own purposes. A correction of the articles of association is therefore necessary. The above-mentioned case law and doctrine on Art. 699 para. 3 aOR was not reflected in the Articles of Association by various listed companies (cf. above n. 38). This is probably an indication that the stock exchanges will not check with all consistency whether the articles of association comply with the new law. In our opinion, it is to be expected that most listed companies will amend their Articles of Association at the Annual General Meeting in 2023 or 2024. For some companies, it is important to have articles of association that comply with the new law already in 2023. Other companies are waiting to see what other companies do first.
51 Furthermore, both unlisted and listed companies will have to amend their articles of incorporation if they wish to make use of one of the options offered by the new law and if this requires a basis in the articles of incorporation. The two-year transitional period does not apply here, because the new law will in principle apply from January 1, 2023 and these are new possibilities - without a basis in the previous law (cf. also Art. 1 para. 2 ÜBest).
52 The possibilities of the new law include:
Reduction of the minimum par value below one centime (Art. 622 para. 4 nOR);
Share capital in a foreign currency (Art. 621 para. 2 and Art. 626 para. 1 no. 3 CO);
Introduction of a capital band (Art. 653s para. 1 nOR);
Introduction of an arbitration clause in the Articles of Association (Art. 697n nOR);
Foreign venue for a general meeting (Art. 701b para. 1 nOR);
Virtual general meeting (if necessary without independent proxy; Art. 701d nOR).
53 The new law may also require immediate intervention. Pursuant to Art. 716b para. 1 nOR, the board of directors may - unless the articles of association provide otherwise - delegate the management of the company in whole or in part to individual members or third parties in accordance with organizational regulations (Art. 716b para. 1 nOR). In contrast, a statutory basis was previously required for the transfer of management (Art. 716b para. 1 aOR). The dispositive law was thus reversed. If a transfer of management is not desired as of January 1, 2023, a corresponding prohibitive provision in the articles of association must be proactively enacted.
54 The old Stock Corporation Act permitted representation at the General Meeting exclusively by other shareholders only if there was a corresponding provision in the Articles of Association (cf. Art. 627 para. 10 and Art. 689 para. 2 aOR). In the case of such a provision in the Articles of Association of a non-listed company, it is now required that the Board of Directors designates an independent proxy or a proxy for corporate bodies upon request of a shareholder (Art. 689d para. 2 nOR). The details are regulated in the Articles of Incorporation (Art. 689d para. 3 nOR in fine). Accordingly, the new law requires a corresponding amendment of the Articles of Association. Since this does not involve the replacement of old mandatory law by new mandatory law, but rather a new regulation which the old law did not provide for, the two-year transitional period within the meaning of Art. 2 para. 2 ÜBest applies in this respect (see above n. 32 ff.).
55 As of January 1, 2023, certain remunerations without a statutory basis will be inadmissible because the catalog of inadmissible remunerations of Art. 735c nOR now also covers certain remunerations to former members of the Board of Directors or the Executive Board as well as persons closely related to them (cf. on remuneration law also N. 127 et seq.). In this respect, an amendment to the Articles of Association may be necessary.
56 An authorized capital increase within the meaning of Art. 651 et seq. aOR is only possible after January 1, 2023 if the corresponding resolution to amend the Articles of Association was passed before January 1, 2023 (cf. Art. 3 ÜBest; see below n. 81).
57 For arbitration clauses contained in the Articles of Association prior to January 1, 2023, cf. n. 194 below.
b. Expiry of amendments to the Articles of Association
58 If the company or its board of directors identifies a need for amendments, the articles of association will be amended by resolution of the general meeting (cf. Art. 698 para. 2 lit. a CO). In doing so, the Board of Directors will prepare the draft and convene the corresponding General Meeting (cf. Art. 699 para. 1 and Art. 716a para. 1 no. 6 CO). The resolution of the general meeting must be publicly certified and the new date of the articles of association must be entered in the commercial register (cf. Art. 647 CO and Art. 22 para. 1 lit. b HRegV; on the articles of association as supporting documents above n. 31). In this respect, the general meeting, if it takes place after January 1, 2023, is subject to the new law as a new fact (Art. 1 para. 3 SchlT ZGB; cf. above n. 15). Mandatory legal provisions on the general meeting cannot be disregarded on the basis of provisions of the articles of association which contain the old mandatory law (cf. above n. 34 ff.). A convocation before January 1, 2023 for a general meeting after January 1, 2023 is, in our opinion, governed by Art. 700 aOR. Convocations of listed companies are therefore not required to contain a brief explanation of the motions of the Board of Directors (cf. Art. 700 para. 2 no. 3 nOR).
59 The EHRA published a practice note regarding amendments to the articles of association in view of the entry into force of the revision of the company law. This deals with the question of the extent to which amendments to the articles of association could be adopted and entered in the commercial register before January 1, 2023 in view of the new law. A distinction is made between scheduled and conditional amendments to the articles of association. Insofar as facts not subject to publication are concerned, these could be resolved on a scheduled basis. Such provisions of the Articles of Association could be filed with the Commercial Register Office for entry in the Commercial Register since the adoption of the definitive text of the nHRegV, i.e. since February 2, 2022. In the case of a stock corporation, the facts subject to publication are derived from Art. 45 nHRegV. The scheduled amendments to the Articles of Incorporation include, among others, a provision regarding the virtual General Meeting (cf. Art. 701d nOR) as well as, for unlisted companies, certain provisions regarding compensation law in Art. 732 et seq. nOR (cf. Art. 732 para. 2 nOR). The articles of incorporation must clearly indicate which provision applies and when. In contrast, amendments to the Articles of Association requiring publication could not be filed with the Commercial Register Office before January 1, 2023. Before January 1, 2023, however, a conditional resolution to amend the Articles of Association was possible subject to the condition precedent that the revision of the Stock Corporation Act enters into force. The date of the resolution and not the date on which the new law enters into force, i.e. January 1, 2023, or the date of the filing with the Commercial Register is deemed to be the date of the amendment of the Articles of Association (cf. Art. 22 para. 1 lit. b HRegV). The following amendments to the Articles of Association are included:
Reduction of the nominal value below one centime, whereby the nominal value must be greater than zero (Art. 622 para. 4 nOR and Art. 45 para. 1 lit. h nHRegV);
Capital in foreign currency (Art. 621 para. 2 and para. 3, Art. 629 para. 3 and Art. 632 para. 2 nOR and Art. 45 para. 1 lit. h nHRegV);
Introduction of a listed participation capital in accordance with the revised provisions (Art. 656b para. 1 nOR and Art. 45 para. 1 lit. j nHRegV);
Capital band (Art. 653s et seq. nOR and Art. 59a para. 2 nHRegV);
Arbitration clause (Art. 697n nOR and Art. 45 para. 1 lit. u nHRegV).
60 For the adjustment of the par value, reference can be made to the amendment of the law of May 1, 2001, according to which the par value of a share must be greater than one centime (Art. 622 para. 4 aOR). In this respect, it was also possible to pass a conditional resolution to amend the Articles of Association with regard to the reduction of the par value prior to May 1, 2001. According to the EHRA, an unconditional resolution was void because it would have been contrary to the law applicable at the time. The occurrence of the condition, i.e. the entry into force of the amendment, is deemed to be generally known due to the publication in the Official Gazette and therefore does not have to be established by public certification. The considerations of the EHRA at that time regarding nullity as well as public certification can tel quel be transferred to the Practice Note EHRA 1/22.
61 In connection with the convening of the general meeting of shareholders, the board of directors must ensure that the items on the agenda preserve the unity of the matter (Art. 700 para. 3 nOR). This principle, which is also known in constitutional law, already applied in the old corporation law. The principle of unity of matter must be observed in particular in the case of amendments to the articles of association. According to Müller, it is violated if elements of different core resolutions are linked. This prevents shareholders from approving a proposal even though they only partially agree with it. Shareholders should be able to form and communicate their will freely and without distortion. It is therefore a prerequisite that the individual components of an agenda item are closely related. The unity of the matter also applies to the motions. Accordingly, it is not permissible to force the shareholders to agree to one part of the proposal against their will only so that they can accept the second part of the proposal.
62 A distinction is made between partial and total revision of the articles of association. In the case of a total revision, the commercial registry offices require that all provisions comply with the new law. In contrast, in the case of a partial revision, only the amended or newly added provisions of the articles of association are examined. In a partial revision of the Articles of Incorporation, subject blocks can be formed for discussion and voting, which may also depend on each other in terms of content. Each of these blocks of topics must be discussed and voted on separately, in accordance with the principle of unity of the subject matter. The Board of Directors has a certain degree of discretion in the composition of the subject blocks. The requirement of unity of matter should not be interpreted too narrowly. The legislator does not intend any improper fragmentation of the agenda items.
63 The following subject blocks are conceivable:
Provisions on compensation law (cf. Art. 626 para. 2 nOR);
Provisions on a capital band (cf. Art. 653s et seq. nOR);
Provisions on the General Meeting of Shareholders;
Provisions on the Board of Directors;
Provisions on the auditors.
64 Basic resolutions such as the restriction of voting rights or the transferability of registered shares (restriction of transferability; Art. 685a et seq. CO) should be passed separately in each case. An amendment or correction of provisions of the Articles of Association which merely reflect mandatory law can be structured as a single block of issues, since the shareholders cannot dispose of these issues in deviation from the law via the Articles of Association anyway (cf. above n. 41 et seq.). Thus, there is no need to vote separately on each individual adjustment. It is merely up to them to decide whether or not the Articles of Association reflect the "incorrect" mandatory statutory law (see above n. 34 ff.). Since the revision of the company law is not intended to lead to any mandatory amendments to the articles of incorporation (cf. n. 32 above), in our opinion the commercial registry offices may not additionally demand that a formal clean-up be carried out in general in the case of individual amendments to the articles of incorporation.
65 The principle of unity of matter does not, however, require that in the case of a total revision of the articles of association each provision must be voted on individually. With the principle of the unity of the matter, the legislator does not intend to introduce a "bazaar on each individual provision of the articles of association". Of course, a shareholder is free to reject the proposal as a whole. In addition, shareholders may submit corresponding motions on each provision (Art. 700 para. 4 aOR or Art. 699b para. 5 nOR). In the case of controversial issues, it may make sense to vote on them separately and then subject the result to an overall vote.
