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- Art. 808c CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 2 PRA
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- Art. 1 IMAC
- Art. 1a IMAC
- Art. 3 para. 1 and 2 IMAC
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- Art. 11b IMAC
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- Art. 32 IMAC
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- Vorb. zu Art. 1 FADP
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- Art. 5 lit. c FADP
- Art. 5 lit. d FADP
- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
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- Art. 10 FADP
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- Art. 31 para. 2 lit. e FADP
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- Art. 72a FADP
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- Art. 1 CCC (Convention on Cybercrime)
- 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. 16 CCC (Convention on Cybercrime)
- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 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)
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- Art. 2 para. 1 AMLA
- Art. 2a para. 1-2 and 4-5 AMLA
- Art. 2 para. 2 AMLA
- Art. 2 para. 3 AMLA
- Art. 3 AMLA
- Art. 7 AMLA
- Art. 7a AMLA
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- Art. 38 AMLA
FEDERAL CONSTITUTION
FEDERAL ACT ON DIRECT FEDERAL TAX
MEDICAL DEVICES ORDINANCE
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
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
FEDERAL ACT ON MEDICINAL PRODUCTS AND MEDICAL DEVICES
TAX HARMONISATION ACT
BANKING ACT
- I. Key Provisions
- II. Absence of the Board of Directors
- III. Removal of a Board Member
- IV. Legal Relationship Between the Board of Directors and the Corporation
- Bibliography
- Case Law Index
I. Key Provisions
A. Content
1 With the amendment of June 19, 2020, Art. 710 of the Swiss Code of Obligations (OR) establishes new rules regarding the term of office and election of board members for both publicly traded and non-publicly traded companies. As before, however, reelection remains permissible in both cases.
B. Term of Office
2 For companies whose shares are listed on a stock exchange, the term of office begins as soon as the elected board member has accepted the election and ends no later than the conclusion of the next annual general meeting. A shorter term of office is permitted; a longer term is excluded under Art. 95(3)(a) of the Federal Constitution. As a rule, this results in an annual election. However, this time limit entails risks. In particular, it could lead the board of directors to adopt a short-term mindset, which could result in the neglect of sustainable, forward-looking management.
3 Even for companies whose shares are not listed on a stock exchange, the term of office begins upon acceptance of the election. In contrast to listed companies, however, the term of office prescribed by law is three years. This period may be modified by the articles of incorporation, provided that the term of office does not exceed six years.
4 Once accepted, the term of office generally runs from one General Meeting (GM) to the next. It begins on the date of the GM that conducted the election and ends with the conclusion of the annual General Meeting following the end of the fiscal year for which the election was held. This allows the incumbent Board of Directors to still convene the General Meeting. However, this link to the General Meeting applies only as long as the General Meeting takes place within the time limit specified in Art. 699(2) of the Swiss Code of Obligations (OR); otherwise, N. 5 applies.
5 If, regardless of the reasons, a Board member is neither voted out nor re-elected and continues to perform his or her duties, this does not constitute a tacit extension of his or her term of office. Such an extension is precluded. In these cases, the term of office of the Board member ends at the end of the sixth month following the close of the relevant fiscal year. Anyone who nevertheless continues to perform their duties does not thereby become a formal governing body again; depending on their actual activities, they may be classified as a de facto governing body, although, according to case law, this primarily constitutes a basis for liability and not a basis for governing body powers.
6 If a member of the board of directors is unable to serve and this jeopardizes the company’s quorum or results in its loss, the remaining members of the board must convene an extraordinary general meeting to hold by-elections. If the sole member of the Board of Directors or the entire Board resigns without giving the company an opportunity to seek a new Board of Directors, the resigning Board of Directors commits a breach of its duty of care and loyalty under Art. 717 of the Swiss Code of Obligations (OR).
C. Election Provisions
7 For publicly traded companies, all members of the Board of Directors must be elected individually pursuant to Art. 710(1) of the Swiss Code of Obligations (CO). This provision enhances the transparency and accountability of each member of the Board of Directors. Shareholders can more effectively assess the individual performance of each member and thus make better-informed decisions regarding the composition of the board. This can promote responsible and performance-oriented corporate governance. With regard to the composition or selection of individual board members, the legislature has refrained from establishing more detailed regulations beyond those set forth in Art. 707 of the Swiss Code of Obligations (OR). This allows the diverse range of stock corporations to determine the qualification requirements for board membership themselves, thereby meeting their own specific needs.
