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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
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- 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. Resolution of the shareholders' meeting and resolutions
- III. Action for Rescission
- IV. Action for annulment
- V. Differentiation and relationship to other corporate actions
- VI. Procedural matters
- VII. Reversal of the decisions
- VIII. Contestability and nullity in connection with the Covid-19 pandemic
- Bibliography and Materials
I. Introduction
1 Art. 808c CO refers to the provisions of company law for the contestation of resolutions of the shareholders' meeting of a limited liability company. Contrary to the narrow wording, the reference in Art. 808c CO includes not only the provisions of company law on avoidance but also those on nullity. Art. 808c CO refers to Art. 689f, Art. 691 para. 3, Art. 706-706b and Art. 731 para. 3 CO. For reasons of readability, "Art. 808c in conjunction with" is not added before these standards in this commentary. has been added.
The resolutions of the management cannot be contested. It is possible that their resolutions are null and void. With regard to the nullity of management resolutions, Art. 816 CO - like its counterpart under company law (Art. 714 CO) - refers to Art. 706b CO.
2 The provisions of company law apply "accordingly". The special features of the legal form of the GmbH must be taken into account. Insofar as these special features do not result in any deviations, the doctrine and case law of the provisions of stock corporation law can generally be taken into account. This commentary uses the literature and case law on stock corporation law without indicating that it is not literature or case law on the GmbH.
3 There was a controversy in the doctrine as to whether the references to the provisions of stock corporation law in the law governing limited liability companies are of a static or dynamic nature. In the materials of the partial revision of the law on limited liability companies, which came into force on January 1, 2008, the legislator clarified that these are dynamic references. In the course of the revision of company law, the legislator reaffirmed the dynamic references. This means that the current provisions of company law are applicable in each case.
4 Although the action for avoidance and the action for annulment differ in terms of their legal structure (see n. 83 f. and n. 130 below), in practice both actions aim to secure in court that a resolution of the shareholders' meeting is not implemented or is not (no longer) applicable. Before the action for rescission and the action for annulment are discussed, a chapter first explains the resolution of the shareholders' meeting and its consequences (see N. 5 et seq. below). This is followed by the chapters on the action for avoidance (n. 19 et seq. below) and the action for annulment (n. 99 et seq. below). Subsequently, a chapter discusses the relationship between actions for avoidance and actions for annulment and other actions under corporate law (n. 136 et seq. below). The procedural aspects are explained below in N. 143 et seq. Finally, smaller chapters on the reversal of the resolutions (below n. 200 et seq.) and the Covid-19 pandemic (below n. 205) follow.
II. Resolution of the shareholders' meeting and resolutions
A. Concept of resolution and terminology in connection with resolutions
5 According to some scholars, resolutions are sui generis legal transactions and according to another view, they are multilateral legal transactions. Since a resolution generally requires more than one declaration of intent, it is considered a multilateral legal transaction according to the view expressed here. If the shareholders' meeting consists of only one person, it is also referred to as a resolution.
6 The resolution comes into effect when the chairman or chairwoman announces it at the shareholders' meeting. In my opinion, the announcement of the voting result is constitutive for reasons of legal certainty. The voting process only needs to be taken into account if no announcement is made. Pursuant to Art. 805 para. 5 no. 5 in conjunction with Art. 701 para. 3 CO. Art. 701 para. 3 CO, resolutions can be passed in writing unless a shareholder requests an oral discussion (so-called ballot vote). In the case of a ballot vote, the chairman or chairwoman must pass a formal resolution after receiving the votes of the shareholders.
7 Various terms are used inconsistently in connection with resolutions of the shareholders' meeting. At this point, some of these terms, which are also used in the further course of the commentary, are briefly presented as pairs of opposites.
The terms "sham resolution" and "non-resolution" are not discussed in detail (see also n. 100 below).
1. Contestable vs. null and void
8 A resolution of the shareholders' meeting is void if there are serious defects (see Art. 706b CO; see below N. 106 et seq.). The other defects lead to the resolution being voidable and must be asserted within two months of the meeting by means of an action for rescission (see Art. 706a para. 1 CO; n. 85 et seq. below). In contrast, mere administrative offenses are legally irrelevant. This includes, for example, compliance with the six-month deadline for holding the ordinary shareholders' meeting pursuant to Art. 805 para. 2 CO.
9 In connection with the legal validity of resolutions, Dubs deals with the concept of prerequisites for resolutions. Genuine resolution requirements are content-related factual elements that form the prerequisites for the legal validity of a resolution. While the qualified genuine prerequisites for a resolution must already exist at the time the resolution is passed, simple genuine prerequisites for a resolution can only occur after the resolution has been passed. In contrast, the non-genuine prerequisites for a resolution are not part of the legal facts of the resolution and therefore have no effect on the legal validity of the resolution. According to Dubs, the genuine prerequisites for a resolution are a question of existence prior to contestation and nullity. If a genuine resolution requirement is not met, there is no resolution at all. The legal consequences of a breach of non-genuine resolution requirements must be determined on a case-by-case basis according to the nature of the breached standard. This may involve contestability.
According to the view expressed here, an upstream question of existence is not necessary. The absence of genuine prerequisites for a resolution can be directly attributed to nullity. In the event of a breach of non-genuine prerequisites for a resolution, contestability may be given, depending on the standard breached.
2. Valifffd vs. Invalid
10 The resolution that can serve as the object of a challenge must be valid at the outset. Only when the resolution is annulled as a result of an approved action for annulment is there a retroactive change from a valid to an invalid resolution (see n. 96 below).
11 A void resolution is invalid ab initio. For this reason, no action for annulment is required. The invalidity must be asserted by means of an action for declaratory judgment or by way of objection (see N. 99 et seq. below). The invalidity of a resolution must be observed ex officio.
12 In contrast to an invalid resolution, a valid resolution must be observed by the company. This means that the management must in principle implement the resolution passed (see Art. 810 para. 1 no. 6 CO; also n. 179 and n. 203 below).
13 The Commercial Register Office must take the nullity into account ex officio as part of its cognizance. Accordingly, a clearly null and void resolution is not to be registered. However, the other resolutions (including contestable resolutions) must be entered - subject to a court block on the commercial register (see n. 188 et seq. below).
3. Defective vs. free of defects
14 A resolution is defective if it violates the law and/or the articles of association (see Art. 706 para. 1 CO). Defect-free resolutions are (at least initially) valid (but see n. 160 f. below). Defective resolutions can be either valid or invalid. If a defective resolution is valid at the beginning, it is contestable. In all other cases, the resolution is void.
15 A distinction can be made between formal and material defects. Formal defects (procedural defects) relate to errors in the procedure for adopting the resolution (regarding contestability, see n. 47 et seq. below; regarding nullity, see n. 109 et seq. below). Material defects (defects in content) exist if the content of the resolution violates the law and/or the articles of association (regarding contestability, see N. 77 et seq. below; regarding nullity, see N. 122 et seq. below).
4. Pending vs. final
16 Void resolutions are already definitively invalid from the outset. Invalidity is always final because an invalid resolution cannot become valid. Contestable resolutions are pendingly valid. The resolution only becomes definitively invalid once the action for annulment has been (formally legally) approved (see n. 10 above). Prior to this, there is a state of suspension. This lasts for at least two months (see Art. 706a para. 1 CO) and is extended when an action for avoidance is raised. Within this state of suspension, the resolution of the shareholders' meeting is resolutively conditionally valid. The approving rescission judgment constitutes the resolutive condition. If the two-month contestation period expires unused, any defect is remedied and the resolution becomes finally valid.
B. Resolutions
17 The resolution of the shareholders' meeting constitutes the legal basis (causa) for the subsequent resolutions. The resolutions are of particular importance for the shareholders. An action under company law in connection with a resolution of the shareholders' meeting generally has the actual aim of preventing certain resolutions from being passed. For example, the increase in the share capital or the participation of an elected managing director in the management of the GmbH in question should be prevented.
18 If the resolution of the shareholders' meeting is void, there is no legal basis for the corresponding resolutions ab initio. Contestable resolutions initially form the legal basis for the consequences of the resolutions. However, if the action for annulment is upheld, the resolution lapses with effect ex tunc (see n. 96 below). Thus, from the outset, there was no valid legal basis for the corresponding resolutions (on the reversal of the resolutions, see n. 200 et seq. below).
III. Action for Rescission
A. Active legitimation
19 Every shareholder and every partner (N. 20 et seq.) and the management in corpore (N. 28 et seq. below) has the right to bring an action. The auditors do not have the right to take action. It is not possible to restrict or extend the circle of persons with the right to act in accordance with the articles of association. Third parties such as creditors therefore have no right of challenge even if they have a corresponding interest.
1. Shareholders
20 In principle, every shareholder has the right to challenge a resolution of the shareholders' meeting. Shareholders who were not present at the shareholders' meeting or who merely abstained from voting on the resolution also have the right to challenge the resolution. An exception to this principle is made for shareholders who have approved the resolution. In the sense of a counter-exception, these shareholders also have the option of filing an action for rescission if they are subject to a lack of will. The time limit for asserting this claim is not the one-year period from knowledge of the lack of will pursuant to Art. 31 para. 1 CO, but the forfeiture period under company law of two months from the date of the resolution (Art. 706a para. 1 CO; on the time limit, see n. 85 et seq. below).
21 In order to assess the shareholder status, the transfer of the ordinary share in the correct form (Art. 785 CO) and, if necessary in the company concerned, the recognition of the acquirer by the shareholders' meeting (cf. Art. 786 CO) are important, which may arise as preliminary questions in the avoidance proceedings. In contrast, the entry in the share register and in the commercial register are only of declaratory significance.
22 Active legitimacy must exist at the time the action is filed and at the time of the judgment. New shareholders joining the company in the event of a capital increase cannot challenge the capital increase resolution. However, they may challenge subsequent resolutions on which they are entitled to vote.
23 After the sale of the ordinary shares, the acquirer is entitled to bring an action for rescission or to continue the proceedings (Art. 83 para. 1 CPC). As an intervening party, the acquirer is liable for all legal costs (Art. 83 para. 2 CPC). If the approval of the shareholders' meeting is required, the assignment of the ordinary shares only becomes legally effective with the approval of the shareholders' meeting (Art. 787 para. 1 CO). In my opinion, the right of avoidance is not one of the rights associated with the right to vote within the meaning of Art. 788 para. 2 CO. For this reason, in the case of special types of acquisition (inheritance, division of an estate, matrimonial property law, compulsory execution, acquisition of ordinary shares by the acquiring company in the event of a merger and other circumstances under the Merger Act), the right of avoidance is transferred to the acquirer without the consent of the shareholders' meeting (Art. 788 para. 1 CO). This is particularly important because otherwise the (negative) resolution of the shareholders' meeting regarding recognition as a member with voting rights could not be contested by the acquirer, which would lead to an unjustified gap in legal protection.
24 If several persons are entitled to an ordinary share (cf. Art. 792 CO), they form a necessary joint venture for the purpose of contesting the resolution (cf. Art. 70 CPC). It is also possible to initiate an action for avoidance through a jointly appointed representative (see Art. 792 para. 1 CO). On the other hand, it is not possible to include the other jointly entitled parties as defendants. At most, an exception could be granted in cases of urgency. In this case, the other entitled parties would have to subsequently consent to the action for avoidance and join the proceedings.
Parties with independent rights of action can conduct the avoidance proceedings as simple joint litigants (see Art. 71 CPC).
25 In the case of usufruct of an ordinary share, the usufructuary is entitled to voting rights and the associated rights (Art. 806b para. 1 CO). It is disputed to what extent usufruct has an effect on the entitlement to assets. Some scholars do not grant usufructuaries a right of avoidance. As the interests of the shareholder and the usufructuary do not always coincide, other doctrinal voices believe that both have the right to bring an action.
26 According to some doctrine, the holders of profit participation certificates (Art. 774a in conjunction with Art. 657 CO) are only entitled to challenge the company if this is granted to them in the articles of association. According to another view, holders of profit participation certificates are also entitled to take legal action if they are affected by the resolution as shareholders in the company. Since holders of profit participation certificates should not be denied legal protection either, the latter view must be accepted.