66 The principle of unity of matter may not be circumvented by carrying out a partial revision under the title of a total revision. In this context, we can speak of formal and substantive total revision. A formal total revision exists if the old version of the Articles of Association is fully replaced by a new version. In the case of a considerable number of provisions of the Articles of Incorporation that have been materially amended, there is also a material total revision. According to Müller, the limit of materiality is between five and ten individual votes, with the limit increasing depending on the scope of the Articles of Association. Hubacher/Sieber/Vogel/Baumberger also state ten amendments as a "rule of thumb".
67 Whether a resolution is to be passed on a topic in a single vote or whether several topics are to be combined into a block depends on various considerations. On the one hand, the topics should be combined in such a way that the will of the General Assembly can be expressed as undistortedly as possible. This means that a possibly controversial issue should not be voted on together with uncontroversial issues. Otherwise, there is a risk that the entire block of topics will be rejected. On the other hand, the required quorum for resolutions must be observed. A single vote is recommended if a qualified quorum is required for a resolution. Otherwise, the qualified quorum applies to the entire subject block, although only part of the subject block would be subject to it.
68 If the unity of the matter is violated, the corresponding resolution of the general meeting may be challenged (Art. 706 f. CO). According to Müller, in order to enforce the principle of the unity of the subject matter, a shareholder must work towards compliance with it at the general meeting of shareholders by requesting a separate vote. In our opinion, in the absence of a legal basis, there is no reason for an exception to the principle according to which there is no obligation to give notice of defects in the case of formal defects in stock corporation law - subject to abusive conduct.
69 The Commercial Register Office is only required to register contestable resolutions, also subject to other defects. Accordingly, resolutions concerning provisions of the articles of association that violate the unity of the matter must be entered in the commercial register. Preventive measures leading to a blocking of the register are reserved (cf. Art. 261 et seq. CPC).
5. Regulations
a. Need for adaptation
70 The same mechanism applies to regulations as to the articles of association. According to Art. 2 para. 2 ÜBest, provisions that conflict with the new law on 1 January 2025 automatically cease to apply (cf. n. 32). Although, in contrast to the Articles of Association, Parliament did not explicitly comment on this, it can be assumed that amendments to the Articles of Association are also not mandatory.
71 It was explained in n. 50 that listed companies must amend their articles of association on the basis of the listing regulations. Analogous provisions, according to which regulations must comply with Swiss law, are not found (cf. Art. 10 and Art. 26 LR SIX as well as No. 4.1 and No. 19.1 LR BX). However, many listed companies voluntarily publish the Organizational Regulations online as a minimum, which is why an adaptation is recommended in these cases as well.
72 First and foremost, the frequently existing organizational regulations must be examined for the need for adaptation. In these, the board of directors essentially regulates the delegation of management from the board of directors to an executive board (Art. 716b para. 1 nOR). Furthermore, the meetings and resolutions of the board of directors are also regularly regulated there. The working methods and competences of any existing committees of the board of directors are also frequently defined there, although separate regulations (committee charters) are also frequently found.
73 If necessary, it may be necessary to amend the regulations. This is primarily the case if the regulations refer to adapted provisions of the articles of association or the law. However, independent amendments may also be appropriate, as the following examples show.
74 Pursuant to Art. 701e para. 1 nOR, the board of directors regulates the use of electronic means in the general meeting. This is particularly relevant when holding a virtual, hybrid or multilocal general meeting. It is recommended to regulate this in the organizational regulations or in a separate set of regulations or instructions. It is also recommended that provisions on electronic decision-making by the board of directors be included in the organizational regulations.
75 It is also conceivable that the board of directors may feel compelled to deviate from these provisions in the organizational regulations due to a dispositive legal provision that is unsuitable for it. According to Art. 713 para. 2 no. 3 of the Swiss Code of Obligations, no signature is required for electronic circular resolutions unless the board of directors has stipulated otherwise in writing. In order to deviate from this, the board of directors must - if it does not already exist - include a corresponding passage, for example in the organizational regulations.
76 With regard to conflicts of interest, Art. 717a nOR enters into force as a rudimentary regulation with the revision of company law. According to Art. 717a para. 2 nOR, the board of directors must take measures to safeguard the interests of the company in the event of conflicts of interest. Corresponding regulations can be provided for in the organizational regulations if they do not already exist. However, this is not mandatory. Measures in individual cases are sufficient, precisely because Art. 716b para. 2 no. 4 E-OR, according to which the organizational regulations regulate the handling of conflicts of interest, was not adopted by Parliament.
77 If available, amendments to the registration regulations may also be advisable. According to Art. 685d para. 2 nOR, the company of listed registered shares may reject acquirers if they do not declare upon request that they have acquired the shares in their own name and for their own account, that there is no agreement on the redemption or return of corresponding shares and that they bear the economic risk associated with the shares. This is an optional provision. A corresponding provision is therefore not required. Nevertheless, as a defensive measure, it may be advisable to reflect this innovation in the registration regulations, if necessary also in the articles of association.
78 Pursuant to Art. 686 para. 2bis of the Swiss Code of Obligations, listed companies must ensure that the owners or usufructuaries can submit the application for entry in the share register electronically. The registration regulations must therefore be examined in this respect.
b. Procedure for amending the regulations
79 If a need for amendment is identified, the relevant regulations must be amended. The board of directors is responsible for this, since the determination of the company's organization is a non-transferable and irrevocable responsibility of the board of directors (cf. Art. 716a para. 1 no. 2 CO). Accordingly, the General Meeting of Shareholders cannot and may not decide on any adjustment in this respect.
B. Authorized Capital Increase and Capital Increase from Conditional Capital (Art. 3 ÜBest)
80 Art. 3 ÜBest regulates the transitional legal treatment of the authorized capital increase (below n. 81 ff.) and the capital increase from conditional capital (below n. 86 f.).
1. Authorized Capital Increase
81 The capital band pursuant to Art. 653s et seq. nOR replaces the old-law authorized capital increase pursuant to Art. 651 et seq. aOR. For an authorized capital increase resolved before January 1, 2023, the previous law applies (Art. 3 ÜBest). In this context, Art. 3 ÜBest is based on the date of the resolution ("were resolved"). Accordingly, registration of a resolved authorized capital in January 2023 is also conceivable. The authorization resolution must be registered with the Commercial Register Office as soon as possible. An authorized capital increase is possible for a period of up to two years (Art. 651 para. 1 aOR). This period only starts to run from the date of entry in the Commercial Register. In practice, however, a relevant end date has regularly been included in the articles of association.
82 Extensions and amendments of the authorized capital increase after January 1, 2023 are no longer possible (cf. Art. 3 ÜBest in fine; see also no. 2.1 Annex DCG). Corresponding remnants of the authorized capital increase are to be deleted from the Articles of Association by the Board of Directors (cf. Art. 651a para. 2 aOR).
83 For reasons of practicability, it should, in our opinion, be permissible in the event of a total revision of the Articles of Association after January 1, 2023, to postpone the provision regarding authorized capital or to include it again in the Articles of Association. In doing so, the article number may change or the provision may be included again in the same article. However, the provision may not be changed either formally or materially (cf. above n. 82). To be on the safe side, the corresponding procedure should first be discussed with the competent commercial registry office. If this procedure were not permissible, a comprehensive partial revision of the articles of association would have to be adopted and notified to the Commercial Register Office, which would involve a significantly higher administrative effort.
84 If a capital band is adopted, then the continuation of an already adopted authorized capital according to Forstmoser/Küchler takes place under the regime of the capital band. In contrast, the EHRA, in line with Büchler, von der Crone/Dazio and Gericke/Lambert, demands that the provision in the articles of association concerning authorized capital be formally repealed. A coexistence of the two instruments is not foreseen, especially since the capital band replaces the authorized capital increase (see above n. 82). In our opinion, a formal repeal is certainly advisable already for editorial reasons.
85 At SIX Swiss Exchange, the new Art. 14 RLAE applies mutatis mutandis to authorized capital increases (Art. 26 para. 2 RLAE). The regulation remains the same. An additional global certificate for the amount by which the capital has been increased must be issued and submitted to the collective depository with which the previous global certificate was deposited. A similar regulation for authorized capital increase is provided for in Art. 16a para. 2 RLRMP and Art. 24 para. 2 RLVB.
2. Conditional Capital Increase
86 The content of the conditional capital increase remains largely unchanged. However, the scope of application of the conditional capital in Art. 653 para. 1 nOR has been extended due to the needs of practice. The board of directors may now delete the provisions on conditional capital from the articles of association if no such capital has been issued (Art. 653i para. 1 no. 2 nOR). Since hardly anything has changed, Art. 3 ÜBest concerning conditional capital is of little significance. In any case, conditional capital existing after January 1, 2023 may only be changed and also cancelled under the conditions of the new law. A resolution of the General Meeting of Shareholders before January 1, 2023 with conditional capital under the new law is also possible, provided that the effectiveness of the provision in the Articles of Association is scheduled for January 1, 2023 (see also above n. 59).
87 For the regulations of the SIX Swiss Exchange, see the relevant standards above in n. 85.
C. Gender Representation (Art. 4 ÜBest)
88 734f nOR concerning gender representation on the Board of Directors and Executive Board has already entered into force on 1 January 2021 together with Art. 4 ÜBest. Art. 734f nOR requires listed companies that exceed the thresholds within the meaning of Art. 727 para. 1 no. 2 CO and do not meet the gender benchmarks to state in the remuneration report why each gender is not represented by at least 30% on the board of directors and at least 20% on the executive board and to publish measures to promote the less strongly represented gender (comply or explain approach).
89 Art. 4 ÜBest contains long transition periods:
Regarding gender representation on the board of directors, a five-year transition period is provided for. Accordingly, the reporting obligation applies for the first time to the financial year beginning on or after January 1, 2026. The corresponding publications will therefore be made from the first half of 2027.