8 For companies whose shares are not listed on a stock exchange, Art. 710(2) of the Swiss Code of Obligations (CO) requires the individual election of board members. However, this provision may be modified by the articles of incorporation or by the chairperson of the general meeting with the consent of all represented shareholders. The requirements for the composition and selection of board members are, in principle, identical to those of publicly traded companies.
9 In selecting individual members, there are generally no statutory requirements regarding professional qualifications, independence, residence, nationality, or shareholder status. It is, however, required that the company be represented by a person residing in Switzerland; this person need not be a member of the Board of Directors. Statutory requirements such as age limits, limits on the number of concurrent positions, minimum professional qualifications, or shareholder status remain permissible, provided they are objectively justified and, in particular, comply with the principle of equal treatment. In practice, it is advisable to establish a requirements profile for the Board as a whole and, for new elections, an individual competency profile; Key factors include, in particular, professional and industry expertise, entrepreneurial experience, availability, integrity, and the ability to work in a team.
10 The Board of Directors must consist of at least one natural person with full legal capacity. A legal entity cannot be a member of the Board of Directors; at most, it may propose or appoint a natural person. In addition, there is an incompatibility rule with respect to the auditor: A member of the board of directors may not simultaneously serve as an auditor. If there are classes of shares with different voting or property rights, the articles of incorporation must ensure that shareholders of each class may elect at least one representative to the board of directors; additional provisions to protect minority shareholders remain possible.
D. Re-election
11 A re-election of board members is not only possible but also the norm. The articles of incorporation of an unlisted company may provide for supplementary provisions in this regard. For example, age limits, staggered elections, or the periodic complete renewal of the Board of Directors may be provided for. However, it is not in compliance with the law to stipulate in the articles of incorporation an automatic reelection in the event of a deadlock among shareholders. This would be incompatible with the General Meeting’s inalienable right to elect the Board of Directors. Consequently, such a provision in the articles of incorporation is void. In general, according to the Federal Supreme Court, the continuation of a Board of Directors’ term of office must be based on an explicit expression of intent by the General Meeting. In BGE 148 III 69, the Federal Supreme Court ruled on the same grounds that even a tacit reelection cannot take place, even if the reelection was merely “overlooked.” In such cases, the Board of Directors’ term ends at the end of the sixth month following the close of the relevant fiscal year.
12 In BGE 148 III 69, the Federal Supreme Court rejected the portion of legal doctrine that assumed, in the event of a forgotten reelection or a failure to hold a General Meeting, that the term would continue until the next General Meeting at which the election was on the agenda; it countered the majority of proponents of this view by noting that they based their arguments primarily on references to other authors or on a decision by the former Zurich Court of Cassation. However, it addressed the substance of the only objections that were independently substantiated and rejected them. The Federal Supreme Court later upheld this strict line of reasoning to the extent that resolutions of a general meeting convened by a board of directors that had not been re-elected in a timely manner are null and void; a legally valid convening is considered a fundamental prerequisite for a general meeting in the legal sense. This is without prejudice to the universal meeting under Art. 701 of the Swiss Code of Obligations (OR), which does not require a formal convening. Neither a multi-year entry in the Commercial Register nor de facto recognition in correspondence can substitute for the lack of an election. It has not been expressly decided as to which point in time should be used to determine timeliness; the Federal Supreme Court examined the status of the governing body at the time of the convening. According to the view expressed here, the convening must take place before the expiration of the relevant six-month period, while the meeting itself may be held thereafter.
13 In a later ruling, the Federal Supreme Court held that, in cases not involving automatic or tacit reelection, the exact term of office must be determined primarily on the basis of the articles of incorporation and the specific election resolution. The articles of incorporation of large companies tend to be interpreted more like laws, while those of smaller companies tend to be interpreted more like contracts; for companies with very few shareholders, a subjective interpretation may be considered.
14 In practice, this means that provisions in the articles of incorporation regarding the term of office and election resolutions must be formulated as precisely and consistently as possible. In particular, ambiguous wording such as “for one year” or “until the next annual general meeting” remains open to interpretation. In Federal Supreme Court case 4A_508/2023, the members of the board of directors had been elected at the annual general meeting on November 5, 2021, for a term “of one year until the next annual general meeting.” The lower court allowed the term to run until no later than November 5, 2022, or until the annual general meeting actually held on September 20, 2022, at which the board of directors was reelected. The Federal Supreme Court upheld this ruling but reviewed the subjectively interpreted articles of association of a two-person company only for arbitrariness; it noted that the articles of association did not specify the term of office in months and that the deadline set forth in Art. 699(2) of the Swiss Code of Obligations (CO) was merely a procedural deadline, which is why the articles of association did not deviate from Art. 710(1) CO. The decision therefore does not set a precedent for a specific treatment of ambiguous wording; legal uncertainty remains. This interpretation, in turn, stands in a certain tension with the function of the deadline as the end date of the term of office pursuant to BGE 148 III 69.