27 Pledgees of pledged ordinary shares are not entitled to take legal action (see Art. 905 para. 2 CC).
2. Management
28 As an executive body, the management also has the right to take legal action. Accordingly, individual managing directors who are not shareholders cannot sue personally. Although the management is not mentioned in Art. 691 para. 3 CO, it also has the right to sue in these cases. A corresponding resolution of the managing directors is required to file an action. As long as there is only one managing director, he or she alone decides on the filing of an action. Unless otherwise stipulated in the articles of association, the managing directors decide by a majority of the votes cast (Art. 809 para. 4 CO). This resolution cannot be subject to the reservation of approval within the meaning of Art. 811 CO, because otherwise the same majority that obtained the resolution of the shareholders' meeting to be challenged could thwart the challenge of this very resolution. A reservation of approval would also make it more difficult to file an action within the deadline (see n. 85 et seq. below for the deadline).
29 In principle, the management can leave it to the losing shareholders to challenge the resolution of the shareholders' meeting. If a resolution of the shareholders' meeting thwarts the functioning or the performance of core duties by the management or seriously violates public law or criminal law, a duty to contest may be derived from Art. 810 para. 2 no. 6 and Art. 812 para. 1 CO.
30 The shareholders' meeting can dismiss managing directors it has elected at any time (Art. 805 para. 1 CO). The majority at the shareholders' meeting can therefore dismiss the managing directors and elect managing directors who withdraw an action for avoidance. For this reason, shareholders must consider whether they do not wish to bring an action themselves - with the corresponding risk.
3. Interest in avoidance
31 The action for avoidance requires an interest worthy of protection (Art. 59 para. 2 lit. a CPC). The specific form of this interest in avoidance is controversial. In an officially published decision, the Federal Supreme Court considered that - subject to the prohibition of abuse of rights - the intention to safeguard the interests of the company is sufficient. It is also necessary that the legal position of the contesting shareholder is affected by an approving judgment. In unpublished case law, the Federal Supreme Court went even further and demanded that the legal position of the contesting shareholder be effectively changed ("effectivement modifié") by an approving judgment and that this judgment benefits him personally ("doit lui être utile"). A later officially published Federal Supreme Court decision only states the principle that the approval of the action for annulment must have a positive effect on the legal situation of the plaintiff. This decision also states that the assessment of the interest in legal protection must be based on the assumption that the facts of the case and the legal opinion of the plaintiff are correct. The prevailing doctrine, on the other hand, is more generous and affirms the interest in contesting the decision if the action is brought to protect the interests of the company.
The correctness of the resolutions of the shareholders' meeting is in the interests of the company. If the management raises the action for avoidance (see n. 28 et seq. above), it is also protecting the interests of third parties. Every shareholder should therefore also have the opportunity to challenge a resolution of the shareholders' meeting regardless of whether their legal position is affected or not. Otherwise, it may be impossible for a shareholder to enforce a resolution that complies with the law and the articles of association.
32 The interest in legal protection generally lapses retrospectively if the company passes the resolution with the same content a second time because the first resolution suffered from a formal defect. As a rule, the resolution only takes effect from the second resolution (ex nunc effect). An action for rescission with effect ex tunc is still possible within the two-month contestation period (see N. 85 below). This requires an interest worthy of protection in the annulment of the decision with effect ex tunc.
33 There is no interest in rescission if the action for rescission is abused. This is the case if the plaintiff's or claimant's sole aim is to damage the company or if he or she wishes to have the right of avoidance bought off.
34 For the causality requirement as part of the interest worthy of protection: see n. 48 f. below.
B. Passive legitimation
35 The company adopting the resolution (Art. 706 para. 1 CO: "against the company") is the party with passive legitimacy. As a rule, the company is represented by the management (see Art. 706a para. 2 CO; on representation in legal proceedings, see n. 153 et seq. below).
36 If the company has been deleted from the commercial register, it must be re-registered for the proceedings (see Art. 935 para. 2 no. 2 CO). Parallel to the re-registration proceedings, an action for avoidance must be filed in order to comply with the forfeiture period (see n. 85 et seq. below). The avoidance proceedings must be suspended in view of the outcome of the re-registration proceedings (see Art. 126 para. 1 CPC).
37 If the company is declared bankrupt, Art. 207 SchKG applies to the avoidance proceedings. Accordingly, with the exception of urgent cases, civil proceedings in which the debtor is a party and which affect the bankruptcy estate are discontinued (Art. 207 para. 1 SchKG). A discontinuation is therefore conceivable if the company's assets are affected (e.g. if a dividend resolution is annulled). It is also conceivable that, as a rule, there is no longer any interest in contesting the annulment of the resolution due to the lack of continuation of the company (generally on the interest in contesting the resolution, see n. 31 et seq. above).
C. Object of the avoidance
38 Only resolutions of the shareholders' meeting can be considered as objects of avoidance. Both a positive resolution (acceptance of a motion) and a negative resolution (rejection of a motion) can be the subject of an action for avoidance. As a rule, there is only an interest in challenging a negative resolution (n. 31 et seq. above) if the resolution becomes a positive resolution as a result of the approval of the action for annulment (see n. 71 et seq. and n. 95 below regarding the action for positive determination of a resolution). In contrast, the resolutions of the management can only be null and void (Art. 816 in conjunction with Art. 706b CO) and an action for rescission is excluded. Even if the resolution has been declared incontestable by the shareholders' meeting, this does not preclude an action for rescission.
39 Unless otherwise stipulated in the articles of association, the shareholders exercise the management of the company jointly (Art. 809 para. 1 CO). If the concept of self-organization provided for by law is retained, it may be unclear in which function the shareholders have acted. Whether the shareholders are acting as a shareholders' meeting or as management is important, for example, when it comes to casting votes and the question of whether the corresponding resolution can be contested at all (n. 1 above). The shareholders' meeting passes almost ordinary resolutions with an absolute majority of the votes represented, unless a different legal or statutory provision exists (see Art. 808 and Art. 808b CO). Voting rights are normally based on the nominal value of a shareholder's ordinary shares (Art. 806 para. 1 CO). However, unless otherwise stipulated in the articles of association, the management decides by a majority of the votes cast (Art. 809 para. 4 CO).
40 A resolution of the shareholders' meeting exists if the resolution falls within the scope of the non-transferable powers of the shareholders' meeting within the meaning of Art. 804 para. 2 CO. According to Art. 810 para. 1 CO, the managing directors are responsible for all resolutions that are not assigned to the shareholders' meeting by law or the articles of association. In this context, it is also important whether the shareholders are aware that they are passing a resolution as a shareholders' meeting. In the case of a universal meeting, the shareholders must expressly or tacitly agree to the holding of a shareholders' meeting.
D. Grounds for contestation
41 In the sense of a general clause, Art. 706 para. 1 CO states that the resolution can be contested in the event of a breach of the law or the articles of association. The law primarily includes company law. This also includes unwritten rules such as the principle of the careful exercise of rights and the principle of proportionality.
42 In Art. 706 para. 2 CO, the legislator explicitly lists a number of facts. This list is not exhaustive. Art. 706 para. 2 no. 1 CO (withdrawal or restriction of shareholders' rights due to violation of the law or articles of association) is already contained in the general clause and therefore has no independent significance. The other clauses in Art. 706 para. 2 CO codify principles that also apply in the GmbH and thereby specify Art. 706 para. 1 CO.
43 A resolution of the shareholders' meeting that contradicts provisions of the articles of association is contestable - provided that the corresponding causality exists in the case of formal grounds for contestation (see n. 48 f. below) - if this resolution does not itself relate to an amendment of the provision of the articles of association. An example of such a resolution is the election of a managing director who does not fulfill a clearly formulated statutory eligibility requirement.
Resolutions that violate the company's regulations can also be contested. According to Schott, this does not include regulations or rules of procedure relating to the preparation and conduct of the shareholders' meeting.
A breach of observance (customary law within the association) can also lead to contestability.
A resolution to introduce a provision in the articles of association that could potentially be misinterpreted (virtual violation of the articles of association) cannot be challenged.
44 The action for avoidance does not serve to assess the discretion of the majority of shareholders. The appropriateness or expediency of a resolution of the shareholders' meeting cannot be judicially reviewed by means of an action for avoidance.
45 If a resolution of the shareholders' meeting disregards provisions of a shareholders' agreement - such as voting commitments - this resolution cannot be challenged due to the purely contractual effect of the shareholders' agreement.
46 The following section is dedicated to the formal grounds for avoidance (N. 47 et seq.) and one section to the substantive grounds for avoidance (N. 77 et seq.).
1. Formal grounds for avoidance (procedural defects)
47 Formal grounds for avoidance exist in the event of defects in the resolution procedure. A formal ground for avoidance may arise from a violation of the law and/or the articles of association (Art. 706 para. 1 CO). Art. 706 para. 2 CO does not mention formal defects.
48 When contesting formal defects, the requirement of causality must be observed. The Federal Supreme Court requires that a formal defect must also have affected the adoption of the resolution. The causality requirement can be derived from Art. 691 para. 3 CO, which also applies to limited liability companies (see N. 1 above). As a subset of the action for avoidance, Art. 691 para. 3 CO provides that a resolution can be contested if unauthorized persons participate (negative action for voting rights), unless the company proves that this participation had no influence. It is recognized that such an action is also possible if an authorized person was wrongfully excluded from the shareholders' meeting (positive action for voting rights). The burden of proof regarding the lack of causality lies with the defendant company in accordance with Art. 691 para. 3 CO. According to the prevailing view, the causality requirement is part of the interest worthy of protection (on the interest in rescission, see n. 31 et seq. above).
49 The scope of application or the specific application of the causality requirement is disputed. In the case of an incorrect resolution (e.g. by applying an incorrect quorum or incorrect counting of votes), the actual causality of the result applies. The resolution of the shareholders' meeting can only be contested if the result of the resolution would have been different without the relevant defect. If there are defects that impair the decision-making of the shareholders (violation of participation, involvement and information rights), contestability should be affirmed if there is a connection between this defect and the voting behavior of an objectively judging shareholder (normative causality). Such an understanding of causality would not leave the minority shareholders at the mercy of the majority and at the same time prevent avoidance actions that merely allege defects of minor relevance. Schenker rejects the extension of the causality requirement to other procedural provisions. Schenker's radical view cannot be accepted. With the understanding of causality just described (coined by Schott), the minority shareholders can be sufficiently taken into account.
50 In connection with avoidance, the question of whether there is an obligation to give notice of defects to the detriment of the shareholder who is contesting, according to which he or she must give notice of the formal defects at the shareholders' meeting, is rarely discussed. In an action for avoidance under association law, the Federal Supreme Court held that, based on Art. 2 para. 2 of the Swiss Civil Code, the principle applies that formal defects must be notified before the resolution is passed, provided that they can be identified and rectified in good time, otherwise the right of avoidance is forfeited. At this point, the Federal Supreme Court referred to Riemer, who does not differentiate between the various corporate bodies under Swiss law with regard to the obligation to give notice of defects. The majority of the doctrine on stock corporation law that is relevant for the GmbH (see above N. 2) rejects such an obligation to give notice of defects - subject to abusive behavior. In the absence of a legal basis for an obligation to give notice of defects, this view is correct in my opinion.
51 The following are examples of formal deficiencies. It is not possible to address all formal defects in this commentary. In this regard, reference is made to the specialist literature and the commentaries on the respective breached standards.
The following description is based on three sections, which are oriented towards the chronological sequence (defects in the convening [N. 52 ff.], the conduct [N. 61 ff.] and the voting [N. 71 ff.] of the shareholders' meeting). Only in the case of defects in connection with the vote should the actual causality of the result be applied (cf. n. 49 above). In the case of defects in connection with the convening and conduct of the shareholders' meeting, normative causality applies according to the view expressed here (see n. 49 above).
a. Formal defects in the convening of the shareholders' meeting
52 The violation of formal requirements when convening the shareholders' meeting generally leads to the subsequent resolutions being voidable. These defects become irrelevant if the requirements for a universal meeting are met (see Art. 805 para. 5 no. 5 in conjunction with Art. 701 para. 1 and para. 2 CO).
53 The shareholders' meeting must be scheduled no later than twenty days before the date of the meeting, whereby a statutory shortening to ten days is possible (Art. 805 para. 3 CO). In my opinion, the unintentional minor non-compliance with this deadline only leads to contestability (regarding nullity below n. 114).
54 The items on the agenda must be specified in the notice convening the meeting (Art. 805 para. 5 no. 3 in conjunction with Art. 700 para. 2 no. 2 CO). Apart from certain exceptions, no resolutions can be passed on motions relating to agenda items that have not been duly announced (Art. 805 para. 5 no. 3 in conjunction with Art. 704b CO). Violation of this rule leads to contestability. The excessively narrow wording of an agenda item also leads to contestability, as this violates the shareholders' individual right to propose motions at the shareholders' meeting.