With regard to gender representation on the Executive Board, a ten-year transition period is even provided for. Accordingly, the reporting obligation will apply for the first time to the financial year beginning on or after January 1, 2031. The corresponding publications will therefore be made from the first semester of 2032.
However, it can be observed that individual companies are already complying with this reporting requirement earlier, either voluntarily or as a result of pressure from the capital market (in particular proxy advisors).
90 The transition periods allow the gender benchmarks to be achieved via natural attrition and avoid hasty new appointments. The transition period for the executive board is twice as long because recruitment is more difficult and the requirements for industry knowledge are often higher than for the board of directors.
91 Art. 734f nOR assumes two, i.e. male and female, genders. Two postulates submitted to the National Council called for the introduction of a third gender, but this was rejected by the Federal Council. If the legal situation changes in the future, there may be a need to adapt Art. 734f nOR and, if necessary, also Art. 4 ÜBest before the expiry of the transitional periods pursuant to Art. 4 ÜBest.
92 In the DCG, which has been adapted due to the revision of the Stock Corporation Act, the SIX Swiss Exchange declares the gender guidelines and the disclosure requirements in the compensation report (comply or explain approach) to be applicable also for foreign issuers (no. 3.8 and no. 4.5 Annex DCG). The DCG also takes into account the longer transitional provisions of Art. 4 ÜBest and thus creates equal conditions for Swiss and foreign issuers (level playing field). Pursuant to Art. 11 para. 7 DCG, Section 3.8 Annex DCG concerning the Board of Directors applies for the first time to the reporting period beginning on or after January 1, 2026. Section 4.5 Annex DCG concerning the Executive Committee applies for the first time to the reporting period beginning on or after January 1, 2031 (Art. 11 para. 7 DCG; cf. above n. 89 concerning the same deadlines for domestic issuers).
D. Deferral of Bankruptcy (Art. 5 ÜBest)
93 Pursuant to Art. 725a para. 1 aOR, the court could, at the request of the board of directors or a creditor, postpone the opening of bankruptcy proceedings if there was a prospect of reorganization. In this case, the court took measures to preserve the assets. Furthermore, the court could appoint a custodian and deprive the board of directors of its power of disposal or make its decisions dependent on the consent of the custodian (Art. 725a para. 2 aOR). The stay of bankruptcy proceedings only had to be published if this was necessary to protect third parties (Art. 725a para. 3 aOR).
94 The revision of stock corporation law allowed the postponement of bankruptcy to be included in the composition proceedings. The advantages of the bankruptcy moratorium were integrated into the composition proceedings pursuant to Art. 293 et seq. SchKG. The previous law applies to a bankruptcy moratorium granted before January 1, 2023 until its conclusion (so-called "grandfathering"; Art. 5 ÜBest). It is also possible to extend the bankruptcy moratorium or to transfer the pending proceedings to debt-restructuring moratorium proceedings, provided that the conditions for such proceedings are met. The same applies to debt-restructuring moratoria (ÜBest SchKG on the amendment of June 19, 2020).
95 An amendment to Art. 293a para. 2 SchKG concerning provisional debt-restructuring moratorium was also adopted with the revision of company law. In justified cases, the provisional moratorium may be extended by a maximum of four months at the request of the administrator or, if none has been appointed, of the debtor. Due to the Covid 19 pandemic, the provision was already put into effect on October 20, 2020. Experience has shown that the four months of the old law were not always sufficient for a successful reorganization. Provisional forbearances approved prior to October 20, 2020, also benefited from the new extension option.
96 For further reorganization law issues, see below n. 155 et seq.
E. Adjustment of old-law contracts (Art. 6 ÜBest)
97 Art. 6 ÜBest is similar to Art. 28 VegüV, but covers all contracts (see above n. 4). In contrast, Art. 28 VegüV only covers employment contracts and thus, inter alia, not mandate and consultancy contracts. In particular, contracts with members of the board of directors often do not constitute an employment contract. In the case of mandates, however, no problem should have arisen because these can be terminated at any time (cf. Art. 404 CO).
98 Art. 6 ÜBest is likely to be relevant in particular with regard to the duration of contracts (or notice periods) with members of the board of directors or the executive board concerning their remuneration pursuant to Art. 735b nOR, because Art. 12 para. 1 no. 2 VegüV, which has been transferred into law, has been kept somewhat more detailed and slightly adapted. For members of the Board of Directors, a maximum contract period of one term of office now applies and not one year as in Art. 12 para. 1 no. 2 VegüV (Art. 735b para. 1 nOR). However, the period between two general meetings was already subsumed under this norm. In this respect, a clarification in the Articles of Association was recommended. After expiry of the two-year period provided for in Art. 6 ÜBest, the statutory provisions apply directly to unlawful clauses.
99 Although Art. 6 ÜBest was created for compensation law, it can be applied to other contracts. An example of this is the subordination agreement (see Art. 725b para. 4 no. 1 nOR). During a transitional period of two years, it is permissible for the subordination agreement not to provide for subordination with regard to interest. However, as of January 1, 2025, the agreement must also subordinate the interest accruing as of that date during the over-indebtedness. Without Art. 6 ÜBest as lex specialis, the subordination would have had to comply with the requirements of Art. 725b para. 4 no. 1 nOR as of January 1, 2023 (cf. Art. 1 para. 2 ÜBest). For their own risk considerations, auditors may require an adjustment of the subordination already before January 1, 2025. For this reason, part of the doctrine recommends an immediate adjustment.
100 In the case of over-indebtedness, it is a matter of permanent fact which will be assessed in principle in accordance with the new law as of January 1, 2023 (cf. above n. 13 and below n. 162). If no adjustment is made, the subordination is no longer sufficient to avoid notification of the court pursuant to Art. 725b para. 4 no. 1 nOR.
F. Transparency in Commodity Companies (Art. 7 ÜBest)
101 The regulations on transparency in commodity companies were originally located in Art. 964a to Art. 964f nOR and already entered into force on January 1, 2021. With the entry into force of the indirect counter-proposal to the corporate responsibility initiative on January 1, 2022, the corresponding regulations in Art. 964d to Art. 964i nOR were shifted (cf. below n. 102 et seq.). Pursuant to Art. 7 ÜBest, these regulations will apply for the first time to the financial year beginning on or after January 1, 2022. The first reports on payments to government entities are therefore expected in the first semester of 2023 (cf. Art. 964g para. 1 nOR). Accordingly, the companies concerned already had to have provided the necessary information for the 2022 financial year.
G. Transitional provision on transparency on non-financial matters and due diligence and transparency regarding minerals and metals from conflict areas and child labor (indirect counter-proposal to the Corporate Responsibility Initiative)
102 The counter-proposal to the Corporate Responsibility Initiative introduces reporting on non-financial matters and due diligence and reporting obligations regarding minerals and metals from conflict areas and child labor (Art. 964a et seq. nOR). The due diligence and reporting obligations regarding minerals and metals from conflict and high-risk areas and child labor (Art. 964j-964l CO) are specified in the Ordinance on Due diligence and Transparency regarding Minerals and Metals from Conflict Areas and Child Labor (VSoTr). These provisions entered into force on January 1, 2022. Reporting on non-financial matters sometimes refers to environmental matters (Art. 964b para. 1 nOR). One aspect of environmental matters is climate matters, which are specified in the Ordinance on Reporting on Climate Matters. This ordinance will enter into force on January 1, 2024.
103 Transitionally, it is envisaged that these new transparency regulations will apply to the fiscal year starting one year after entry into force, i.e. fiscal year 2023 (reporting period). The first reports are therefore expected in the first half of 2024. There is no explicit deadline for publication of the report on non-financial matters - in contrast to the report on payments to government bodies and the reports on minerals and metals from conflict areas and child labor. These reports must be published electronically within six months of the end of the financial year (Art. 964g para. 1 and Art. 964l para. 3 no. 1 nOR). In contrast, the report on non-financial matters must be approved by the General Meeting of Shareholders (Art. 964c para. 1 nOR). The report must then be published immediately by the Board of Directors (Art. 964c para. 2 no. 1 nOR). Since the General Meeting of Shareholders should take place no later than six months after the end of the financial year (Art. 699 para. 2 CO), the period should be only slightly longer than six months. If approval is refused, the deadline may not be met.
104 However, it must already be ensured in the 2023 financial year that the information required for reporting is available. Since the regulation on reporting on climate issues comes into force on January 1, 2024 - i.e., after the first reporting period has already been completed - we believe that this regulation only needs to be observed for fiscal year 2024 (reporting period) and thus only applies to the report on climate issues to be published in the first semester of 2025. Since the report on non-financial matters - including the report on climate issues - on the 2023 financial year will already be published in the first half of 2024, it could be argued that the regulation on reporting on climate issues must already be complied with at this time. However, anyone who follows this understanding must bear in mind that the necessary data for climate reporting must already be collected in the reporting period - for most companies in the 2023 financial year - i.e. before the regulation on reporting on climate issues comes into force. In our opinion, however, it should not be assumed that this regulation will have an advance effect. Requirements that arise only from the ordinance and not directly from the law can only take effect from January 1, 2024 (reporting period) and thus for reporting in 2025. Transitional provisions in this regard are missing. Nevertheless, Art. 4 para. 2 of the Ordinance on Reporting on Climate Issues stipulates that electronic publication within the meaning of Art. 964c para. 2 no. 1 CO must be made at least in one internationally disseminated electronic format that is readable by humans and one that is readable by machines, and according to the transitional provision in Art. 5, this obligation must not be fulfilled until one year after the entry into force, i.e. on 1 January 2025.
105 For foreign issuers, unless they prepare an equivalent report under foreign law, SIX Swiss Exchange also requires a report on non-financial matters analogous to Art. 964b CO (Art. 11 para. 7 and no. 7a Annex DCG) for the reporting period beginning on or after 1 January 2023. In contrast, the SIX Swiss Exchange does not require any reporting regarding payments to government agencies for commodity companies and minerals and metals from conflict areas and child labor.
106 Changes could already occur in this area in the medium term. The European Union may be planning to introduce civil liability for companies. On March 10, 2021, the European Parliament passed a resolution regarding a draft directive on corporate due diligence and accountability. Subsequently, on February 23, 2022, the European Commission issued a proposal for a directive on corporate due diligence for sustainability. Article 22 thereof provides for civil liability.