15 An extract from the commercial register is therefore insufficient for determining whether members of the Board of Directors were properly (re-)elected. The Commercial Register entry cannot remedy a term of office that has substantively expired. However, it remains significant in dealings with third parties because third parties acting in good faith may, in principle, rely on the published status of representation; this reliance ceases, however, if the third party has positive knowledge that the term of office of the registered members has ended (Art. 936b(3) CO). This protection of good faith does not remedy defects under corporate law.
16 If defects in the election process or gaps in information are identified during corporate due diligence, it is not only necessary to consider a by-election or the rectification of the organizational defect. Rather, it is also necessary to analyze which resolutions and legal acts were undertaken after the term of office had expired. Contractual representations may allocate information and liability risks, but they do not remedy the organizational defect as such; depending on the severity, prior remedial measures, closing deliverables, or conditions precedent must therefore be provided for.
E. Term of Office of the Chair and Committees
17 Art. 710 of the Swiss Code of Obligations (OR) governs the term of office of members of the board of directors. The election of the chair is governed by Art. 712 OR, the formation of committees by Art. 716a(2) OR, and, for the compensation committee of publicly traded companies, by Art. 733 OR. The only relevant aspect of these roles is that their duration is ancillary to the term of office on the Board of Directors: they require a continuing term of office and cannot outlast it. In publicly traded companies, the General Meeting elects the Chairman; in non-publicly traded companies, the Board of Directors generally elects the Chairman, although the articles of incorporation may provide for election by the General Meeting. The term of office as chairperson may not exceed that of a member of the board of directors. If the board of directors consists of multiple members, the position of chairperson must be entered in the Commercial Register. A vice chairperson is not required by law but is practical, particularly in the event of the chairperson’s absence or conflicts of interest. If the board of directors consists of multiple members, the appointment of a chairperson is not optional. If the position remains vacant, this constitutes an organizational deficiency: primarily, the board of directors itself remedies this by making an appointment for the remaining term of office; in addition, the Commercial Register Office requires the company to hold a by-election.
18 The position of honorary chairperson is not regulated in Art. 710 CO. It is not a statutory organ status but rather an honorary title that, in and of itself, does not confer either the status of an organ or the power of representation. However, if an honorary president is actually involved in the decision-making process or has a significant influence on the decisions of the board of directors, he or she may be considered a de facto organ.
19 The board of directors may form committees or entrust individual members with the task of preparing and implementing its resolutions or supervising business matters. For ordinary committees, the articles of incorporation, organizational bylaws, or a constitutional resolution determine their composition, duties, and term of office; a committee member’s term cannot extend beyond the underlying Board of Directors mandate. In the case of publicly traded companies, however, the compensation committee is required by law; its members are elected individually by the general meeting.
II. Absence of the Board of Directors
20 If the deadline for reelection is missed, the incumbent Board members are no longer authorized to convene a general meeting; this applies even if the purpose of the meeting is solely to make up for the missed reelection. If they continue to perform functions typical of a governing body, they may be considered a de facto governing body in accordance with N 5. You should work to ensure that the organizational deficiency is validly remedied, for example, through a general meeting of all shareholders, a convening by the auditor, or judicial measures.
21 The expiration of the term of office also has procedural implications. The stock corporation acts through its governing bodies (Art. 54 Swiss Civil Code); if it lacks a Board of Directors, it lacks legal capacity to act and is therefore incapable of standing in court or of making legal representations. Consequently, it can neither validly authorize a legal representative nor initiate a lawsuit. Since capacity to sue is a prerequisite for litigation (Art. 59(2)(c) of the Swiss Code of Civil Procedure), a lawsuit filed nonetheless must be dismissed as inadmissible. The Horgen District Court addressed this issue in an order dated January 19, 2026: Since no general meeting had been held since early 2022, the term of office of the board of directors—set at one year by the articles of incorporation—expired no later than June 30, 2022; the company’s lawsuit, filed a good two years later, was dismissed. The financial consequences are of practical significance: The litigation costs were not imposed on the company but on the (former) board member personally, who had acted without authority to represent the company (Art. 108 ZPO), while the advance on costs paid by the company was refunded. In addition, the court notified the Commercial Registry Office of the organizational defect (see Art. 939 OR).