55 The motions of the management and the shareholders must also be included in the notice convening the meeting (Art. 805 para. 5 no. 4 in conjunction with Art. 700 para. 2 no. 3 and no. 4 CO). If an item for discussion is published in the notice convening the meeting without a corresponding motion, it is also contestable.
56 In principle, the determination of the place of the meeting must not make it unreasonably difficult for any shareholder to exercise his or her rights in connection with the shareholders' meeting (Art. 805 para. 5 no. 2bis in conjunction with Art. 701a para. 2 CO). As a rule, a breach of this provision is contestable. According to the view expressed here, normative causality is a prerequisite for this defect (cf. n. 49 above).
57 A challenge is also possible if the principle of unity of the subject matter is violated (Art. 805 para. 5 no. 2 in conjunction with Art. 700 para. 3 CO). This principle is violated if elements of different core resolutions are combined. This prevents shareholders from approving a proposal even though they only partially agree with it. This would be the case, for example, if several managing directors can only be elected at the same time, although one shareholder demands individual elections. According to Müller, in order to enforce the principle of unity of the subject matter, it is necessary for a shareholder to work towards compliance with the principle of unity of the subject matter at the meeting by requesting a separate vote. In the absence of a legal basis, there is, in my opinion, no reason to make an exception to the principle that there is no obligation to give notice of defects in the case of formal defects (cf. n. 50 above).
58 The management must send the annual report and, if there is no opting-out, the audit report to the shareholders at the latest together with the invitation to the ordinary shareholders' meeting (Art. 801a para. 1 CO). If this is done late, it is contestable. In serious cases, nullity is also conceivable.
59 If the shareholders' meeting is convened in the form prescribed by the articles of association, resolutions cannot be contested if a shareholder fails to take note of the notice of meeting through no fault of his or her own.
60 For nullity in the event of formal defects in the convening of the shareholders' meeting: see N. 109 et seq. below.
b. Formal defects in the conduct of the shareholders' meeting
61 Each shareholder has the right to submit motions within the scope of the items on the agenda (Art. 805 para. 5 no. 4 in conjunction with Art. 699b para. 5 CO). If the chairman or chairwoman passes over or does not allow a motion by a shareholder on an item on the agenda, this leads to the resolution of the shareholders' meeting under this agenda item being contestable.
62 The Articles of Association may stipulate attendance quorums for the shareholders' meeting. If such an attendance quorum is violated, in my opinion it is contestable because only a provision of the articles of association has been violated (see n. 43 above).
63 A resolution in which persons who are not authorized to participate in the shareholders' meeting have participated is contestable. Mere presence is not sufficient. What is required is that the unauthorized participant has influenced the meeting, for example by voting. The right of challenge within the meaning of Art. 691 para. 3 CO does not require an objection pursuant to Art. 691 para. 2 CO at the shareholders' meeting.
64 With regard to the representation of shareholders at the shareholders' meeting, the corresponding provisions of company law apply (Art. 805 para. 5 no. 8 CO). With regard to proxy voting, Art. 689f CO provides for contestability in two cases. If independent proxies, proxies for corporate bodies and proxies for deposited shares do not disclose to the company the number, nominal value and category of the ordinary shares they represent, the resolutions of the shareholders' meeting may be contested under the same conditions as in the case of unauthorized participation in the shareholders' meeting within the meaning of Art. 691 para. 3 CO (Art. 689f para. 1 CO). Resolutions of the shareholders' meeting can also be contested if the chairman or chairwoman fails to provide the shareholders' meeting with all the information for each type of representation, even though a shareholder has requested this (Art. 689f para. 2 CO). It is striking that only Art. 689f para. 1 CO refers to Art. 691 CO. According to the prevailing view, causality must also be taken into account in the event of a challenge based on Art. 689f para. 2 CO.
65 If an independent proxy should have been designated for a virtual shareholders' meeting (see Art. 805 para. 5 no. 2bis in conjunction with Art. 701d CO), the lack of an independent proxy means that the resolutions passed at this virtual shareholders' meeting can be challenged.
In my opinion, a lack of a statutory basis for holding a virtual shareholders' meeting also leads to contestability (Art. 805 para. 5 no. 2bis in conjunction with Art. 701d para. 1 CO). Failure to comply with the statutory requirements for holding a virtual shareholders' meeting also leads to contestability.
According to the opinion expressed here, technical problems also only lead to the contestability of the resolutions (see n. 119 below).
66 In the case of hybrid and virtual shareholders' meetings, the management determines the identity of the participants (Art. 805 para. 5 no. 2bis in conjunction with Art. 701e para. 2 no. 1 CO). If unauthorized participants sneak into the hybrid or virtual shareholders' meeting, a challenge based on Art. 691 para. 3 CO is possible (see above n. 63 and below n. 72 and n. 95).
67 The shareholders' meeting may only be held at a foreign venue without independent proxy voting if all shareholders agree to this (Art. 701b para. 2 CO). If this provision is disregarded, any resolution of the shareholders' meeting is contestable. In my opinion, contestability also exists if there is no statutory basis for holding the shareholders' meeting at a foreign venue (see Art. 701b para. 1 CO).
68 Resolutions on the approval of the annual and consolidated financial statements and the appropriation of the balance sheet profit can also be contested if the auditors are absent in violation of the regulations (Art. 731 para. 3 CO). The auditors are required by law to be present if an ordinary audit has been carried out (Art. 731 para. 2 in conjunction with Art. 818 para. 1 CO). LLCs are usually not large enough to be obliged to have an ordinary audit (see Art. 727 para. 1 in conjunction with Art. 818 para. 1 CO). An ordinary audit must be carried out if shareholders representing 10% of the share capital request such an audit (Art. 727 para. 2 in conjunction with Art. 818 para. 1 CO). A shareholder who is subject to an obligation to make additional contributions also has the right to request an ordinary audit (Art. 818 para. 2 CO). A shareholder who has left the company may also request an ordinary audit as long as his or her compensation has not been paid out in full (Art. 825a para. 4 CO). It is questionable whether the company has the right to prove a lack of causality within the meaning of Art. 691 para. 3 CO.
69 If a shareholder does not vote in the ballot within the meaning of Art. 805 para. 5 no. 5 in conjunction with Art. 701 para. 3 CO. Art. 701 para. 3 CO, a resolution passed in the ballot vote can be contested. Von der Crone, on the other hand, argues for nullity.
70 According to the prevailing opinion, there is no defective resolution if the minutes are incorrectly recorded or if there are no minutes at all. The minutes are important in connection with the application to the commercial register office (cf. Art. 23 HRegV) and the presentation of evidence (see N. 168 below). If the articles of association provide for minutes or specific provisions on minutes, their violation - provided there are no other indications in the articles of association - merely constitutes a legally irrelevant administrative offense (see also n. 8 above).
c. Formal defects in connection with the vote
71 The result of the resolution may be falsified and therefore contestable if the votes are counted incorrectly, if the quorum is applied incorrectly (see Art. 808 and Art. 808b CO) or if the chairman or chairwoman announces the resolution incorrectly. In these cases, the incorrect resolution can be replaced by the correct resolution by means of an action for positive determination of the resolution (see n. 95 below).
72 Defects in the vote may be caused by the participation of an unauthorized person (Art. 691 para. 3 CO). Shareholders who have not fulfilled their duty of notification pursuant to Art. 790a CO are also deemed to be unauthorized participants (see Art. 790a para. 5 in conjunction with Art. 697m para. 1 CO). If, as provided for in Art. 808 CO, the resolution is based on the votes represented, an unauthorized participant is already involved by the fact that he or she is represented at the shareholders' meeting with a certain number of alleged votes. In this respect too, the incorrect resolution can be replaced by the correct resolution by means of an action for positive determination of the resolution (see n. 95 below).
73 In the case of resolutions on the discharge of the managing directors, persons who have participated in the management of the company in any way do not have the right to vote (Art. 806a para. 1 CO). If they nevertheless participate in the vote, this is generally voidable.
If all shareholders participate in the management of the company, a discharge resolution is excluded from the outset. If in such situations only contestability were assumed, the resolution would be finally valid after the expiry of the two-month forfeiture period within the meaning of Art. 706a para. 1 CO. This is likely to be the case on a regular basis because the shareholders involved in the management of the company have an interest in this discharge resolution. In bankruptcy, the discharge resolution cannot be held against the claim of the entire body of creditors. Since there are therefore no creditors who have an interest in the nullity, in my opinion the legal consequence in this constellation is also the contestability of the resolution.
74 A limited liability company may acquire its own ordinary shares within narrow limits (Art. 783 CO). The voting rights and the associated rights of these ordinary shares are suspended (Art. 783 para. 4 in conjunction with Art. 659a para. 1 CO). A resolution passed in violation of this provision is contestable (see Art. 783 para. 4 in conjunction with Art. 659a para. 3 in conjunction with Art. 691 para. 3 CO). The shareholder who assigns the ordinary shares to the company has no voting rights (Art. 806a para. 2 CO) for resolutions on the acquisition of own ordinary shares (see Art. 804 para. 2 no. 11 CO). Disregarding this provision also leads to contestability.
75 In the case of resolutions on the approval of shareholder activities that violate the duty of loyalty or the non-competition clause (see Art. 804 para. 2 no. 13 CO), the shareholder concerned has no voting rights (Art. 806a para. 3 CO). A resolution that is passed in violation of this provision is contestable.
76 According to the prevailing opinion, votes cast by the representative in breach of instructions and votes cast by shareholders bound by a voting agreement in breach of contract are not relevant in connection with the contestation. However, some scholars do not recognize the proxy effect if the company is aware of the conduct contrary to instructions.
2. Material grounds for avoidance (defects in content)
77 The substantive grounds for avoidance relate to the content of the resolution. Some cases of contestability are explained below on the basis of the numbers given in Art. 706 para. 2 CO. The list is not exhaustive. For certain individual cases, it is advisable to consult the specialist literature on the relevant topic as well as the commentaries on the relevant standards.
a. Restriction or withdrawal of shareholders' rights in violation of the law or the articles of association
78 Resolutions that restrict or withdraw the rights of shareholders in violation of the law or the articles of association are contestable (Art. 706 para. 2 no. 1 CO). In connection with Art. 706 Para. 2 No. 1 CO, it is usually a question of restrictions in individual cases. The enactment of general abstract rules in the articles of association should generally lead to nullity (see below n. 124 f.). For example, a provision in the articles of association that allows shareholders' meetings to be convened in less than ten days would be null and void (see Art. 805 para. 3 CO).
b. Restriction or withdrawal of shareholder rights in an unobjective manner
79 Resolutions of the shareholders' meeting may also be contested if they restrict or deprive shareholders of their rights in an improper manner (Art. 706 para. 2 no. 2 CO). This situation is difficult to distinguish from the inadmissible review of the appropriateness and expediency of a resolution (n. 44 above). It applies if no specific legal or statutory provision is violated, but the restriction is made in an unobjective manner. Among other things, a resolution is deemed to be unobjective if it is not intended to promote the interests of the company. The principle of proportionality and the principle of the careful exercise of rights must also be observed (see n. 41 above). The interests of the minority must not be unnecessarily impaired in relation to the interests of the company. Resolutions are only rarely qualified as not being in the interests of the company.
80 A majority decision is an abuse of rights if it cannot be justified by reasonable economic reasons, obviously impairs the interests of the minority and favors the special interests of the majority for no reason. A resolution is contestable if the rights of the shareholders are restricted or withdrawn in order to pursue the personal objectives of the majority. Particular attention must be paid to this, especially if unpopular minority shareholders are to be forced out of the company. This may be the case, for example, if the majority does not distribute dividends and this cannot be justified on economic grounds because the retained funds are neither invested nor necessary as security for the future. However, the challenge merely leads to the annulment of the resolution and not to the award of an appropriate dividend.
c. Unjustified unequal treatment or discrimination of the shareholders
81 Pursuant to Art. 706 para. 2 no. 3 CO, a resolution that causes unequal treatment or discrimination of the shareholders that is not justified by the purpose of the company is contestable. The purpose of the company within the meaning of Art. 706 para. 2 no. 3 CO means the interests of the company. Relative equal treatment is required. Differentiation according to capital share is possible (see Art. 798 in conjunction with Art. 661, Art. 806 para. 1 and Art. 826 para. 1 CO). In contrast, absolute equal treatment generally applies to information rights.