V. Transitional legal issues that have not been explicitly legalized
107 The individual transitional provisions presented above do not regulate all transitional law aspects. For this reason, further areas are examined below from an intertemporal perspective. The general part of transitional law, i.e. Art. 1 to Art. 4 SchlT ZGB, must be taken into account (Art. 1 para. 1 ÜBest; above n. 6 ff.). The corresponding questions must be deciphered by means of these formulas or mechanisms.
A. Formation and amendment of the articles of association of a cooperative
108 According to Art. 830 nOR, public certification is required for the formation of a cooperative under the new law. Previously, the written form was sufficient (cf. Art. 834 para. 1 CO). All amendments to the articles of association are also subject to public certification (Art. 838a CO). In these areas, the law of the cooperative has been harmonized with the law of the stock corporation and limited liability company (cf. Art. 629 para. 1, Art. 647, Art. 777 and Art. 780 CO). Furthermore, the resolution to dissolve a cooperative - in contrast to the public limited company and private limited company (Art. 736 para. 1 no. 2 and Art. 821 para. 2 CO) - does not have to be publicly certified (cf. Art. 911 no. 2 CO).
109 No transitional periods are provided for the formation and amendments to the articles of association (cf. also n. 5 above). Accordingly, the question arises as to what happens in the case of incorporations and amendments to the articles of association that were resolved before January 1, 2023, but whose filing or registration does not take place until after January 1, 2023.
110 According to the EHRA, the date of the adoption of the resolution is correctly decisive. If the resolution was adopted before January 1, 2023, a filing or registration after January 1, 2023 does not lead to a subsequent certification requirement. The opinion of the EHRA can be justified by the fact that with regard to formal requirements, the law at the time of the conclusion of the legal transaction applies (tempus regit actum quoad formam). Art. 50 SchlT ZGB explicitly states this principle for contracts. This norm thus implements the principle of non-retroactivity within the meaning of Art. 1 SchlT ZGB. The same should therefore also apply to foundations and amendments to the articles of association of cooperatives. This also corresponds to the possibility of decomposing individual steps of a transaction, as advocated below in n. 118 ff.
111 The following opposite view would also be conceivable: the cooperative comes into existence upon entry in the commercial register (Art. 838 para. 1 CO). This is based on the date of entry in the daily register (cf. Art. 8 para. 3 lit. b HRegV). If the articles of association were drawn up in writing before January 1, 2023, but the application is made at a time when entry in the daily register is no longer possible in terms of time before January 1, 2023, it cannot be relied upon that the formal requirements of the formation have been complied with. The reason for this is that the written form itself does not yet lead to the formation of the cooperative (cf. Art. 838 para. 1 CO), consequently no right or legal relationship - prior to the entry into force of the revision of the company law on 1 January 2023 - has yet been acquired (cf. Art. 4 SchlT ZGB). However, this view does not even correspond to the organic view rejected here (cf. below n. 118 ff.). In the case of the uniform connection of the entire set of facts, only the old law comes into consideration. Otherwise, the principle of non-retroactivity would be violated (see below n. 118). In our opinion, the first view, which is also held by the EHRA, is to be followed (see above n. 110).
B. Acquisitions in Kind
112 In the new Stock Corporation Act, the provisions on acquisitions of assets are abolished (see, inter alia, Art. 628, Art. 629 para. 2 no. 4, Art. 631 para. 2 no. 6, Art. 635 no. 1, Art. 642, Art. 650 para. 2 no. 5 aOR). However, the acquisition in kind must still be stated in the case of a mixed contribution in kind and acquisition in kind (cf. Art. 634 para. 4 and Art. 650 para. 2 no. 4 CO: "any further consideration").
113 For facts relevant under stock corporation law that occurred before January 1, 2023, the old law shall continue to apply after that date (principle of non-retroactivity). Accordingly, the violation of the acquisition-in-kind provisions committed under the previous law will not be cured by the entry into force of the revision of the Stock Corporation Act (cf. Art. 1 para. 1 ÜBest in conjunction with Art. 1 para. 2 SchlT ZGB).
114 In our opinion, the general meeting of shareholders can only repeal provisions in the articles of incorporation originating from the old law after ten years or in the event of a definitive renunciation of the acquisition of assets (Art. 628 para. 4 aOR). In contrast, the EHRA is of the opinion that a cancellation as a result of the repeal of Art. 628 aOR is already possible before the expiry of ten years.
C. Share Capital in Foreign Currency
115 As of January 1, 2023, share capital in the foreign currency material to the business activity is also permissible (Art. 621 para. 2 nOR). The permissible currencies are GBP, EUR, USD and JPY (Art. 45a and Annex 3 HRegV). After incorporation, the general meeting of shareholders may resolve to change the currency with a qualified quorum (Art. 621 para. 3 and Art. 704 para. 1 no. 9 nOR). According to the dispatch, the change takes place either retroactively to the beginning of the current financial year or prospectively to the beginning of the future financial year. In our opinion, if the financial year does not coincide with the calendar year, a retroactive currency change to a date prior to January 1, 2023 cannot be decided. In principle, the new law will only apply as of its entry into force (cf. Art. 1 para. 2 ÜBest). The principle of non-retroactivity fundamentally prohibits the application of the new law to a date prior to its entry into force. There are no indications that the retroactive effect mentioned in the dispatch has a transitional character.
D. Subsequent Publicity of the Articles of Association
116 The revised law now provides that offsetting liabilities (debt-equity swaps) must be reflected in the articles of incorporation (Art. 634a para. 3 nOR). It is questionable whether this new disclosure in the articles of incorporation also applies to circumstances that occurred before January 1, 2023. With reference to the principle of non-retroactivity, this must be answered in the negative. Also in view of the risk of false certification, retrospective publication of the articles of association would not be justifiable in these cases.
117 Likewise, capital increases carried out before January 1, 2023 by conversion of freely usable equity capital (so-called increase from equity capital; Art. 652d nOR) do not have to be subsequently reflected in the articles of association.
E. Capital Transactions
118 The share capital can be increased or decreased in various procedures. These transactions can be divided into individual steps or resolutions. These steps include: Resolutions of the general meeting and/or the board of directors, share subscription, payment, capital increase report, audit confirmation, preparation of interim financial statements, debt call and the commercial register filing. These steps can take place both before and after January 1, 2023. It is now questionable whether the old or the new law should be applied. A transitional link to the respective individual step is also a possibility. Traditionally, the totality of the facts upon the occurrence of which the legal consequence is to occur is referred to as the facts of the case. It is now possible to break down the facts into their individual components (atomistic conception). Also conceivable is a uniform connection of the entire set of facts (organic conception). In the organic view, only the old law can be applied, because otherwise the principle of non-retroactivity would be violated. The simplicity and practicability of the organic approach speak in favor of it.
119 Since Art. 1 para. 1 SchlT ZGB speaks of "facts", this means that the intertemporal legislator allows the decomposition into the individual facts, i.e. a split. In principle, the new law should be applied as soon as possible (Art. 1 para. 2 ÜBest). The principle of non-retroactivity does not apply to permanent facts (see above n. 13). In our view, it is therefore not acceptable - in the absence of a special intertemporal provision - to subject the entire transaction to the old law simply because the first step took place before 1 January 2023.
120 In our opinion, it therefore applies in principle that the respective steps after January 1, 2023 are subject to the new stock corporation law. Consequently, the capital transactions will be split into their individual steps (atomistic view). The validity of those steps that took place before January 1, 2023, continues to be assessed according to the old law. These are facts that occurred already before the entry into force of the new company law, i.e. until December 31, 2022. Steps taken as of January 1, 2023 are judged according to the new law (cf. Art. 1 para. 3 SchlT ZGB).
1. Capital increase
121 The new company law provides for a six-month period for registering the capital increase with the Commercial Register Office (Art. 650 para. 3 nOR). The old law only provided for a three-month period for registering the capital increase with the Commercial Register Office (Art. 650 para. 3 aOR). Although the wording speaks of "registering", there was general agreement that registration with the Commercial Register Office was sufficient. These are forfeiture deadlines. The question thus arises as to which time limit applies if the resolution of the General Meeting of Shareholders was adopted before January 1, 2023. Since the special transitional provisions do not provide an answer, Art. 49 SchlT ZGB must be applied.
122 In its current form, Art. 49 SchlT CC was enacted on January 1, 2020, on the occasion of the revision of the statute of limitations. Although the marginal title of Art. 49 SchlT CC speaks only of "limitation", this norm also applies to intertemporal problems of forfeiture periods. The former Art. 49 para. 2 SchlT ZGB explicitly mentions "forfeiture". Art. 49 SchlT ZGB applies with regard to time limits in each case if no independent intertemporal provision exists in the corresponding area of law. Art. 49 SchlT ZGB is a lex specialis in relation to the general principles according to Art. 1 to Art. 4 SchlT ZGB.
123 According to Art. 49 para. 1 SchlT CC, the new law applies if its term is longer than the term of the previous law and the statute of limitations or forfeiture under the previous law has not yet occurred. What is time-barred or forfeited remains time-barred or forfeited. However, the commencement of an ongoing limitation or forfeiture period does not affect the entry into force of the new law (Art. 49 para. 3 SchlT ZGB). In the present case, the period for registering the capital increase is longer. If an ordinary capital increase was resolved before January 1, 2023 and the three-month registration period has not yet expired on January 1, 2023, the new six-month period will apply in our opinion. However, the six-month period starts at the time of the resolution of the general meeting of shareholders passed before January 1, 2023 (Art. 49 para. 3 SchlT ZGB). According to the EHRA, in the case of a capital increase resolved by the general meeting in 2022, only the three-month period applies.
124 Regarding the transitional legal issues in connection with the acquisition of assets, the offsetting liberalization, share capital in foreign currency and the increase from equity, see above n. 112 et seq.