22 If all members of the board of directors have resigned or if the number falls below a minimum specified in the articles of incorporation, new elections must be held through an extraordinary general meeting. Possible options include, in particular, a general meeting of all shareholders, a resolution by circular resolution of the general meeting, a convening by the auditor—provided the auditor is validly in office—or judicial measures. It should be noted that the term of office of the auditor is defined differently and, according to Federal Supreme Court case law, does not end upon the expiration of the six-month period specified in Art. 699(2) CO. The Federal Supreme Court expressly rejects an analogous application of BGE 148 III 69 to the audit firm: Art. 730a(1) CO clearly regulates the end of the term of office, and unlike the board of directors, which is elected for a specific term, the audit firm is primarily elected to perform a specific task, namely the audit of the annual financial statements.
23 If the organizational defect is not remedied, the court may take the necessary measures upon the request of a shareholder or creditor. If the company lacks a board of directors, this constitutes a defect under Art. 731b(1)(1) of the Swiss Code of Obligations (OR); the possible measures are set forth in Art. 731b(1)bis of the OR. In addition to the options expressly mentioned in the law, other appropriate measures are also available, in particular the convening of a general meeting or the temporary reinstatement of the previous board of directors with the obligation to convene a general meeting and to place the election of the board of directors on the agenda. This is particularly warranted when there is no significant conflict of interest. For example, in its judgment HE250034 of July 11, 2025, the Zurich Commercial Court reinstated the sole remaining member of the board of directors for four months, limited to convening and holding an extraordinary general meeting to elect the board of directors and to register the elected member.
24 With regard to the Commercial Register, Article 939 of the Swiss Code of Obligations (OR) must also be taken into account. If the Commercial Register Office identifies an organizational defect, it requires the company to remedy it within a specified period and, if the defect is not remedied, refers the matter to the court to order measures pursuant to CO § 939(2). However, if the expiration of the term of office is asserted by a third party and contested by the company, this approach generally does not achieve the desired result. The request procedure under Art. 939(1) of the Swiss Code of Obligations (OR) is a one-party proceeding between the Commercial Register Office and the legal entity; the Office lacks the procedural means for an adversarial proceeding. Therefore, any shareholder or creditor who reports that no general meetings have taken place does not acquire party status, has no right to inspect the case file, and cannot respond to the company’s statement. Furthermore, if the company submits minutes that comply with the requirements of Art. 702 of the Swiss Code of Obligations (OR), the Commercial Registry Office is bound by official secrecy and cannot disclose the evidence to the complainant; the proceeding ends without result. Shareholders and creditors are therefore better advised to file a petition under Art. 731b OR directly with the court, where they will be granted party status, access to the case file, and the opportunity to reply.
III. Removal of a Board Member
25 In addition to the expiration of the term of office, a board member’s mandate may also be terminated by removal or resignation.
A. Dismissal
26 The general meeting may, by way of dismissal, effect the premature termination of a Board of Directors’ term of office at any time. Dismissal is a unilateral declaration of intent by the general meeting requiring acknowledgment of receipt and is based on a formally valid resolution that requires no justification. However, in the case of dismissal, the exact timing and wording of the agenda item must be taken into account.
27 Like any other item on the agenda of a general meeting, the removal must be clearly and understandably stated on the agenda. The necessary clarity for the removal of a Board member during his or her current term of office is not provided by the agenda item “Elections,” especially since the frequent discussion of this topic in legal scholarship alone suggests that the necessary clarity is apparently lacking due to this choice of wording. A premature removal from office is exceptional and thus differs from a simple “non-reelection.” One might object, however, that the Federal Supreme Court interprets agenda items rather broadly and focuses on the announced agenda item as a whole, and that, within the framework of duly announced agenda items pursuant to Art. 700(4) of the Swiss Code of Obligations (OR), motions may be submitted without prior notice. However, premature removal from office is of a different nature than mere non-reelection. In the opinion expressed here, the agenda item “Elections” should not be expected to encompass a vote on the exact opposite—namely, the premature removal of a sitting board member.
B. Resignation
28 In principle, a Board member may also terminate their term of office at any time by resigning (declaration of resignation). However, if this occurs at an inopportune time, the corporation may assert claims for damages. Resignation is also a unilateral declaration of intent requiring acknowledgment of receipt. It must be addressed to the Chair of the Board of Directors or the Vice Chair. If neither of these positions exists, or if all members of the Board of Directors resign, the resignation must be addressed to the General Meeting.
C. Other Possibilities
29 Furthermore, the death of a Board member, the Board member’s permanent incapacity to act, and the dissolution of the corporation also result in the termination of the Board mandate. The articles of incorporation may also provide that the Board mandate expires upon the cessation of certain conditions. In such cases, not only must the sanction be objectively justified, but the principle of equal treatment must also be observed.