Some doctrine allows unequal treatment - without giving specific examples - more generously than in the case of a public limited company due to the personalistic structures of the GmbH. Pursuant to Art. 808c CO, the provisions relating to a public limited company apply "accordingly" (see n. 2 above). Thus, when applying the prohibition of unjustified unequal treatment or discrimination of shareholders within the meaning of Art. 706 para. 2 no. 3 CO, the special features of the GmbH must be taken into account. This applies, for example, to the approval by the shareholders' meeting of a certain activity that violates the duty of loyalty or the non-competition clause (see Art. 808b para. 1 no. 7 CO). If the company refuses consent to one shareholder to carry out such an activity but grants it to another, a challenge should only be possible in obvious cases of abuse. In this regard, it should be noted that, due to the cassatory nature of the rescission judgment, in principle only the granting of consent can be rescinded and the refusal cannot be turned into consent (see n. 94 below). Nonetheless, Art. 706 para. 2 no. 3 CO is also generally applicable to the GmbH. The extent to which the special features of the GmbH can be taken into account depends on the individual case.
d. Cancellation of the profit motive
82 The profit motive can only be revoked with the consent of all shareholders and not just those represented (Art. 706 para. 2 no. 4 CO). Otherwise, the resolution of the shareholders' meeting is contestable. This provision concerns the determination of a charitable purpose. The annual resolution on the appropriation of profits is not covered by this provision. This provision does not apply if only an increase in the share capital, which would be necessary to generate profits, is rejected.
E. Legal nature of the action
83 The action for rescission is an action for formulation (Art. 87 CPC). The action for rescission changes the legal situation by rescinding the resolution passed by the shareholders' meeting. The action for positive determination of a resolution (see Art. 691 para. 3 CO; see N. 95 below) is also an action to determine the legal situation despite the misleading name.
84 The challenge of a resolution of the shareholders' meeting cannot be asserted as a defense. If the two-month period has not yet expired, it is possible to assert the avoidance by way of counterclaim.
F. Contestation/forfeiture period
85 The action for avoidance is forfeited if the action is not brought within two months of the holding of the shareholders' meeting or the written vote (in the case of a ballot) (Art. 706a para. 1 CO). The court examines compliance with this forfeiture period ex officio. According to the case law of the Federal Supreme Court, the grounds for contestation must also be submitted within this period. The Federal Supreme Court acknowledges that it can be difficult to define the grounds for avoidance in individual cases. In any case, two different grounds for contestation exist if they are not only based on different legal arguments, but also on different facts. Caution is also required in connection with the approval of the annual financial statements (see Art. 804 para. 2 no. 5 CO; see above n. 68). In this respect, according to the Federal Supreme Court, it is not possible to justify a challenge on the basis of the incorrectness of a balance sheet item that already resulted from earlier, unchallenged approval resolutions of the shareholders' meeting.
86 Irrespective of attendance at the meeting, the time limit begins to run on the day after the shareholders' meeting. Art. 77 and Art. 78 para. 1 CO are decisive for the calculation of the time limit. In application of Art. 77 para. 1 no. 3 CO, the action must be brought no later than the day of the second month bearing the same number as the day of the shareholders' meeting and, if this day is missing in this month, on the last day of this month. Pursuant to Art. 78 para. 1 CO, the deadline is extended to the next working day if the last day falls on a Saturday, Sunday or a public holiday (at the place of the competent court).
87 In the case of a ballot vote, the time limit begins to run from the announcement of the result. It is disputed whether, if the result is announced to the shareholders by post, the day following the date of posting constitutes the first day of the time limit or whether the time limit only begins to run once the shareholder has actual knowledge of the result. With the exception of association law, an objective point in time is generally used to calculate the deadline (Art. 706a para. 1 and Art. 891 para. 2 CO). In association law, the possibility of knowledge is taken into account. In order for all shareholders to be able to recognize when the resolution becomes definitively valid (see n. 16 above), the first view must be accepted. The shareholders of the GmbH are responsible for taking note of the resolution in good time.
88 The deadline is observed in accordance with Art. 64 para. 2 in conjunction with Art. 62 para. 1 CPC. Art. 62 para. 1 CPCwith the posting of the request for arbitration or the action in the event of a waiver of the arbitration procedure (see Art. 199 para. 1; see n. 151 below) as well as in the case of subject matter jurisdiction of the commercial court (see Art. 198 lit. f CPC; see n. 147 et seq. below).
89 Some of the literature grants plaintiffs an extension of the deadline in certain situations. Such a situation is conceivable if the company holds out the prospect of revoking the resolution or if the plaintiff has been misled about the possibility of a challenge, for example by a declaration of incontestability. In my opinion, extending the pending status due to such circumstances is only justified in extreme individual cases for reasons of legal certainty. After expiry of the two-month period, the resolution should generally become definitively valid in the absence of a challenge (see n. 16 above). As a precautionary measure, a request for arbitration or an action should therefore be filed within two months.
It is disputed whether the two-month forfeiture period must also be observed when asserting defects of will. Based on Art. 31 para. 1 CO, some doctrine is of the opinion that a shareholder can declare his or her vote invalid within one year of the shareholders' meeting by means of a simple declaration to the company or assert this by means of an action for rescission. In the interests of legal certainty, the forfeiture period of two months must also be strictly adhered to when asserting defects of will. The two-month period is to be regarded as lex specialis compared to the one-year period pursuant to Art. 31 para. 1 CO. Even in the event of a lack of will, the interest of legal transactions in clarity as to whether a resolution is valid or not prevails. Accordingly, there is no justification for a longer period for contesting a resolution. A declaration to the company is not sufficient. A timely action for avoidance is required. For a successful challenge, it is required that the resolution would have been different without this defect (on the actual causality of the result, see n. 49 above). Depending on the applicable quorum, the corresponding votes are deemed not cast or not represented (see Art. 808 and Art. 808b CO).
90 If the shareholders' meeting unjustifiably refuses to provide information or inspection, the court can provide this information (Art. 802 para. 4 CO). This action, which is also at least indirectly directed against a resolution of the shareholders' meeting, is not subject to any time limit. The summary procedure applies (Art. 250 lit. c no. 7 CPC).
G. Consequences of the judgment of avoidance
1. Dismissal of the action for avoidance
91 The dismissal of the action for avoidance is only effective inter partes and therefore has no effect on the actions for avoidance of other plaintiff shareholders. The judgment of a dismissed avoidance action is a declaratory judgment because it does not change the legal situation. The grounds for the judgment state that the resolution is free of defects, which results in the dismissal of the action (n. 14 above).
2. Approval of the action for annulment
92 If an action for avoidance is upheld, a substantive judgment is issued. The invalidation of the resolution of the shareholders' meeting constitutes the formative effect. For this to occur, the decision must become formally legally binding.
93 The effects of a judgment approving an avoidance action are briefly described below in terms of substance (N. 94 f.), time (N. 96) and personality (N. 97 f.).
a. Effect of the judgment from a factual point of view
94 A favorable judgment annuls the decision (see Art. 706 para. 5 CO). As a rule, the respective judgment has exclusively cassatory effect. The court cannot - with the exception of the positive action for the adoption of a resolution (see n. 95 below) - amend or replace the resolution of the shareholders' meeting. If only individual parts of the resolution are defective, the court can only partially approve the action for annulment (Art. 20 para. 2 CO by analogy).
95 After the prevailing doctrine recognized the positive action to determine a resolution, the Federal Supreme Court recently followed suit. According to the Federal Supreme Court, an action for positive determination of a resolution is admissible if, due to the counting of inadmissible votes, a proposed resolution that should have been deemed to have been adopted was recorded as rejected. The action for a declaratory judgment therefore enables the court to replace the incorrect result with the correct result. Without an action for a declaratory judgment, there would be a lack of legal protection. The plaintiff could only have the effect that a decision that wrongly rejects an application is annulled, but this would not help the plaintiff. According to the Federal Supreme Court, this is tantamount to thwarting the right to vote. This view must be endorsed.
b. Effect of the judgment in terms of time
96 According to unanimous doctrine and case law, the resolution of the shareholders' meeting lapses with effect ex tunc. The invalidity of the resolution therefore relates back to the resolution passed at the shareholders' meeting. This also applies accordingly in the case of an action for positive determination of a resolution (see n. 95 above).
c. Effect of the judgment in personal terms
97 Pursuant to Art. 706 para. 5 CO, the judgment is effective for and against all shareholders. It is questionable and hardly discussed whether this refers to the formative effect and/or the substantive legal force. According to the opinion expressed here, the shareholders are also affected by the substantive legal force in addition to the formative effect. Without the inclusion of substantive res judicata, the judgment approving the challenge would not be binding for the other shareholders in a subsequent lawsuit. This could lead to a splitting of the legal consequences for the individual shareholders, which would result in almost insoluble problems with the simultaneous (non-)implementation of the resolution.
If a dividend resolution is declared invalid due to a challenge, the entitlement to payment of the dividend lapses. Any payment would be based on Art. 800 i.V.m. Art. 678 para. 1 CO (see n. 138 f. below). If the shareholder is not affected by the substantive legal force, he or she could argue in court that the annulment of the resolution in the rescission judgment was unjustified. In the worst case scenario, the successfully contesting shareholder would ultimately be the only one who would have to repay the dividend received, which cannot be considered a desirable goal.
98 Third parties are also affected by the judgment approving the avoidance - at least in terms of the structuring effect. In principle, the judgment means that all parties involved are in the same position as if the resolution had never been passed.
IV. Action for annulment
99 Resolutions of the shareholders' meeting with serious defects are already invalid from the outset and do not only become invalid with effect ex tunc through an approved action for annulment (see above N. 10 and N. 96). However, an action for annulment as an action for a declaratory judgment can be used to demand a judicial declaration that a resolution of the shareholders' meeting is null and void.
100 In the doctrine, a distinction is sometimes made between sham resolutions and non-resolutions (see n. 7 above). Since the legal consequence of sham resolutions and non-resolutions is also nullity, this commentary does not make this distinction.
A. Active legitimation
101 Anyone who has an interest worthy of protection in the determination of the nullity of a resolution of the shareholders' meeting has the right to bring an action. In contrast to an action for rescission, third parties - such as creditors - may also have standing. The management also has standing. In contrast to the action for avoidance, however, each managing director alone has the right to bring an action if there is an interest worthy of protection (see n. 28 above).
102 A sufficient interest in a declaratory judgment is a prerequisite. This must be current and practical. Such an interest may exist, for example, if the legal position or interests of a person affected are directly impaired or if the bounds of morality or public order have been violated. The intention to protect the interests of society is sufficient in this case. For creditors, such an interest exists, among other things, if the prohibition of restitution of deposits has been violated (see Art. 793 para. 2 CO).
As this is an action for a declaratory judgment, it is a prerequisite that the plaintiff is faced with uncertainty about his or her legal position, the continuation of which is unreasonable and cannot be remedied in any other way - in particular by an immediate action for performance or an action to determine the form of the claim (subsidiarity; see the examples below in N. 137 and N. 139).
B. Passive legitimation
103 The company has passive legitimacy.
104 For representation in proceedings, see below: N 153 et seq.
105 For the company deleted from the commercial register, see above: N. 36.
C. Grounds for nullity
106 For a resolution to be null and void, there must be a qualified defect. The list of such defects in Art. 706b CO is not exhaustive. However, caution is required when assuming nullity. Nullity poses a risk to legal transactions. The principle of subsidiarity of nullity applies. It is the exception as opposed to voidability as a rule. Accordingly, a resolution is only null and void if contestability is not a sufficient legal consequence. The violation of a provision of the articles of association that does not also constitute a violation of the law only leads to voidability.
107 Art. 706b CO is not an exclusive special provision. This means that a resolution with an impossible or immoral content is void on the basis of Art. 20 para. 1 CO (cf. Art. 7 CC). Resolutions that cause excessive binding of the members are subject to the legal consequences of Art. 27 para. 2 CC. In my opinion, this includes, for example, a waiver to dissolve the company for an indefinite period of time.
108 The grounds for nullity can be divided into formal (N. 109 et seq.) and substantive grounds (N. 122 et seq.). It should be noted that the distinction is sometimes fluid. However, since the invalidity of formal grounds does not depend on a causality requirement as is the case with avoidance (see n. 109 below), the division into formal or substantive grounds for invalidity is of merely theoretical significance. Art. 706b CO primarily expressly mentions substantive grounds for nullity.