2. Capital reduction
125 The debt call has been modified in the new Stock Corporation Act. Now, a one-time debt call in the SOGC is sufficient (Art. 653k para. 1 nOR). In contrast, the old law required three debt calls (Art. 733 aOR). Creditors now also have thirty days after publication in the SOGC to request security for their claims (Art. 653k para. 2 CO). Previously, this could be done within two months after the third publication in the SOGC. A right to security now exists only to the extent of the reduction of the previous coverage (Art. 653k para. 2 nOR). According to the new law, the notification must be made in writing, stating the amount and the legal grounds of the claim (Art. 653k para. 1 nOR). Furthermore, the obligation to provide security now no longer applies if the fulfillment of a claim is not jeopardized by the reduction (Art. 653k para. 3 nOR). If the audit confirmation is available, it is presumed that the fulfillment of the claim is not jeopardized (Art. 653k para. 3 nOR).
126 The debt call of a capital reduction resolved prior to January 1, 2023 is, in our opinion, governed by the law at the time of publication in the SOGC. At this point in time, the corresponding "fact" is realized with transitional legal effect. According to Art. 1 para. 1 SchlT ZGB, the legal effects of the debt call are therefore still determined according to the old stock corporation law. In case of a publication in the SOGC after January 1, 2023, on the other hand, the new company law applies to its modalities. In contrast, according to the EHRA, if the general meeting has resolved the capital reduction in 2022, the old law also applies to the debt call. The EHRA thus follows, without explicitly addressing this, the organic view (see above n. 118).
F. Compensation Law
127 Apart from Art. 6 ÜBest, there are no special transitional provisions for the remuneration law, which has been taken over from the VegüV with a few adjustments. In connection with the remuneration law, there are also some questions that have not been explicitly legislated.
128 Regarding the need for adjustments in the Articles of Association, see above n. 48 et seqq, in particular n. 49 and n. 55.
129 Regarding the adaptation of old-law contracts, see above N. 97 ff. on Art. 6 ÜBest.
1. Compensation report
130 The articles of incorporation of listed companies must contain provisions on the number of activities that members of the board of directors, the executive board and the advisory board may perform in comparable functions at other companies with an economic purpose (Art. 626 para. 2 no. 1 nOR; see above n. 49). Although a similar provision was already provided for in Art. 12 para. 1 no. 1 VegüV, it is now based on the economic purpose of the other company and no longer on its entry in the commercial register.
131 The specific situation of these activities at other companies (third-party mandates) must be reported in the compensation report. The compensation report must disclose the functions of the members of the board of directors, the executive board and the advisory board in other companies pursuant to Art. 626 para. 2 no. 1 nOR (Art. 734e para. 1 nOR). The information must include the name of the member, the name of the company and the function exercised (Art. 734e para. 2 nOR).
132 This transparency requirement is new or was not included in the OaEC. Therefore, the intertemporal question arises whether these newly required disclosures must already be made in the remuneration report even if Art. 626 para. 2 no. 1 CO has not yet been incorporated in the articles of association in the newly required form - i.e. with reference to the economic purpose - due to the two-year transition period (see above n. 49).
133 The rule in Art. 734e para. 1 NOR refers directly to the content of the articles of association required by Art. 626 para. 2 no. 1 NOR. Two argumentations are thus conceivable. Either one argues that the compensation report does not have to show the corresponding content until the articles of association have been amended - admittedly within the two-year transitional period (Art. 2 ÜBest; above n. 25 et seq.). Alternatively, the transparency provision may be considered independent of the actual content of the articles of incorporation by virtue of a direct reference to the law. The first argumentation is to be preferred in order to establish coherence between the articles of association and the compensation report as well as for reasons of practicability in favor of the company.
2. Prospective vote on variable compensation
134 Art. 735 nOR standardizes the votes of the general meeting of listed companies on compensation. In terms of content, Art. 18 VegüV was largely transferred into statutory law. New is Art. 735 para. 3 no. 4 nOR according to which, if variable compensation is voted on prospectively, the compensation report must be submitted to the general meeting of shareholders in the following year for a consultative vote.
135 Whereas Art. 31 VegüV provided for intertemporal provisions on the compensation report and votes on compensation, no such provision exists with respect to Art. 735 nOR. The advisory vote on the compensation report in the case of prior prospective votes on variable compensation is mandatory and applies as mandatory law even without inclusion in the Articles of Association. This means that as of January 1, 2023, the compensation report must mandatorily be subject to a consultative vote by the General Meeting of Shareholders in case of a prospective vote on variable compensation (cf. Art. 1 para. 3 SchlT CC and Art. 1 para. 2 ÜBest). Since this corresponds to the previous best practice under the VegüV, not too much should change for practice.
136 As a slightly modified successor to Art. 24 para. 2 no. 3 lit. b VegüV, Art. 154 para. 2 lit. c no. 3 SCC provides for the punishment of members of the board of directors who prevent the general meeting of shareholders from voting on the compensation determined by the board of directors for itself, the executive board and the advisory board. Thus, the prevention of the aforementioned consultative vote is now also covered by this criminal offense.
3. Additional amount
137 In the event that the General Meeting of Shareholders votes prospectively on the compensation of the Executive Board, the Articles of Association may provide for an additional amount for the compensation of persons who are newly appointed as members of the Executive Board after the vote. The additional amount may now only be used for compensation of the new members of the Executive Board and not, as previously, also for internal promotions (cf. Art. 19 para. 1 VegüV and Art. 735a para. 1 nOR). However, corresponding provisions of the Articles of Association remain in force for two years, i.e. until December 31, 2024 (Art. 2 para. 2 ÜBest). The two-year transitional period applies here because this is an area which was amenable to statutory regulation prior to January 1, 2023 (cf. in detail above n. 32 ff.). Accordingly, from January 1, 2025 onwards, no remuneration may definitely be paid from the additional amount for promotions.
4. Duration of Contracts for Remuneration
138 Pursuant to Art. 735b para. 1 NOR, the duration of the contracts on which the remuneration of the members of the Board of Directors is based may not exceed the term of office - in concreto one year in each case. The duration of fixed-term contracts and the notice period of indefinite contracts underlying the remuneration of members of the Executive Board and the Advisory Board may not exceed one year (Art. 735b para. 2 nOR). Contracts with members of the Board of Directors concerning compensation can thus only be validly concluded from one General Meeting of Shareholders to the next, as is the case with the term of office. Each re-election triggers this period anew. In terms of transitional law, this means two things. First, contradictory provisions of the Articles of Association must be amended within a period of two years, otherwise they automatically cease to apply (cf. Art. 2 para. 2 ÜBest; see above n. 32). Secondly, already existing contracts that contradict this must also be amended within two years of the entry into force of the new law. If the company wishes to avoid being bound by contracts which contradict the articles of association, the two points mentioned must be reconciled. After the expiry of this two-year period, the provisions of the new law are applicable to all contracts (Art. 6 ÜBest). This means that the aforementioned time limits become mandatory law which takes precedence over the corresponding contracts (cf. Art. 20 para. 2 CO). If one would like to avoid this interference in the contracts, a prior adjustment of the contract is necessary.
G. Right of information and inspection and special investigation
139 There have also been changes to the right to information and inspection as well as to the special investigation (e.g. new thresholds). It is questionable whether these modifications also apply to facts that occurred before January 1, 2023. This is to be affirmed. The Federal Court ruling mentioned above in n. 44 applies, according to which the special audit at that time also applied to facts that had occurred before July 1, 1992. However, the legal assessment of these facts is based on old law due to the principle of non-retroactivity.
H. Place of meeting abroad
140 Prior to January 1, 2023, a general meeting of shareholders could be held abroad without a provision in the Articles of Association - within the limits of the prohibition of abuse of rights. Since January 1, 2023, this requires a mandatory basis in the articles of association as well as the designation of an independent proxy in the notice of the meeting (Art. 701b para. 1 nOR). The introduction of this provision in the Articles of Association requires a qualified quorum (Art. 704 para. 1 no. 11 CO).
141 This raises the question of whether companies (on the basis of Art. 2 para. 2 ÜBest) may continue to hold general meetings abroad without a statutory basis and without independent proxy voting for a period of two years. In principle, the new law applies to existing companies as of January 1, 2023 (Art. 1 para. 2 ÜBest; above n. 22 f.). The corresponding exception in Art. 2 ÜBest applies only to articles of association and regulations (see above n. 31). A practice of the Company under the old law of holding the General Meeting at a foreign venue without an independent proxy can therefore no longer be maintained as of January 1, 2023 - without a basis in the Articles of Association. A resolution which violates the requirements of the new law is contestable (Art. 706 para. 1 CO). Thus, the Commercial Register Office must register a resolution of a general meeting with a foreign venue - subject to a block on the register (see above n. 69).
142 The question also arises as to whether old-law provisions of the articles of association relating to a foreign venue that were introduced before January 1, 2023 with a simple quorum are sufficient. Due to the principle of non-retroactivity, such a provision in the Articles of Association is sufficient as of January 1, 2023.
I. Casting vote at the General Meeting
143 Pursuant to Art. 703 para. 2 of the Swiss Code of Obligations, the Articles of Association may provide that, in the event of a tie, the chairperson has the casting vote. A corresponding provision in the articles of association must be introduced with the qualified quorum (Art. 704 para. 1 no. 10 nOR). Already under the old law, the chairperson could in principle be given the casting vote in the event of a tie. A corresponding provision in the articles of association could - in contrast to the new law - be introduced by means of a simple quorum (Art. 704 aOR e contrario).
144 In connection with the casting vote, the question arises as to whether provisions of the Articles of Association included prior to January 1, 2023 are valid after January 1, 2023 with regard to the casting vote if they have only been introduced by means of a simple quorum. Due to the principle of non-retroactivity, the provision in the Articles of Association remains valid after January 1, 2023 if it was adopted with a simple quorum before that date.
145 As before, the casting vote is also not possible under the new law if the capital-based assessment of voting rights is mandatory (cf. Art. 693 para. 3 and Art. 704 CO). This results, among other things, from the fact that the legal basis was introduced in para. 2 of Art. 703 CO, which regulates the simple quorum. Art. 703 para. 2 nOR was only introduced by the parliament. A corresponding discussion on the relativization of the casting vote with regard to the mandatory capital-based measurement of voting rights did not take place in the Councils.