D. Effective Date of Resignation
30 Internally, a dismissal or resignation takes effect upon receipt of the declaration of intent by the affected party or the company.
31 Externally, with respect to uninformed shareholders, the resignation takes effect only upon publication of the removal in the Commercial Register. The legal entity is generally responsible for filing this removal and should do so without delay. In addition to the legal entity, however, the departing board member may also file the deletion with the Commercial Register.
32 Until this publication, board member liability toward third parties and shareholders acting in good faith continues. As a rule, however, the negligence required for liability does not exist if the departing board member no longer exercises any influence over the course of business. However, since the resigned member is also entitled to file the cancellation with the Commercial Register, situations may arise in which fault can nevertheless be established. Specifically, if the resigned member of the board of directors knows that the registration remains in effect and nevertheless fails to file the cancellation themselves. Resigned members are therefore well advised to file the cancellation themselves.
IV. Legal Relationship Between the Board of Directors and the Corporation
A. Establishment
33 The legal relationship between a member of the board of directors and the corporation is established upon the elected individual’s acceptance of the appointment, although the individual is not obligated to accept. Furthermore, following acceptance, the appointment must be registered with the Commercial Register. Although this registration is merely declaratory in nature, it has legal effects with regard to the good faith of third parties.
34 Registration in the Commercial Register is merely declaratory for the creation of the board of directors’ mandate, but it is significant in external relations. It protects the good faith of third parties regarding the registered position as a corporate officer and the authority to represent the company. Conversely, even unregistered but validly elected board members are subject to the same rights and obligations; anyone who, without having been elected or registered, permanently and independently performs management functions typical of a corporate officer may be held liable as a de facto corporate officer.
35 In practice, it is advisable to conduct a preliminary review of the company before accepting the mandate. In particular, the following should be examined: the composition of the board of directors and executive management, strategy, financial position, audit, organizational and governance structure, risks, risk management, and compliance. In the case of fiduciary mandates or letters of confirmation of appointment, provisions should be made regarding compensation, reimbursement of expenses, rights to information, the start and end of the mandate, as well as liability and indemnification issues; the fiduciary duty owed to the company under stock corporation law remains paramount.
B. Legal Nature
36 The content of the Board of Directors’ mandate is determined in specific instances by applicable corporate law. However, this does not cover all aspects, which creates opportunities for contractual structuring. For issues left open by stock corporation law, the contract may be supplemented with components from both service contracts and employment contracts.
37 If the board member is involved in operational activities and there are no specific provisions under stock corporation law, labor law provisions apply primarily, with contract law provisions applying subsidiarily. If, on the other hand, the board member is not involved in operational activities, contract law is primarily applicable in the absence of provisions under stock corporation law.
C. Remuneration
38 Remuneration for publicly traded corporations is provided for by law in Art. 626(2)(2), Art. 698(3)(4), and Art. 732 et seq. of the Swiss Code of Obligations (OR). The law does not contain any express provision regarding the compensation for board membership in unlisted stock corporations; however, such a provision is presumed to exist.
39 In the absence of an agreement, the amount of compensation is determined by the company’s financial situation and the activities of the board members. Compensation may be provided in the form of profit-sharing, a fixed salary, or meeting fees.
40 In the case of unlisted companies, the authority to decide on board compensation generally lies with the board of directors in the absence of a provision to the contrary; the articles of incorporation or a compensation policy may provide for a different arrangement. In determining the amount, particular consideration must be given to the size and financial situation of the company, the role and workload of the individual member, committee membership, and the risk assumed.
41 The legal limit is set forth in particular in Art. 678 of the Swiss Code of Obligations (OR): payments to members of the board of directors or persons closely related to them must be reimbursed to the extent that they are manifestly disproportionate to the consideration provided and to the company’s financial situation.
42 Profit-sharing payments also require sufficient profit distribution and have, in practice, been largely replaced by fixed fees or attendance fees. For publicly traded companies, the special rules regarding the compensation report, voting, and impermissible forms of compensation must also be observed.
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Case Law Index
BGE 148 III 69
BGE 140 III 349
BGE 130 III 213
BGE 121 III 420
BGE 105 II 130
BGE 105 II 114
BGer 4A_508/2023 vom 09.07.2024
BGer 4A_387/2023, 4A_429/2023 vom 02.05.2024
HGer ZH HE250034 vom 11.07.2025
BezGer Horgen CG240021 vom 19.01.2026