1. Formal grounds for nullity (procedural defects)
109 Formal defects that lead to the nullity of a resolution of the shareholders' meeting may arise in the resolution procedure. A serious and obvious formal defect is required. It is disputed whether there is also a causality requirement for void resolutions of the shareholders' meeting (see above n. 48 f. on causality in the case of rescission). The Federal Supreme Court rejected the existence of a causality requirement with regard to the non-invitation to a meeting. In contrast, it affirmed the causality requirement in connection with joint representation within the meaning of Art. 690 CO, considering that in the case of defects relating to joint representation, the decisive factor was whether these had an effect on the result of the resolution. Formally incorrect procedures in these constellations - without influencing the result of the resolution - are therefore not decisive when calculating the votes. The Federal Supreme Court later considered that the decision regarding the non-invitation to a meeting was a special case. Otherwise, the causality requirement must also be met in the case of formal grounds for nullity.
Some scholars are in favor of a causality requirement (in part with reference to the case law just cited). Other voices rightly deny a causality requirement. In the case of a serious defect, a corresponding exoneration of the company is not justified.
Joint representation is an upstream problem of the exercise of voting rights on shares or ordinary shares of jointly entitled persons and not a direct defect on the occasion of the shareholders' meeting. The Federal Supreme Court merely considered that the incorrect handling of voting rights in joint authorization should only be taken into account if the result of the resolution is also affected. Accordingly, it should not necessarily be inferred from the case law cited above that a causality requirement is necessary. In BGer 4A_141/2020 of September 4, 2020 E. 3.2, the Federal Supreme Court only made a brief statement in a three-judge panel.
110 These formal deficiencies are presented below by way of example. Not all constellations can be dealt with in this commentary. In this regard, reference is made to the specialist literature and the commentaries on the respective violated standards.
The following description is based on two sections, which are oriented towards the chronological sequence (defects in convening [N. 111 ff.] and holding [N. 117 ff.] the shareholders' meeting).
a. Formal defects in the convening of the shareholders' meeting
111 Invalidity of shareholders' meeting resolutions exists, among other things, if the meeting cannot be said to have been convened at all. Such a case exists, for example, if an incompetent body has convened the shareholders' meeting. This also includes the unauthorized convening of a shareholders' meeting by an individual managing director without a corresponding resolution by the management.
112 If some of the shareholders were not invited, this generally constitutes nullity. Some doctrine restricts this principle. Riemer requires the culpable failure to convene individual shareholders. Schott postulates the legal consequence of nullity only in those cases where the company knew or should have known about it. The extent to which the Federal Supreme Court will allow such restrictions is not yet entirely clear.
113 A notice of meeting on which the place, time or items to be discussed are missing also leads to the nullity of the subsequent resolutions of the shareholders' meeting.
114 There is controversy in the literature regarding the question of the cases in which non-compliance with the notice period pursuant to Art. 805 para. 3 CO leads to nullity (see above n. 53 regarding contestability). Part of the doctrine is in favor of the nullity consequence if the deadline was missed by several days. For Handschin/Truniger, nullity exists in the case of clear non-compliance. Another view argues for nullity only if the managing directors have obviously and intentionally violated the deadline for convening the meeting. In my opinion, nullity should be limited to blatant cases. The complexity of the business on the agenda should also be taken into account with regard to failure to meet the deadline for convening the meeting. The more complex, the more serious the failure to comply with the notice period.
115 The form in which the meeting is convened is determined by the articles of association (Art. 805 para. 5 no. 1 in conjunction with Art. 626 para. 1 no. 7 CO). If the meeting is convened in a different form and, for this reason, some of the shareholders are not aware of it, it is null and void.
116 In the event of incorrect or inadequate convocation, the universal general meeting ("without observing the formal requirements prescribed for the convocation"; Art. 805 para. 5 no. 5 in conjunction with Art. 701 para. 1 and Art. 701 para. 2 CO) remains reserved. Art. 701 para. 1 and para. 2 CO).
b. Formal deficiencies in the conduct of the shareholders' meeting
117 A serious defect that leads to nullity is the deliberate or culpable non-admission of shareholders entitled to participate in the shareholders' meeting.
118 Resolutions of universal meetings (Art. 805 para. 5 no. 5 CO in conjunction with Art. 701 para. 1 and para. 2) at which not all shareholders were present or left prematurely are null and void.
119 According to a currently still predominant part of the doctrine, technical problems during the shareholders' meeting, so that it cannot be conducted properly (Art. 805 para. 5 no. 2bis in conjunction with Art. 701f para. 1 CO), are provided as a formal reason for nullity. In principle, this only includes technical disruptions on the part of the company and not the shareholders. However, this does not apply to a virtual universal meeting because in this case not all shareholders or their representatives participate (see Art. 805 para. 5 no. 5 in conjunction with Art. 701 para. 2 CO). An exception exists, for example, in the event of the failure of a major telecommunications company. However, Jutzi/Yousef rightly argue that in such a case only contestability exists. These authors argue, among other things, that voidability is the rule in the event of irregularities at the shareholders' meeting. The assumption of nullity would jeopardize legal certainty too much and the shareholders would be sufficiently protected by contestability. Some scholars would like to determine whether contestability or nullity exists based on the specific circumstances.
According to the view expressed here, there is no causality requirement, irrespective of the question of whether nullity or voidability exists. Some scholars are in favor of a causality requirement because otherwise the risk of repeating a virtual shareholders' meeting is too great. However, the shareholders have a legal right to a proper implementation. Extreme constellations in which a repetition would be a pure waste of time can be remedied with the prohibition of abuse of rights (Art. 2 para. 2 CC).
In these cases, the legislator provides for a repetition of the shareholders' meeting. The claim for repetition can be combined with the application for rescission or nullity within the meaning of Art. 90 CPC. The resolutions passed by the shareholders' meeting before the technical problems arose remain valid (Art. 805 para. 5 no. 2bis in conjunction with Art. 701f para. 2 CO). Of course, other grounds for nullity or contestation remain reserved.
If the agenda is not supplemented, the meeting may be repeated without observing the notice period, unless the majority of shareholders are excluded from participation from the outset.
120 According to Art. 731 para. 3 CO, resolutions on the approval of the annual financial statements and the appropriation of the balance sheet profit are null and void without the required audit report. If an opting-out has taken place, no audit report is required for these resolutions (see Art. 818 para. 1 in conjunction with Art. 727a para. 2 CO). If the audit report is deficient, not all deficiencies lead to the resolutions being null and void. Nullity exists if only a limited audit was carried out instead of an ordinary audit. If no audit was carried out at all, nullity must also be assumed. Furthermore, nullity exists if an audit report is not sent to the shareholders at the latest with the invitation to the ordinary shareholders' meeting (see Art. 801a para. 1 CO). A void resolution of the shareholders' meeting cannot be cured by a subsequently submitted audit report.
121 Certain resolutions of the shareholders' meeting must be notarized by law (e.g. amendments to the articles of association [Art. 780 CO], capital increase resolution [Art. 781 para. 5 no. 1 in conjunction with Art. 650 para. 2 CO and Art. 75 para. 1 HRegV], capital reduction resolution [Art. 782 para. 4 in conjunction with Art. 653n CO] and the dissolution resolution [Art. 821 para. 2 CO]). This requires the notary to be present at the shareholders' meeting. Furthermore, the correct dating, i.e. neither pre-dating nor post-dating, as well as the correct indication of the place is required. If the resolutions are not properly notarized, they are null and void and therefore legally non-existent (see also Art. 11 para. 2 CO). According to Haefliger, only contestability exists if a public notarization is merely required by the articles of association. In view of Art. 16 para. 1 CO, according to which parties do not wish to be bound beforehand by an agreed formal reservation, it may also be possible to justify the nullity of such a resolution (cf. Art. 7 CC). The statutory basis forms the formal reservation. Since a breach of the articles of association only leads to voidability, it should also be assumed that a public notarization required by the articles of association is only voidable (in general, regarding the breach of the articles of association, see n. 43 above).
2. Substantive grounds for nullity (defects in content)
122 In general, a substantive ground for nullity exists if general abstract provisions are introduced by means of provisions in the articles of association that contradict mandatory law. The legal consequence of nullity thus prevents shareholders from anchoring unlawful provisions in the articles of association by failing to challenge them. Contestability generally exists in the case of individual violations. This includes, for example, a resolution that improperly rejects a dividend distribution in favor of the shareholders (see n. 80 above).
123 The cases listed in the non-exhaustive Art. 706b CO are briefly explained below (see n. 106 above).
a. Right to participate in the shareholders' meeting and minimum voting rights
124 Pursuant to Art. 706b para. 1 CO, resolutions that generally restrict the right to participate in the shareholders' meeting are null and void. The revocation of the minimum voting right pursuant to Art. 806 para. 1 sentence 2 CO constitutes grounds for nullity. This also includes the revocation of the right of representation (see Art. 805 para. 5 no. 8 in conjunction with Art. 689b et seq. CO). The introduction of a provision in the articles of association according to which the shareholders' meeting may only pass a resolution at the request of the management or may only increase the share capital to the extent proposed by the management would also be null and void. Other general restrictions on the shareholders' right to propose resolutions would also be null and void.
b. Rights of action and other mandatory rights granted to shareholders
125 The shareholders' meeting may also not generally and permanently restrict or withdraw the rights of action and other rights granted to the shareholders (Art. 706b para. 1 CO). A resolution that would permanently exclude the personal liability of the management would be null and void (see Art. 827 in conjunction with Art. 753 et seq. CO). The personal and irrevocable rights of the shareholders pursuant to Art. 706b para. 1 CO in fine are a general clause for other cases not explicitly mentioned in the law.
c. Control rights of the shareholders
126 Resolutions that introduce provisions in the articles of association restricting the shareholders' rights of control are null and void (Art. 706b para. 2 CO). The rights of control include the right to disclosure of the annual and audit reports (Art. 801a CO) and the right to information and inspection (Art. 802 CO).
d. Basic structures of the GmbH
127 The term "basic structures" is illustrated in the doctrine by means of examples. In general, these include the constitutive features of the GmbH as a legal institution. A resolution that transfers the management of the company to the shareholders' meeting would be null and void (see Art. 810 para. 2 CO: "non-transferable and irrevocable duties"). The introduction of no-par value ordinary shares is also not possible (see Art. 774 para. 1 CO). The creation of an ordinary share without entitlement to dividends and a liquidation share would also be null and void.
e. Provisions on capital protection
128 The capital protection mentioned in Art. 706b para. 3 CO is an example of an important basic structure of the GmbH as a corporation (cf. Art. 772 para. 1 CO). This includes, for example, the issue of ordinary shares below par (see Art. 774 para. 2 CO). It also includes a resolution that would provide for the payment of interest on the capital contributions (see Art. 798 in conjunction with Art. 675 para. 1 CO). Resolutions that violate the capital protection provisions in individual cases are also null and void. This includes, for example, a resolution on the (partial) repayment of share capital (see Art. 793 para. 2 CO). Furthermore, resolutions that provide for capital repayments in disregard of the prescribed capital reduction procedure are null and void (Art. 782 in conjunction with Art. 653j et seq. CO). Profit distributions that violate the blocking ratios (share capital and statutory reserves) are null and void (see Art. 798 in conjunction with Art. 675 ff. and Art. 801 in conjunction with Art. 671 ff. CO).
129 On the auditors and the audit report, see above: N. 58, N. 68 and N. 120.
D. Legal nature of the action
130 The nullity of a resolution of the shareholders' meeting is asserted by means of an action for declaratory judgment. It is also possible to assert the nullity by way of defense or counterclaim.
131 On the interest in declaratory judgment above: N. 101 f.
E. Time limitation
132 In contrast to an action for rescission, there is no forfeiture period for an action for annulment (n. 85 et seq. above). Since it is often difficult to assess whether a defect leads to the nullity or only to the contestability of a resolution, it is advisable to file the action for nullity within two months and, if necessary, to assert the contestability of the resolution (see n. 163 below).
133 However, the barrier of abuse of rights can lead to a time limit in individual cases (see Art. 2 para. 2 CC). Such a case exists, among other things, if the action was delayed for a longer period of time despite the execution of the invalid decision.