146 In the case of the GmbH, no transitional legal problems arise in this context. Already under the old law, the casting vote was permissible in the shareholders' meeting (Art. 808a OR). As in the case of a stock corporation, however, the casting vote does not apply to the mandatory capital-based assessment of voting rights (cf. Art. 806 para. 3 and Art. 808b CO). The introduction of the casting vote does not require a qualified quorum under the new law either (cf. Art. 808b nOR). In our opinion, this discrepancy with company law is not justified.
J. Interim financial statements
147 The purpose of Art. 960f nOR is to achieve a certain uniformity for interim financial statements in company law. Scattered special provisions were repealed in the same course (e.g. Art. 11 para. 2, Art. 35 para. 2 and Art. 58 para. 2 aFusG). However, the legal regulation cannot list every special feature of the interim financial statements that results from the reason for preparation and the purpose of use. In practice, this will be taken into account on a case-by-case basis.
148 Interim financial statements may be necessary in the following constellations, for example:
Capital reduction (Art. 653l nOR);
Payment of an interim dividend (Art. 675a CO);
Merger (Art. 11 para. 1, Art. 80 and Art. 89 FusG);
Demerger (Art. 35 para. 1 FusG);
transformation (Art. 58 para. 1 FusG);
Overindebtedness (Art. 725b nOR).
149 Art. 960f para. 1 nOR stipulates that interim financial statements must be prepared in accordance with the provisions governing annual financial statements. Accordingly, simplified interim financial statements are no longer possible - despite the simplifications and abbreviations within the meaning of Art. 960f para. 2 nOR.
150 In terms of timing, the question arises as to when interim financial statements must be prepared in accordance with Art. 960f nOR. For situations that occur after January 1, 2023 and require interim financial statements, Art. 960f nOR clearly applies (cf. Art. 1 para. 2 ÜBest). For situations that already began before January 1, 2023, we believe that what has already been said with regard to capital transactions also applies, according to which a breakdown into individual steps can be made (atomistic view; in detail above n. 118 ff.). The decisive factor is the signing of the interim financial statements by the chairman of the highest management and administrative body and the person responsible for the interim financial statements within the company (cf. Art. 960f para. 3 nOR). The audit of the interim financial statements is again a new step that is not relevant for the determination of the applicable law of the interim financial statements in transitional law terms.
151 An old-law interim financial statement or interim financial statement prepared or signed before January 1, 2023 (above n. 150) remains valid. In our opinion, the Commercial Register Office should accept such interim financial statements in the case of capital reductions and restructurings even in the case of filings or registrations after January 1, 2023.
152 Overindebtedness is a permanent fact (above n. 99 and below n. 162). Thus, in principle, the new law applies (above n. 13). However, in the case of over-indebtedness, action must be taken with due haste (Art. 725b para. 6 nOR). Therefore, it would be impractical to require a new interim financial statement pursuant to Art. 960f nOR, which would still have to be audited (cf. Art. 725b para. 2 nOR). In our opinion, an old-law interim financial statement is sufficient.
K. Creation of Reserves and Dividends
153 New provisions on the formation of reserves and the declaration of dividends apply without restriction from January 1, 2023, i.e. in particular also to the annual result for 2022 (Art. 1 para. 2 ÜBest; cf: Art. 671 et seq., Art. 674, Art. 675 para. 3 nOR).
154 Thus, a second allocation to the legal reserve is no longer necessary for the profit generated in the 2022 financial year, even if a dividend of 5% has been distributed as a share of profit (see Art. 671 para. 2 no. 3 aOR).
L. Restructuring right
155 As of January 1, 2023, the new reorganization law pursuant to Art. 725 et seq. aOR shall apply in principle (cf. Art. 1 para. 2 ÜBest). Only in the case of a stay of bankruptcy within the meaning of Art. 725a aOR does Art. 5 ÜBest provide for a rule which allows the old law to prevail even after 1 January 2023 (see above n. 93 ff.).
1. imminent insolvency
156 Under both the old and the new law, the board of directors has the duty to plan, manage and monitor the liquidity and solvency of the company (cf. Art. 716a para. 1 no. 3 CO/nOR). In contrast, the facts of imminent insolvency according to Art. 725 nOR are now explicitly listed in the law, thus underlining the importance of liquidity or solvency. If the company threatens to become insolvent, the Board of Directors shall take measures to ensure solvency (Art. 725 para. 2 nOR). To the extent necessary, it shall take further measures to reorganize the company or shall propose such measures to the General Meeting of Shareholders to the extent that they fall within the latter's competence. If necessary, it shall submit an application for a debt-restructuring moratorium (Art. 725 para. 2 nOR). This obligation also exists if the impending insolvency occurs as a result of facts that took place before January 1, 2023 and are continuing. The imminent insolvency is a permanent fact which is assessed according to the new law as of January 1, 2023 (cf. n. 13 above).
2. Loss of capital
157 The loss of capital is now governed by Art. 725a nOR. Compared to the old law, the calculation basis has been explicitly reduced to the non-distributable part of the legal reserves (cf. Art. 725a nOR). Under the old law, the prevailing doctrine and practice held the view that the entire general reserve, including its distributable portion, is decisive. Although the wording of the law bases the determination of the capital loss on the last annual financial statements, the prevailing view is that the capital loss can also occur during the financial year or must be determined by the board of directors. If prior to January 1, 2023 a capital loss existed according to the calculation on the entire general reserve, i.e. according to part of the doctrine on Art. 725 para. 1 aOR, the new calculation basis will certainly apply as of January 1, 2023. If there is no capital loss with the new calculation, the Board of Directors will not incur any obligations due to a capital loss.
158 The new law no longer provides for a mandatory convocation of a general meeting (cf. Art. 725a para. 1 nOR). A general meeting of shareholders is only to be held if the measures to remedy the loss of capital fall within its competence (Art. 725a para. 1 nOR in fine).
159 If a loss of capital occurred shortly before January 1, 2023, it is in our opinion no longer mandatory to convene a general meeting after January 1, 2023. In our view, the existence of a capital loss is a permanent fact which will be assessed under the new law as of January 1, 2023 (cf. above n. 13).
160 In the event of a capital loss, the new law requires that, even in the event of an opting-out, the last annual financial statements be subjected to a limited audit by a licensed auditor prior to their approval by the general meeting of shareholders (Art. 725a para. 2 nOR). If the board of directors submits an application for a moratorium, this obligation does not apply (Art. 725a para. 3 nOR). In our opinion, this also applies to the annual financial statements for the financial year 2022 because, as mentioned above, the capital loss constitutes a permanent fact (cf. above n. 159).
3. Overindebtedness
161 The new law regulates overindebtedness in Art. 725b nOR. The concept and facts of overindebtedness remain unchanged. However, Art. 725 para. 4 no. 2 CO now expressly provides for silent reorganization. The notification of the court may be omitted as long as there is a reasonable prospect (i) that the over-indebtedness can be remedied within a reasonable period of time, but no later than ninety days after the presentation of the audited interim financial statements, and (ii) that the claims of the creditors are not additionally jeopardized.
162 Overindebtedness is a permanent situation. Thus, in principle, the new law applies as of January 1, 2023 (see above n. 13 and n. 99 [on the special rule for subordination]). The maximum period of ninety days therefore also applies to overindebtedness that occurred before January 1, 2023. However, days of said period accrued before January 1, 2023 are to be taken into account. Firstly, the facts of the case cannot be broken down into individual steps, which is why a uniform connection to the new law is required from an intertemporal point of view (cf. on the breakdown into individual steps above n. 118 ff.). Secondly, this result is reached by means of a teleological element of interpretation. The protection of creditors in the event of over-indebtedness of the company dictates that they should not wait any longer by not including the days accrued before January 1, 2023 in the calculation of the ninety-day maximum period within the meaning of Art. 725 para. 4 no. 2 nOR.
163 Under the old law, court practice in granting a tolerance period was more flexible and in some cases more generous than the current rule in Art. 725 para. 4 no. 2 CO with a ninety-day maximum period. In a complex case, the Commercial Court of the Canton of Zurich even granted a tolerance period of eight months. The doctrine considers the ninety-day maximum period to be too short for complex cases. In the context of transitional law, it is questionable how to deal with complex cases whose over-indebtedness occurs before January 1, 2023 and continues under the new law. Since there is no transitional law exception for this, the ninety-day maximum period of the new law applies in principle. As already stated in n. 162, over-indebtedness is a permanent situation, for the assessment of which the new law applies (see also above n. 13 and n. 99).
M. Actions under Stock Corporation Law
164 Corporate law provides for various actions. These serve either to remedy unlawful conditions or to obtain restitution of benefits or compensation for damages. From the perspective of transitional law, the primary interest is in matters that arose prior to January 1, 2023, and thus under the old law, but which are not brought before the courts until after that date, i.e., under the new law, and are therefore judged by the courts.
165 Material aspects of these actions are presented below. In the absence of special rules, the general rules pursuant to Art. 1 to Art. 4 SchlT ZGB are to be consulted in order to resolve the questions of transitional law (cf. Art. 1 para. 1 ÜBest; above n. 7 ff.). However, these norms do not apply to procedural law. In civil procedural law, pending proceedings are continued under the old procedural law at the instance concerned and the new procedural law is applied in any appeal proceedings (cf. Art. 404 f. CPC). In the following, aspects of substantive law are presented in each case for which the transitional provisions of the CPC do not apply. The revision of the Stock Corporation Act only led to minor changes in the CPC (cf. Art. 5 para. 1 lit. g and Art. 250 lit. c nZPO). For this reason, the transitional provisions of the CPC are not likely to play a major role in the present case.
1. Action for restitution
166 The revision of the Stock Corporation Act leads to changes in the action for restitution, which raises the following transitional questions:
167 The personal scope or the passive legitimacy of the action for restitution is considerably extended. Pursuant to Art. 678 para. 1 nOR, the action for restitution now also covers the members of the management, the advisory board as well as material and de facto bodies ("persons involved with the management"). Unjustified repayments of statutory capital reserves and retained earnings as well as of inadmissible remuneration are now covered by the material scope of the action for restitution (cf. Art. 678 para. 1 nOR). The principle of non-retroactivity within the meaning of Art. 1 para. 1 SchlT ZGB means that the extended personal and material scope of application only applies to benefits from 1 January 2023 (cf. also Art. 1 para. 2 ÜBest). In our opinion, there is also no exception pursuant to Art. 2 SchlT ZGB from the principle of non-retroactivity because the new Stock Corporation Act does not contain any provisions that have been established for the sake of public order and morality (cf. above n. 18).