F. Effects of the nullity judgment
134 A declaratory judgment approving the nullity has an effect - based on an analogous application of Art. 706 para. 5 CO - erga omnes vis-à-vis all shareholders (see n. 97 et seq. above regarding the challenge). Third parties are also covered by the effect. In its judgment, the court states that the resolution of the shareholders' meeting is invalid ex tunc due to the nullity. The court can also declare only part of the resolution null and void (Art. 20 para. 2 CO analogously; on the challenge, see n. 94 above).
135 A judgment rejecting a resolution is only effective between the parties.
V. Differentiation and relationship to other corporate actions
A. Liability action (Art. 827 in conjunction with Art. 753 to Art. 760 CO)
136 The Federal Supreme Court has already dealt with the relationship between the action for avoidance and the action for liability on several occasions. In older decisions, the Federal Supreme Court considered that the action for avoidance is inadmissible if it is based on facts that can form the subject of an action for liability against the company bodies. More recent rulings leave the continuation of this case law open. The theory of subsidiarity advocated by the Federal Supreme Court (at least in the older case law) should no longer be upheld. The action for liability differs fundamentally from the action for rescission. The action for liability is directed against a member of a corporate body who is at fault and demands compensation. The action for avoidance is directed against the company and seeks the retroactive annulment of a resolution of the shareholders' meeting (see above N. 35 and N. 10 as well as N. 96). The action for avoidance and the action for liability should be possible at the same time if the respective requirements are met.
137 The action for a declaratory judgment by a creditor for the nullity of a resolution of the shareholders' meeting is available in addition to the action for liability and can be asserted in parallel. If the action for annulment is merely intended to simplify a later action for liability, it is not to be accepted due to a lack of interest in a declaratory judgment (cf. n. 101 f. above).
B. Action for restitution (Art. 800 in conjunction with Art. 678 CO)
138 If an unjustified payment is based on a contestable resolution of the shareholders' meeting, this must first be contested within two months (see Art. 706a para. 1 CO; n. 85 et seq. above). Reimbursement can only be demanded after a successful challenge. As the action for restitution may already be time-barred three years after the shareholder or the company becomes aware of it (cf. Art. 678a para. 1 CO), it must be initiated if the contestation process drags on. If necessary, these proceedings can be suspended (see Art. 126 para. 1 CPC).
139 However, if the corresponding resolution of the shareholders' meeting is null and void, the action for restitution can be initiated directly. A void resolution exists, among other things, if mandatory distribution restrictions were not observed (see above n. 128). In such cases, the interest in a declaratory judgment may often be lacking because the action for restitution can be brought as an action for performance (see n. 101 f. above).
C. Action for dissolution
140 Pursuant to Art. 821 para. 3 CO, any shareholder may request the court to dissolve the company for good cause. As the action for dissolution is subsidiary to other less drastic legal remedies, the action for rescission and the action for annulment generally take precedence. However, the action for rescission or annulment must be able to remedy the grievance in the long term.
D. Avoidance pursuant to Art. 106 f. FusG
141 Restructuring law allows the GmbH to participate in mergers, demergers, conversions and asset transfers (see Art. 2 lit. c, Art. 4 para. 1, Art. 30, Art. 54 para. 1 and Art. 69 para. 1 FusG). If provisions of the FusG are violated, shareholders (see Art. 2 lit. f FusG) of the participating legal entities who have not approved the resolution may challenge it (Art. 106 para. 1 FusG). The management is not entitled to contest the resolution pursuant to Art. 106 f. FusG (Art. 106 para. 1 FusG e contrario). Whether a challenge is possible in the case of a transfer of assets is the subject of controversial debate among scholars. According to the prevailing doctrine, the action for avoidance pursuant to Art. 106 et seq. FusG takes precedence over the ordinary action for avoidance as lex specialis. What the FusG permits cannot constitute a ground for avoidance pursuant to Art. 808c in conjunction with Art. 706 CO. Art. 706 CO.
142 It should be noted that the two-month period for the ordinary action for avoidance generally runs from the adoption of the resolution (Art. 706a para. 1 CO; detailed above n. 85 et seq.), while the action for avoidance pursuant to Art. 106 et seq. FusG does not have to be filed until two months after publication in the SOGC (Art. 106 para. 1 FusG). If no publication in the SOGC is required, the time limit begins at the time the resolution is passed (Art. 106 para. 1 last sentence FusG).
VI. Procedural matters
A. Jurisdiction
1. Local jurisdiction
143 The court at the registered office of the GmbH has jurisdiction for both the action for rescission and the action for annulment (Art. 10 para. 1 lit. b CPC). The registered office of the GmbH is determined by the articles of association and the entry in the commercial register (Art. 776 para. 1 CO and Art. 73 para. 1 lit. c HRegV). As the entry of the transfer of the registered office has a constitutive effect, the registered office entered in the commercial register (at the time the application or action is filed) is decisive.
144 The place of jurisdiction for the registered office is not mandatory. An agreement on the place of jurisdiction in the articles of association is primarily binding on the founding members and the company. New shareholders are bound by the agreement on the place of jurisdiction in the articles of association by signing the articles of association or by a declaration of accession expressly recognizing the articles of association. Art. 17 para. 2 CPC provides for a written form or another form that enables proof by text as a formal requirement.
145 A change of registered office of the company - during the current contestation period - may be an abuse of rights and would therefore have no effect with regard to the contestation. A change of registered office after the action for avoidance has become lis pendens does not affect the local jurisdiction (Art. 64 para. 1 lit. b CPC; perpetuatio fori).
2. Subject matter jurisdiction
146 Pursuant to Art. 6 para. 4 lit. b CPC, the cantons may declare the commercial court to have jurisdiction for disputes arising from the law of commercial companies and cooperatives. All commercial court cantons have made use of this option. In the cantons of Aargau and St. Gallen, actions for rescission and nullity of a resolution of the shareholders' meeting must be submitted to the commercial court regardless of the amount in dispute (Section 12 para. 1 lit. a EG CPC AG and Art. 11 para. 1 lit. b EG CPC SG). In the cantons of Bern and Zurich, the commercial court has jurisdiction if the relevant amount in dispute exceeds CHF 30,000 (Art. 7 para. 2 EG ZSJ BE and Art. 44 lit. b GOG ZH; on the amount in dispute, see n. 174 below).
147 According to the Federal Supreme Court, a commercial register entry of the parties is not relevant for the jurisdiction of the Commercial Court pursuant to Art. 6 para. 4 lit. b CPC. The subject matter jurisdiction established in accordance with Art. 6 para. 4 CPC is mandatory and, consequently, a cantonal limitation of the scope of application in accordance with Art. 6 para. 2 and para. 3 CPC is not permissible. Consequently, the plaintiff's right of choice within the meaning of Art. 6 para. 3 CPC, which is tailored to the plaintiff's lack of entry in the commercial register, does not apply either. The assignment of the action for rescission or nullity to the Commercial Court is therefore mandatory - apart from the permissible introduction of a limit on the amount in dispute (n. 146 above).
148 The Commercial Court also has jurisdiction for precautionary measures before and after lis pendens (see Art. 6 para. 5 CPC). See below on precautionary measures: N. 179 et seq.
149 In the other cantons, courts of first instance first deal with actions for rescission and nullity. This may be followed by cantonal appeal proceedings (see N. 178 below).
B. Conciliation proceedings
150 If the commercial court has jurisdiction, the conciliation procedure is not required according to Art. 198 lit. f CPC (see above N. 146 ff.). Furthermore, no conciliation proceedings are required if a forfeiture period has been set (see n. 180 below). The forfeiture period of the action for rescission is not such a period (cf. n. 85 et seq. above). In other cases, conciliation proceedings are generally required (see Art. 197 CPC). However, an acknowledgement of the claim and a settlement are only permissible to a limited extent (see N. 170 et seq. below). On the other hand, it is permissible to settle the avoidance proceedings by withdrawing the action.
151 Pursuant to Art. 199 para. 1 CPC, the parties may jointly waive arbitration proceedings if the amount in dispute is at least CHF 100,000. If the shareholders' meeting is not willing to approve an acknowledgment of claim or a settlement, the arbitration proceedings should be waived in order to avoid unnecessary idle time and to provide clarity about the final validity of the resolution more quickly. In addition, the possibility of a direct action in agreement with the defendant before the higher court of the canton concerned in accordance with Art. 8 ZPO should also be considered. This can also help to clarify the final validity of a resolution of the shareholders' meeting more quickly (see n. 16 above).
152 If no agreement can be reached, the arbitration authority will grant the plaintiff for avoidance or nullity the authorization to file suit (Art. 209 para. 1 lit. b CPC). The plaintiff then has three months to file an action (Art. 209 para. 3 CPC). The period of two months within the meaning of Art. 706a para. 1 CO does not apply. This time limit is suspended during court vacations (Art. 145 para. 1 CPC).
C. Representation of the GmbH
1. Management
153 In the event of an action for rescission and/or nullity, the company is represented as the defendant by the management (see Art. 706a para. 2 CO e contrario). If only individual members of the management as shareholders contest the resolution, the company is represented by the rest of the management. The shareholders bringing the action must recuse themselves.
154 In some cases, the question arose as to how to proceed if the subject of the proceedings is the validity of an election resolution. The plaintiff shareholder argues that the member of the management representing the company in the civil proceedings was not validly (re-)elected. It is now questionable whether the disputed validly (re-)elected member of the management of the defendant GmbH can validly represent the company or validly authorize a lawyer to represent it. In such a situation, the plaintiff shareholder could object, among other things, that the company's response and any duplicate response cannot be relied upon.
The capacity to sue is the procedural correlate to the capacity to act under civil law (Art. 67 para. 1 CPC). Legal entities have the capacity to act and therefore the capacity to institute legal proceedings as soon as the bodies required by law and the articles of association have been appointed (Art. 54 CC). In the case of an action for rescission and/or nullity regarding the validity of an election resolution or several election resolutions, the question of capacity to sue cannot be answered without an assessment of the substantive law.
Such a situation was resolved by the Commercial Court of the Canton of Berne by applying the concept of doubly relevant facts. Doubly relevant facts are those that are relevant to both the admissibility and the substantive merits of an action. If such facts are disputed, they must be assumed to be true for the purpose of assessing the admissibility of the action. They are only examined at the time of the substantive examination of the claim and any objections raised by the opposing party in this regard are irrelevant in the context of the admissibility examination. If there are doubly relevant facts in connection with the capacity to sue, the capacity to sue must be assumed in the proceedings. For this reason, the court can dispense with examining the validity of the election resolution of the defendant company when examining admissibility. This also renders the appointment of a representative for the company in analogous application of Art. 706a para. 2 CO unnecessary. In organizational deficiency proceedings, the High Court of the Canton of Zug upheld the reasoning of the lower court, according to which, until the material examination of the organizational deficiency of the absence of a prescribed body (board of directors) within the meaning of Art. 731b para. 1 no. 1 CO, the defendant legal entity's capacity to institute proceedings in the sense of a double-relevant fact was to be assumed.
2. Representation within the meaning of Art. 706a para. 2 CO
155 If the management brings an action as an executive body (n. 28 et seq. and n. 101 above), the court must appoint a representative for the defendant company in accordance with Art. 706a para. 2 CO. If all members of the management bring an action in their capacity as shareholders, representation must also be appointed (on the withdrawal of the shareholders bringing the action, see n. 153 above).
156 Pursuant to Art. 250 lit. c no. 10 CPC, representation is appointed in summary proceedings. In my opinion, this is an interim decision that has an influence on the proceedings. According to another view, this is a matter of voluntary jurisdiction. According to Art. 19 CPC, the court at the registered office of the company has mandatory jurisdiction. Since the place of jurisdiction for actions for rescission and nullity is not mandatory (see n. 144 above) and jurisdiction for the appointment of a representative should lie at the place of the main proceedings, it is impracticable to classify this as a matter of voluntary jurisdiction.
157 According to Schenker, representation is determined by the court of first instance after receipt of the action. According to Hüsser, the management of the company concerned must submit an application. If a commercial court has jurisdiction, this decision falls within its competence.
As representation may show that the action would be futile, it is desirable for the company to be represented within the meaning of Art. 706a para. 2 CO during the arbitration proceedings. In these cases, the management must turn to the court because the conciliation proceedings are not required in summary proceedings (see Art. 198 lit. a CPC). In my opinion, the conciliation authority is not authorized to appoint a representative in accordance with Art. 706a para. 2 CO. Court practice has forwarded arbitration requests from the executive body regarding actions for avoidance to the court of first instance for reasons of jurisdiction.
158 The task of representation is to defend the interests of the company. The representation must be independent of the company's executive bodies. The management is not authorized to issue instructions to the representative. In my opinion, the representative has a sui generis relationship with the company and may therefore be liable to the company for any damage caused.
159 According to doctrine, the management of the company must provide the representative with the requested documents and information. This duty to hand over has its roots in substantive law. For this reason, it is sufficient if the representative credibly demonstrates that it needs the information and documents for the proper defense of the company as defendant. The duty of disclosure can be enforced in court. The court can also oblige the company to pay the representative an appropriate advance payment. In my opinion, summary proceedings should be applied in both cases (Art. 250 lit. c Ziff. 10 CPC analogously).
D. Procedural maxims
1. Maxim of negotiation or investigation?
160 In an earlier decision, the Federal Supreme Court dealt with the question of whether the facts of the case had to be clarified ex officio in avoidance proceedings. The Federal Supreme Court considered that the facts of the case do not have to be clarified ex officio so that the management does not act in favor of the contesting shareholder. It is true that the Federal Supreme Court considers the investigation maxim to be justified due to the interests of parties not involved in the proceedings. However, the law does not provide for such an obligation (see also Art. 55 para. 2 CPC). The other shareholders may have to defend themselves by means of an intervening party (see below n. 171 et seq.). The negotiation maxim therefore applies. As a consequence of the negotiation maxim, it is conceivable that the management, as the representative of the company, does not dispute the assertions of the plaintiff and thus implicitly acknowledges them. As a result, the court may have to assume a defect in the resolution of the shareholders' meeting, although it would actually be free of defects (see Art. 222 para. 2 CPC). According to Böckli's earlier opinion, the court has the option and duty to deviate from the negotiation maxim in individual cases if it is obvious that a materially expedient judgment is being thwarted. In my opinion, such a deviation is only possible in accordance with the taking of evidence ex officio within the meaning of Art. 153 para. 2 CPC. Recently, Böckli rejects this view because the CPC does not provide for a statutory provision according to which the maxim of investigation should apply (cf. also Art. 55 para. 2 CPC). In this regard, von der Crone points out the risk of liability if members of the board of directors improperly influence the process.
161 The negotiation maxim also applies to actions for annulment. The circumstances giving rise to the nullity must be alleged by the plaintiff and, if disputed, proven (see Art. 150 para. 1 and Art. 221 para. 1 lit. d CPC; on the burden of proof below n. 167).
2. Disposition or official maxim?
162 Since there is no statutory provision stating that the court is not bound by the parties' submissions, the disposition maxim applies in rescission and nullity proceedings (see Art. 58 para. 2 CPC).
163 The plaintiff must therefore specify the decisions that he or she is contesting in the legal request (see Art. 58 para. 1 CPC). As it is difficult to distinguish between nullity and voidness, a combination of main and contingent claims is recommended. However, the nullity of a resolution can also be established ex officio if the relevant resolution of the shareholders' meeting is the subject of the proceedings and the relevant facts have been introduced into the proceedings. This is important, for example, if the deadline for contesting a resolution has been missed.
164 With regard to the acknowledgement of the claim and the settlement: see n. 170 below.
E. Right of proof
165 In the absence of a deviating provision, Art. 8 CC applies with regard to the burden of proof. The plaintiff in the avoidance action bears the burden of proof for legitimacy (n. 19 et seq. above), the violation of the law and/or the articles of association (n. 41 et seq. above) and compliance with the forfeiture period (n. 85 et seq. above). The plaintiff also bears the burden of proof for any lack of intent (see n. 20 and n. 89 above). The consent of the plaintiff in avoidance, which excludes any right to bring an action, must be proven by the defendant company as a fact preventing the right to bring an action (see n. 20 above).
If the plaintiff proves unequal treatment, the company bears the burden of proof for the justification. The management must therefore prove that the unequal treatment is in the interests of the company. The resolution may also be contestable if the plaintiff succeeds in proving that the interests of the company could also have been achieved by a resolution that respects equal treatment.
166 The lack of actual causality of the result (n. 49 and n. 51 above) must be proven by the defendant company (Art. 691 para. 3 CO). In contrast, normative causality (n. 49 and n. 51 above) must be proven by the plaintiff or the claimant.
167 The plaintiff in an action for nullity generally bears the burden of proof for the facts leading to nullity. In principle, the presumption applies that defective resolutions of the shareholders' meeting are only contestable. It is also incumbent on the plaintiff to prove his or her interest in a declaratory judgment.
168 In connection with the burden of proof, the minutes of the shareholders' meeting may be of great importance (Art. 805 para. 5 no. 7 in conjunction with Art. 702 CO). If the minutes are kept correctly, relevant technical problems are listed therein, among other things (see Art. 702 para. 2 no. 6 CO). The Federal Supreme Court rejects the assumption of a lack of evidence and an associated reduction in the standard of proof in the case of improperly prepared minutes.
Shareholders may request that the minutes be made available to them within thirty days of the shareholders' meeting (Art. 805 para. 5 no. 7 in conjunction with Art. 702 para. 4 CO). However, there is no entitlement to a copy of the minutes. A shareholder may obtain knowledge of the content of the minutes either in the proceedings for taking evidence in the action for avoidance by means of documentary evidence or as an auxiliary request in the context of a step-by-step action.
In the proceedings for taking evidence on the action for avoidance, the minutes must be handed over by the defendant company and not only made accessible within the meaning of Art. 702 para. 4 CO (see Art. 160 para. 1 lit. b CPC) if corresponding requests for evidence are made and approved by the court. However, such a request for the disclosure of the minutes in civil proceedings generally requires assertions as to which facts the minutes in question should prove (see Art. 221 para. 1 lit. d and lit. e CPC). If the defendant refuses to produce the minutes, this will be taken into account when assessing the evidence (see Art. 164 CPC). If the plaintiff has not attended the shareholders' meeting or was unable to attend due to refusal to participate, for example, it is not possible for him or her to state the exact legal claim. In this constellation, it is initially justified to allow an indeterminate form of action. The plaintiff only has to specify the resolutions that are the subject of the action for annulment once he or she is aware of the minutes.
A step action is an objective accumulation of actions within the meaning of Art. 90 CPC. Among other things, the same type of proceedings is required (see Art. 90 lit. b CPC). Actions for rescission and nullity take place either in ordinary or simplified proceedings (see Art. 219 and Art. 243 para. 1 CPC). It is questionable whether the right of inspection is asserted in summary proceedings. In the canton of Zurich, summary proceedings were conducted in one such case. On the one hand, the non-exhaustive list in Art. 250 CPC ("in particular") speaks in favor of this type of procedure and, on the other hand, even further-reaching information claims such as Art. 802 CO are assigned to summary proceedings in accordance with Art. 250 lit. c no. 7 CPC (argumentum a maiore ad minus). Due to the extensive and non-exhaustive list and the many conceivable constellations, the absence of Art. 702 para. 4 CO in the list in Art. 250 CPC does not imply a qualified silence on the part of the legislator. For this reason, it is advisable to assert the right of inspection as explained in the previous section as a precaution in the course of the evidentiary proceedings. Otherwise, parallel summary proceedings would have to be initiated, whereby the two-month forfeiture period must be observed with regard to the action for rescission (Art. 706a para. 1 CO; n. 85 et seq. above).
It should also be noted that, according to the Federal Supreme Court, the grounds for avoidance must also be submitted within the two-month forfeiture period (n. 85 above). If these grounds can only be stated with the minutes of the shareholders' meeting, an exception to this case law should be granted, according to which the initiation of the action for avoidance is sufficient for the time being.
169 If a public deed was issued for the shareholders' meeting, this provides full proof of the facts it attests to as long as the incorrectness of its content is not proven (Art. 9 Para. 1 CC and Art. 179 CPC). Furthermore, the notary is an impartial witness with regard to the notarized events. The parties to the proceedings may have the notary questioned as a witness. The parties may release the notary from the duty of confidentiality or the supervisory authority may waive it. In this case, the notary is generally obliged to testify. The notary cannot invoke a comprehensive right under professional law to refuse to testify, as is the case with lawyers (Art. 166 para. 1 lit. b CPC and Art. 13 para. 1 BGFA).
F. Admission of the claim and settlement
170 According to Art. 241 para. 2 CPC, an acknowledgment of claim or a settlement has the same effect as a legally binding decision. Such a procedure can be useful for the company in hopeless situations, for example, in order to avoid further costs. It is questionable to what extent an action for avoidance can be recognized by the company as the defendant. It is clear that the company represented by the management (Art. 706a para. 2 CO) is not authorized to recognize the action for avoidance without further ado. The management is not authorized to dispose of the object of the dispute. However, an acknowledgment of the action or an approved settlement approved by the shareholders' meeting would be possible according to the opinion expressed here. This approval can solve the problem of competence, according to which the management is not competent in matters of the shareholders' meeting (see Art. 804 para. 2 CO). In order to obtain the approval of the shareholders' meeting, the proceedings can be suspended (see Art. 126 para. 1 ZPO)
G. Intervention
171 Anyone who can credibly demonstrate a legal interest in having pending proceedings decided in favor of one party may intervene as an intervening party at any time (Art. 74 CPC). A shareholder has such a legal interest because he or she would also be affected by the favorable judgment (n. 97 and n. 134 above).
172 The procedural acts of the intervening person that contradict those of the main party are generally irrelevant in the proceedings (Art. 76 para. 2 CPC). According to the Federal Supreme Court, this does not apply in the case of a contentious intervening party. This is the case if the substantive law has direct effects not only between the main parties, but also vis-à-vis the intervening parties. The case before the Federal Supreme Court concerned organizational deficiency proceedings within the meaning of Art. 731b CO. According to Art. 819 CO, this standard is also applicable to the GmbH. As the Federal Supreme Court also mentions the action for avoidance in the same breath, it can be assumed that shareholders as intervening parties are not restricted by Art. 76 para. 2 CPC in such proceedings either. If, for example, the management does not contest or insufficiently contests the facts presented by the plaintiff in the action for avoidance, other shareholders can introduce factual assertions into the proceedings in their place and contest the factual assertions of the plaintiff in the action for avoidance (see also n. 160 f. above).
173 It is questionable whether the other shareholders must be informed of the proceedings by the court or the company. There is no explicit legal basis for this. Some scholars derive a duty of the court to provide information from the right to be heard (see Art. 29 para. 2 BV and Art. 6 no. 1 ECHR). For another part of the doctrine, there is no such right to information. Under German and Austrian law, the board of directors of the defendant company has a duty of disclosure, whereby according to the German Federal Supreme Court, the court must also ensure that it is heard.
In organizational deficiency proceedings - the decision of which also has an effect on the other shareholders - according to the Federal Supreme Court, the other shareholders are not granted ex officio party status or the right to be heard. It can therefore be concluded that the Federal Supreme Court would probably also deny such a right to information in actions for annulment and rescission.
The new company law requires a company, if an arbitration tribunal is provided for corporate law disputes, to ensure that the articles of association provide that those directly affected by the legal effects of the arbitration award are informed of the initiation and termination of the proceedings and can participate in the proceedings as interveners when the arbitration tribunal is appointed (Art. 797a in conjunction with Art. 697n para. 3 CO). This is intended to ensure the procedural guarantees of the rule of law. As these guarantees also apply in state court proceedings, the new company law is, in my opinion, all the more in favor of notifying the other shareholders. However, a legal basis has not been introduced.
H. Litigation costs
174 The amount in dispute is of great importance for determining the costs of proceedings and the type of proceedings. The value in dispute of an action for avoidance is based on the overall interest of the company. In the case of a capital increase, this is the amount of the capital increase. For many minority shareholders, the amount in dispute therefore exceeds the significance of their shareholding, which means that it is often too risky for them to take legal action.
175 Based on Art. 107 para. 1 lit. f CPC, the court can pass on a portion of the costs to the company if it prevails and there are special circumstances that make an allocation based on the outcome of the proceedings appear inequitable. However, the courts rarely make use of this option. A deviation is also possible if a shareholder was induced to conduct the proceedings in good faith (Art. 107 para. 1 lit. b CPC).
176 An action for avoidance can also be raised if a shareholder has been subject to a lack of good faith (see n. 20, n. 89 and n. 165 above). In contract law, Art. 26 para. 1 CO stipulates that the party in error, who does not accept the contract and is responsible for the error due to his own negligence, is obliged to compensate the damage resulting from the failure of the contract. In my opinion, this idea is to be applied analogously to the action for avoidance insofar as a negligently mistaken shareholder must also bear the costs incurred in this regard (see Art. 107 para. 1 lit. f CPC).