168 From a material point of view, the new law waives the requirement of bad faith (cf. Art. 678 para. 1 aOR). However, Art. 678 para. 3 nOR refers to Art. 64 CO. According to Art. 64 CO, the defendant can object to the restitution by pleading that at the time of the restitution there was no longer any enrichment unless the alienation was not made in good faith or the restitution could not be expected. The circumstance of the lack of enrichment must be proven by the person potentially liable for restitution (Art. 678 para. 3 nOR in conjunction with Art. 64 OR: "demonstrable enrichment"). Art. 64 CO: "demonstrably no longer enriched at the time of the recovery"). In contrast, the good faith of the person liable for restitution is presumed (Art. 3 para. 1 CC). Accordingly, under the new law, any person who is still enriched at the time of recovery - regardless of whether in good or bad faith - is liable for restitution.
169 Furthermore, the obvious disproportion to the economic situation of the company is now no longer a constituent element (cf. Art. 678 para. 2 aOR and Art. 678 para. 2 nOR).
170 For benefits received before January 1, 2023, the old law applies with regard to the requirement of bad faith (n. 168 above) and the economic situation of the company (n. 169 above). This results from the principle of non-retroactivity (Art. 1 para. 1 SchlT ZGB; generally above n. 11 ff.). Art. 678 OR speaks of reference. In terms of transitional law, therefore, it is the receipt of the benefit that is the decisive fact and not any obligation transaction. The obligation transaction usually does not come about in any case due to the lack of authority to represent or would otherwise be null and void.
171 A different view could be reached if the enrichment leading to restitution were qualified as a permanent fact. In the case of permanent facts, the new law applies from the time it comes into force (cf. n. 13 above). However, the enrichment has occurred at the time of the reference, the corresponding fact has therefore been realized or completed at this time. Accordingly, in our opinion, there is no permanent fact.
172 The General Meeting of Shareholders may decide that the company bring an action for restitution (Art. 678 para. 5 sentence 1 nOR). In doing so, it may entrust the board of directors or a representative with the conduct of the proceedings (Art. 678 para. 5 sentence 2 nOR). A comparable procedural mechanism can be seen in the special audit. After the introduction of the special audit at that time, the Federal Supreme Court decided that it also applies to facts before its entry into force (above n. 44). By analogy, it can therefore be argued that the General Assembly is also entitled to this competence for actions for restitution concerning facts that materialized before January 1, 2023. However, the substantive requirements of the action for restitution are assessed according to the old law due to the principle of non-retroactivity (cf. Art. 1 para. 1 SchlT ZGB; see also above n. 44). A different result could be reached by arguing that the persons liable for restitution trusted that they could only be sued by the company if the board of directors decided so itself (cf. Art. 678 para. 3 CO). Such trust had not been protected by the Federal Supreme Court in similar constellations. Thus, as already mentioned, a factual situation that had occurred before the special audit at that time came into force could be investigated by means of a special audit (above n. 44).
173 The new law now regulates the statute of limitations more comprehensively and in line with the new statute of limitations in Art. 678a nOR. The old law provided for a period of five years from receipt of performance in any case (Art. 678 para. 4 aOR). There is now a relative time limit of three years from knowledge. A ten-year absolute time limit is provided for from the date on which the claim for restitution arises (Art. 678a para. 1 nOR). In Art. 678a para. 2 CO, the statute of limitations is coordinated with the criminal statute of limitations, as is customary in statute of limitations law.
174 For intertemporal questions relating to the statute of limitations, Art. 49 SchlT ZGB applies as lex specialis (see above n. 121 ff.). With the relative three-year period, the new law introduced a shorter period than the previous law. In contrast, the absolute ten-year period is a longer period than that of the previous law. With regard to the shorter three-year period, the previous law applies (Art. 49 para. 2 SchlT ZGB). Thus, the relative three-year period only applies to unjustified benefits received from January 1, 2023, because the five-year period under Art. 678 para. 4 aOR is longer. Art. 49 para. 1 SchlT ZGB is decisive for the longer ten-year period and, if applicable, a longer period due to a criminal act. Insofar as the five-year limitation period within the meaning of Art. 678 para. 4 aOR has not yet come into force, the above-mentioned periods of the new law shall apply in this respect. Otherwise, the entry into force of the new limitation periods does not affect the commencement of the current limitation period (cf. Art. 49 para. 3 SchlT ZGB; cf. also n. 123 above).
175 The limitation period is suspended during the proceedings for the ordering of a special investigation and its execution (Art. 678a para. 1 nOR in fine). This standstill is neither specifically regulated by transitional law nor covered by Art. 49 SchlT ZGB. Pursuant to Art. 49 para. 4 SchlT ZGB, unless specifically regulated, the new law applies from the time of entry into force (cf. also Art. 1 para. 2 ÜBest; cf. above n. 22 f.). In our view, the suspension of the time limit therefore also applies from 1 January 2023 if the special investigation was ordered or its implementation commenced before 1 January 2023 (cf. also on the similar constellation in the action for liability below n. 181). Due to the principle of non-retroactivity, the standstill in proceedings or a special investigation initiated before January 1, 2023 certainly does not occur before January 1, 2023 (Art. 1 para. 1 SchlT ZGB). Furthermore, this is also a permanent matter, which is why the new law applies in principle from 1 January 2023 and the principle of non-retroactivity is irrelevant (cf. n. 13 above).
176 In the event of the company's bankruptcy, Art. 757 CO applies mutatis mutandis (Art. 678 para. 6 CO). This provision facilitates the acquisition of the right of action by company creditors. A request for assignment, a resolution of the second creditors' meeting and an assignment order of the bankruptcy administration are not required. The content is the same as that of an action based on assignment within the meaning of Art. 260 SchKG. It is necessary that the bankruptcy administration waives the assertion of the claim and that the claim of the corporate creditor is collocated. Furthermore, Art. 678 para. 6 nOR means that in future shareholders can also bring an action for restitution if the bankruptcy administration waives this right. Art. 678 para. 6 nOR or its reference to Art. 757 CO is a procedural mode which will also apply from January 1, 2023 for payments which occurred before January 1, 2023. The substantive assessment is based on old law due to the principle of non-retroactivity (cf. Art. 1 para. 1 SchlT ZGB; see above n. 172).
2. Liability action
177 From the perspective of transitional law, liability actions are to be examined essentially with a view to the statute of limitations. Liability under company law, namely founders' liability (Art. 753 CO), liability for administration, management and liquidation (Art. 754 CO) and auditors' liability (Art. 755 CO) are subject to the common provision of Art. 760 nOR on limitation. This article underwent two adjustments.
178 The relative limitation period was reduced from five to three years. Accordingly, the claim for damages against the responsible persons lapses in three years from the day on which the injured party or parties became aware of the damage and of the person liable to pay compensation (Art. 760 para. 1 nOR). The dispatch explains this adjustment with reasons of standardization and simplification as well as the adjustment to the concept of the current revision of the statute of limitations law, which is why the same relative statute of limitations period as for the action for restitution (cf. above n. 173) as well as the liability actions in the cooperative law (Art. 919 para. 1 nOR) would last three years. In the case of a limited liability company, the liability under stock corporation law applies due to the reference in Art. 827 CO. This is a dynamic reference to the applicable law.
179 In the case of limitation periods - in the absence of a special provision under transitional law - Art. 49 SchlT ZGB applies (cf. already above n. 121 f.). If the new law stipulates a shorter period, the previous law applies in accordance with Art. 49 para. 2 SchlT ZGB. The revision of the corporation law shortened the relative limitation period. Thus, the five-year period continues to apply to old-law cases. In our opinion, old-law cases exist for facts that materialized before January 1, 2023. This applies regardless of whether the injured party becomes aware of the facts before or after January 1, 2023. The principle of "lex mitior" within the meaning of Art. 2 para. 2 and Art. 389 StGB, which is familiar from criminal law, does not apply in liability law. Thus, a tortfeasor cannot claim to benefit from the shorter limitation period from 1 January 2023.
180 The absolute limitation period of ten years, calculated from the day on which the harmful conduct occurred or ceased, remains unchanged (Art. 760 para. 1 CO). Also unchanged is the special provision on the limitation period if the damaging conduct constitutes a criminal act (Art. 760 para. 2 CO). Accordingly, no transitional questions arise in this context.
181 Furthermore, a suspension of the limitation period is now provided for during proceedings for the ordering of a special investigation and during its conduct (Art. 758 para. 2 in fine and Art. 760 para. 1 nOR in fine). This applies both with regard to the forfeiture of the right of action following the discharge decision (Décharge) and with regard to the statute of limitations. This suspension of the time limit is not specifically regulated by transitional law. Pursuant to Art. 49 para. 4 SchlT ZGB, unless specifically regulated, the new law applies from the time of entry into force (cf. also Art. 1 para. 2 ÜBest; cf. above n. 22 f.). In our opinion, the suspension of the time limit also applies from 1 January 2023 if the special investigation was ordered or commenced before 1 January 2023 (cf. also on the similar constellation in the restitution action above n. 175). Accordingly, in the case of proceedings or a special investigation initiated before 1 January 2023, the standstill does not occur before 1 January 2023 (cf. Art. 1 para. 1 SchlT ZGB). Moreover, the special investigation is a permanent matter to which the new law applies from 1 January 2023 and the principle of non-retroactivity is not to be observed (cf. n. 13 above).
182 According to previous case law of the Federal Supreme Court, subordinations are not to be taken into account in the calculation of indirect damage. Thus, claims subject to subordination were also included in the corporate loss. Due to criticism of this case law, the legislator adopted Art. 757 para. 4 nOR, according to which claims of corporate creditors that have subordinated behind all other creditors are now no longer to be included in the calculation of the corporate loss.
183 However, due to the principle of non-retroactivity, this provision only applies to subordinations after January 1, 2023 (cf. Art. 1 para. 1 SchlT ZGB). Incidentally, injurers cannot invoke the criminal law principle of the "lex mitior" here either (cf. n. 179 above).
3. Action for annulment and rescission
184 The regime of actions for rescission and nullity in the case of resolutions of the general meeting of shareholders and nullity in the case of resolutions of the board of directors was not changed in the revision of the Stock Corporation Act (cf. Art. 706 et seq. CO).
185 Due to the principle of non-retroactivity, the voidability or invalidity of resolutions passed before January 1, 2023 can only be justified by means of the old law (cf. Art. 1 para. 1 SchlT ZGB). After January 1, 2023, voidability or nullity may only be based on the old law if the transaction is still subject to the old law. In our opinion, the violation of transitional law may also lead to voidability or nullity.
186 Questions regarding voidability and nullity are also likely to arise in connection with the new instruments of the revised Stock Corporation Act, such as the capital band and the digital forms of the General Meeting. However, these are not intertemporal issues, but rather the legal consequences of new provisions of stock corporation law.
4. Action for dissolution
187 As of January 1, 2023, shareholders with 10% of the votes are also entitled to file an action for dissolution (Art. 736 para. 1 no. 4 nOR). The plaintiffs no longer have to represent 10% of the share capital in every case, as was previously the case (cf. Art. 736 no. 4 aOR). The capacity to sue must already exist at the time of filing the action for dissolution. Thus, a shareholder cannot invoke the new threshold if he or she has filed the action for dissolution before January 1, 2023.
188 Art. 659 para. 3 of the Swiss Code of Obligations now provides that, in the case of the acquisition of treasury shares, the maximum threshold, also in connection with an action for dissolution, is 20% of the share capital entered in the Commercial Register. Shares acquired in excess of 10% must be sold within two years or cancelled by means of a capital reduction (Art. 659 para. 3 nOR). This increases the scope of action for the court and the board of directors. In our opinion, the important reason that leads to an action for dissolution is a permanent fact (cf. n. 13 above). Accordingly, Art. 659 para. 3 nOR can also be applied to an action for dissolution initiated before January 1, 2023.
N. Arbitration
189 Pursuant to Art. 697n para. 1 nOR, the articles of association may provide that disputes under company law shall be adjudicated by an arbitral tribunal having its seat in Switzerland (so-called statutory arbitration clause). The arbitration clause has the same legal effects as the other provisions of the articles of association. This means that all shareholders and corporate bodies bound by the Articles of Association are also covered by the statutory arbitration clause. This also applies to new shareholders. However, the subjective scope of the statutory arbitration clause can be limited by the articles of association (cf. Art. 697n para. 1 sentence 2 nOR). In addition, contractual arbitration clauses are possible (also in the articles of association). Only the consenting shareholders and corporate officers and their legal successors are bound by these.
190 Art. 697n nOR applies accordingly to the GmbH (Art. 797a nOR). In the case of other entities such as associations and cooperatives, there is no corresponding provision, as arbitration was already deemed permissible under the previous law.
191 A statutory arbitration clause becomes effective upon entry in the Commercial Register (see Art. 45 para. 1 lit. h and Art. 73 para. 1 lit. v nHRegV). Since the statutory arbitration clause within the meaning of Art. 697n nOR is a new option for the revision of the company law, no transitional periods need to be observed.
192 It is questionable whether a statutory arbitration clause also applies to the adjudication of disputes that arose prior to the effectiveness of the arbitration clause (thus partly also prior to January 1, 2023). According to Vogt/Hirsiger-Meier/Hofer, the statutory arbitration clause applies to all disputes under corporate law which are brought before the courts after the effectiveness of the statutory arbitration clause (see above n. 191). Allemann and Meier limit the effect to future disputes. Allemann bases his view on the wording of Art. 697n para. 1 nOR, which speaks of "arbitration clause". Traditionally (especially in the then KSG), a distinction was made between "arbitration agreements" for existing disputes and "arbitration clauses" for future disputes. Meier has procedural and constitutional concerns about such broad temporal application. According to Meier, an effect for disputes that arose prior to the effectiveness of the arbitration clause is only permissible if the privatautonome freedom of decision and action of the persons bound by it was taken into account. Whether the legislator was aware of the distinction between arbitration agreements and arbitration clauses when creating Art. 697n nOR may be doubted. The term "arbitration clause" was much more likely to be used because it is a clause in the articles of association and it is much more common than the term "arbitration agreement". Against Meier's view speaks the fact that the legislator did not consider intertemporal reservations in Art. 697n nOR. The legislator merely installed the protective mechanism of the qualified quorum (Art. 704 para. 1 no. 2 nOR). If necessary, shareholders must defend themselves by means of an action for rescission or nullity (Art. 706 et seq. CO). Thus, the admissibility for already existing disputes is to be assumed. Whether the procedural risk is worth it based on the divided views in the doctrine is questionable.
193 It is questionable whether the arbitration clause also affects state court proceedings already pending before January 1, 2023. According to Allemann, an arbitration clause introduced after January 1, 2023, does not confer jurisdiction on an arbitral tribunal. Legitimate reliance on state jurisdiction as a dispute resolution mechanism should be protected, he said. Moreover, such a deprivation of the state court and the resulting restart of law enforcement would be abusive of law. Allemann's view is to be agreed with. The principle of non-retroactivity protects against a deprivation of the state court by a newly introduced arbitration clause. In this respect, the plaintiff shareholder has a trust that the initiated (state) dispute resolution mechanism will be applied. This is an already acquired position of trust to which the old law applies (Art. 4 SchlT ZGB e contrario; above n. 19 ff.). The blocking effect pursuant to Art. 64 para. 1 lit. a CPC also speaks in favour of the continuation of the state proceedings.
194 From a transitional law perspective, it is questionable whether Art. 697n nOR applies to already existing (statutory) arbitration clauses. Even after January 1, 2023, arbitration clauses in the articles of association can be qualified as arbitration clauses with a contractual character. This qualification means that only (written) consenting persons are bound by them. However, only a few articles of association are likely to contain arbitration clauses with a contractual character, because the commercial registry offices have regularly refused to register such (spurious) provisions in the articles of association. If one assumes, in line with a large part of the doctrine and the older case law of the Federal Supreme Court, that arbitration clauses in the articles of association exist, there may be a contradiction with the current rule. This is due to the fact that today's rule requires specific requirements (qualified quorum for introduction, applicability of Art. 353 et seq. CPC, seat of the arbitral tribunal in Switzerland, guarantee of special procedural rights and reference to the arbitration clause in the commercial register entry). If the existing provision of the Articles of Association does not meet these requirements, it must be amended within two years (Art. 2 para. 1 ÜBest). Otherwise, it automatically ceases to have effect (Art. 2 para. 2 ÜBest; in general, above n. 32 et seq.). Meier points out that arbitration clauses that were in the Articles of Association prior to January 1, 2023, are only valid if sufficient procedural legal protection is observed, which does not exceed the requirements of Art. 697n E-OR 2016. It is disputed whether it is sufficient if the simple quorum at that time was complied with or whether a confirmation under a qualified quorum is required. According to Vogt/Hirsiger-Meier/Hofer, the qualified quorum is a requirement based in substantive law to justify the waiver of state jurisdiction as well as the corporate effect vis-à-vis all shareholders. Meier argues against this on the basis of the prohibition of retroactivity and thus considers an arbitration clause introduced under the then valid simple quorum to be valid in principle. The second view is probably the correct one because it respects intertemporal principles - such as the principle of non-retroactivity. However, in order to avoid risks, it is recommended to have the arbitration clause confirmed by the general meeting (with the qualified quorum).
195 In the law governing limited liability companies, the arbitration clause is said to have been permissible even before January 1, 2023, because statutory obligations can be imposed on the shareholders (cf. Art. 796 CO). Since Art. 797a nOR refers to stock corporation law, the arbitration clause must comply with the new law in the future, i.e. within two years (cf. Art. 2 ÜBest; above n. 32 ff.) (see above n. 194).
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Materials
Bericht des Bundesrates in Erfüllung der Postulate 17.4121 Arslan vom 13.12.2017 und 17.4185 Ruiz vom 14.12.2017 Einführung eines dritten Geschlechts oder Verzicht auf den Geschlechtseintrag im Personenstandsregister – Voraussetzungen und Auswirkungen auf die Rechtsordnung, 21.12.2022 (zit. Bericht des Bundesrates zum dritten Geschlecht).
Botschaft zur Änderung des Obligationenrechts (Aktienrecht) vom 23.11.2016, BBl 2017 S. 399 ff. (zit. Botschaft Aktienrecht 2016).
Eidgenössisches Amt für das Handelsregister, Faktenblätter zum neuen Aktienrecht, REPRAX 4 (2022), S. 151–176 (zit. EHRA, Faktenblätter).
Eidgenössisches Amt für das Handelsregister, Praxismitteilung 1/23 vom 21.3.2023, Fragen im Zusammenhang mit dem Inkrafttreten des neuen Aktienrechts (zit. EHRA, Praxismitteilung 1/23).
Eidgenössisches Amt für das Handelsregister, Praxismitteilung 3/22 vom 19.12.2022, Fragen im Zusammenhang mit dem Inkrafttreten des neuen Aktienrechts (zit. EHRA, Praxismitteilung 3/22).
Eidgenössisches Amt für das Handelsregister, Praxismitteilung 1/22 vom 17.1.2022, Statutenänderungen im Hinblick auf die Revision des Obligationenrechts (Aktienrecht) vom 19.6.2020 (zit. EHRA, Praxismitteilung 1/22).
Eidgenössisches Amt für das Handelsregister, Mitteilung an die kantonalen Handelsregisterbehörden betreffend die Senkung des Nennwerts von Aktien auf einen Rappen vom 22.1.2001 (zit. EHRA, Mitteilung 2001).
Entwurf zur Änderung des Obligationenrechts (Aktienrecht) vom 23.11.2016, BBl 2017 683 ff. (zit. Entwurf Aktienrecht 2016).