177 According to Art. 108 CPC, unnecessary costs must be paid by the person who caused them. Based on this provision, costs can also be imposed on third parties who are not parties to the proceedings. An outsider who convenes a shareholders' meeting may be ordered to pay the costs of the subsequent proceedings. The Commercial Court of the Canton of Zurich imposed the costs on two members of the Board of Directors who, contrary to Art. 695 CO, did not abstain from voting on the discharge, although the plaintiff pointed this out.
I. Legal remedies
178 The decisions of the Commercial Court may be appealed to the Federal Supreme Court in civil matters. In other cases, an appeal against the decision of the court of first instance is possible from an amount in dispute of CHF 10,000 (see Art. 308 para. 2 CPC). In the rare cases of an amount in dispute of less than CHF 10,000, an appeal is only possible to the higher cantonal court (see Art. 319 lit. a CPC). An appeal against the decision of the second instance is then possible under the conditions of Art. 72 ff. BGG, an appeal in civil matters may be lodged with the Federal Supreme Court.
J. Precautionary measures
179 Resolutions of the shareholders' meeting can take effect even before they are contested. By means of precautionary measures, a plaintiff can prevent the execution of a resolution of the shareholders' meeting by the management (see Art. 810 para. 2 no. 6 CO; see above n. 12 and below n. 203). To ensure that a plaintiff is not faced with a fait accompli, he or she should in most cases attempt to obtain precautionary measures (on the reversal of resolutions, see n. 200 et seq. below).
180 As a rule, a request for measures does not affect the expiry of the two-month forfeiture period within the meaning of Art. 706a para. 1 CO (see n. 85 et seq. above). If the action is not yet pending in the main proceedings, the court should take into account the forfeiture period pursuant to Art. 706a para. 1 CO when setting the deadline for the action pursuant to Art. 263 CPC, because otherwise the action has no prospect of success anyway. The action for avoidance must in any case be abandoned before the expiry of the forfeiture period. If the applications in the avoidance proceedings and the grounds for avoidance are already contained in the application for measures, it would be conceivable to comply with the forfeiture period. This would include a provisional declaration of invalidity of the decision.
In contrast, there is generally no time limit for an action for annulment (see n. 132 f. above). However, in order to quickly clarify the validity of the decision, the court must also set a prosequencing period that is not too long in the case of an action for annulment.
In addition, the setting of such a prosequencing period means that the conciliation procedure is no longer necessary (Art. 198 lit. h CPC; on the conciliation procedure, see n. 150 et seq. above).
181 Pursuant to Art. 264 para. 2 CPC, the plaintiff is liable for the damage resulting from an unjustified precautionary measure. If the plaintiff proves that the application was made in good faith, the court may reduce the obligation to pay compensation or release it entirely (Art. 264 para. 2 CPC). The plaintiff in the action for annulment may therefore be subject to a high cost risk. If, for example, the implementation of an increase in the share capital is prevented, the plaintiff in avoidance owes compensation for the damage that may result, for example, from the raising of outside capital.
1. General requirements for an order
182 Pursuant to Art. 261 para. 1 CPC, the prerequisites are, on the one hand, that the action for rescission is likely to be successful (lit. a; claim for injunction; N. 183) and, on the other hand, that the implementation of the contested resolution cannot be reversed without further ado (lit. b; reason for injunction; N. 184). Furthermore, the order requires urgency (n. 185 f.) and proportionality (n. 187). The applicant must substantiate these requirements (see Art. 261 para. 1 CPC.
a. Entitlement to an injunction (main issue prognosis)
183 The petitioner must be able to credibly demonstrate that the order suffers from a defect that leads to invalidity by means of an action for annulment or that the order is even null and void. It must be noted here that the terms "improper" and "unjustified" in Art. 706 para. 2 no. 2 and no. 3 are to be interpreted by the court in the main proceedings and that there is a certain (judicial) margin of discretion. It is therefore sufficient if a ground for contestation appears plausible.
b. Reason for the injunction (prognosis of disadvantages)
184 In order for the court to approve the application for a measure, the applicant must be threatened with a disadvantage that cannot be easily remedied if the precautionary measure is not ordered. This is always the case if a resolution is to be entered in the commercial register with constitutive effect. A declaratory entry in the commercial register entails the effects provided for in Art. 936b CO and can therefore also be of significance.
c. Urgency
185 Furthermore, the ordering of a precautionary measure requires urgency. Urgency exists, for example, if a resolution is to be entered in the commercial register with constitutive effect. There is a lack of urgency if the same objective can be achieved by the decision in the main proceedings.
186 In cases of particular urgency, especially if there is a risk of frustration, the court may order the measure immediately and without hearing the other party (Art. 265 para. 1 CPC). The applicant must explicitly apply for a super-provisional measure. If there is a delay of several days, the special urgency can regularly be denied.
d. Proportionality
187 Proportionality as a further requirement can be implicitly inferred from Art. 262 CPC ("suitable"). A measure is proportionate if it is suitable and necessary and if a weighing of the relevant interests speaks in favor of ordering it.
2. Judicial blocking of the commercial register
188 Of central importance as a precautionary measure is the blocking of the commercial register by the court (Art. 262 lit. c CPC). The commercial register block, which could be obtained directly by filing a written objection with the Commercial Register Office, has no longer existed since January 1, 2021 (see Art. 162 f. aHRegV). This is a (super-provisional) precautionary measure for instructing a register authority within the meaning of Art. 262 lit. c CPC. Since the EHRA (due to the approval of the applications entered in the cantonal daily register) and SECO (due to the publication in the SOGC) are also involved in the commercial register registration process, it is also advisable to apply for a corresponding instruction to these authorities. The purpose of a court order to block the commercial register is to ensure that the disputed resolution of the shareholders' meeting is not entered in the commercial register as a precautionary measure and therefore is not published in the SOGC. The commercial register block secures the status quo. A judicial commercial register block is possible for entries with constitutive as well as declaratory effect.
189 Since the filing and entry of a resolution of the shareholders' meeting can be carried out quickly with appropriate preparation in advance, it is advisable to apply for the blocking of the commercial register on a super-provisional basis (see Art. 265 para. 1 CPC; also n. 186 above). In the case of a constitutive entry, this urgency is given per se. In the case of declaratory entries, the particular urgency should also be justified. For example, there is no disadvantage in registering a new member of the management if another member of the management with sole signature could grant the new member of the management a special power of attorney at any time anyway.
190 To ensure that an application is not registered by the Commercial Register Office, it is advisable for the applicant and/or the court to inform the Commercial Register Office of the super-provisional measure application by telephone or email upon receipt of the application. In addition to the (electronically submitted) application, the applicant should also inform the court by e-mail or telephone of the super-provisional court order to block the commercial register so that the court can take the proceedings with the necessary urgency. The court should inform the cantonal commercial register office, the EHRA and, if applicable, SECO in advance by telephone or e-mail.
191 A commercial register block can be annoying for the company. A company can defend itself preventively against a commercial register block by filing a protective letter with the court (see Art. 270 CPC).
192 In connection with the entry in the commercial register, Müller proposes the "protective writ" in proceedings before the commercial register office. This author explains that a protective letter or a preventive statement can be submitted to the cantonal commercial register office in order to influence the one-party procedure for entry in the commercial register. This should set out the facts of the case or the position of a shareholder in order to prevent the potential entry in the commercial register. This is intended to prevent an entry being made that is based on materially incorrect facts (see Art. 929 para. 1 CO). As the persons who submit a protective letter to the commercial register office cannot rely on the protective letter or a preventive statement preventing an entry in the commercial register, it is also advisable to initiate parallel proceedings to obtain the court order blocking the commercial register as described above.
3. Prohibition
193 Another precautionary measure that can be considered is an interdict (Art. 262 lit. a CPC). It would be conceivable, for example, to prohibit the company from implementing a contested resolution. A prohibition can be linked to the threat of punishment under Art. 292 StGB. As the company as a legal entity is not covered by Art. 292 StGB, the prohibition must be directed against the executive bodies. The relevant persons must be informed of the prohibition so that a penalty can be imposed if the prohibition is violated.
4. Appeals against decisions on measures
194 Decisions of the court of first instance on precautionary measures may be appealed if the value in dispute exceeds CHF 10,000 (Art. 308 para. 1 lit. b and para. 2 CPC). Otherwise, an appeal is possible. In both cases, the appeal period is ten days (Art. 314 para. 1 and Art. 321 para. 2 CPC). An appeal has no suspensive effect as long as the appellate instance does not grant it (Art. 315 para. 4 lit. b and para. 5 as well as Art. 325 CPC).
195 An appeal in civil matters to the Federal Supreme Court is only admissible against decisions on interim measures of a commercial court or appeal decisions of the higher cantonal court if the decision may cause a disadvantage within the meaning of Art. 93 para. 1 lit. a BGG that cannot be easily remedied. This disadvantage must be set out in the notice of appeal. The appeal may only allege a violation of constitutional rights (Art. 98 BGG).
K. Arbitration
196 Since the revision of company law came into force on January 1, 2023, Art. 797a CO refers to Art. 697n CO with regard to statutory arbitration clauses. Accordingly, an arbitral tribunal with its seat in Switzerland can be provided for in the articles of association for actions for avoidance and nullity (Art. 697n para. 1 CO). A qualified quorum is required for the introduction of an arbitration clause in the articles of association (Art. 808b para. 1 no. 10bis CO). Art. 697n para. 2 CO refers to Art. 353 et seq. CPC and the applicability of Art. 176 et seq. IPRG is excluded.
197 The arbitral tribunal hearing the action for avoidance may also appoint the legal representative within the meaning of Art. 706a para. 2 CO (see n. 155 et seq. above). When formulating the arbitration clause in the articles of association, it is advisable to explicitly cover matters of voluntary jurisdiction such as the appointment of legal representation.
198 The arbitral tribunal is also authorized - unless otherwise agreed by the parties - to issue interim measures (Art. 374 para. 1 CPC). Although not explicitly mentioned in Art. 374 CPC, an arbitral tribunal can also take superprovisional measures. In my opinion, the court-ordered blocking of the commercial register can also be ordered by an arbitral tribunal if this is possible in terms of time (e.g. by an emergency arbitrator). If a person concerned does not voluntarily submit to a measure ordered by the arbitral tribunal, the state court must make the necessary orders at the request of the arbitral tribunal or a party (Art. 374 para. 2 CPC).
199 Pursuant to Art. 697n para. 3 CO, the articles of association must ensure that persons who may be affected by the legal effect of the arbitral award (see Art. 706 para. 5 CO; see above n. 97 f. and n. 134 as well as above n. 171 ff. on intervening parties) are informed of the initiation and termination of the proceedings and may participate in the appointment of the arbitral tribunal and as interveners in the proceedings.
VII. Reversal of the decisions
200 It is questionable how to deal with resolutions whose legal basis either never existed in the first place (in the case of the nullity of a resolution of the shareholders' meeting; n. 11 and n. 134 above) or whose legal basis has subsequently ceased to exist ex tunc (in the case of the successful challenge of a resolution of the shareholders' meeting; n. 10 and n. 96 above). Such a situation may arise, for example, if new ordinary shares were subscribed based on a void or contestable capital increase resolution and a corresponding entry was made in the commercial register. This problem can also arise in the case of void or voidable resolutions on the election of members of the management. In order not to go beyond the scope of this commentary, this section merely describes a few points of reference on this topic.
201 In the event of a successful challenge, a judgment is issued which retroactively revokes the resolution of the shareholders' meeting, rendering this resolution ex tunc invalid (n. 10 and n. 96 above). If an action for annulment is upheld, the court declares the resolution ex tunc invalid in the declaratory judgment (n. 11 and n. 134 above). Both declaratory and declaratory judgments are not subject to enforcement. However, subsequent actions may be necessary after the judgment which are not of an enforcement nature. This includes the reversal of the individual orders (see n. 17 f. above). The order itself does not require reversal. If the plaintiff or the claimant succeeds in preventing the occurrence of certain consequences of the decision by means of precautionary measures, reversal can be avoided.
202 A distinction can be made between rescission in the narrow sense and rescission in the broad sense. Reversal in the narrow sense leads to the situation being created as if the resolution of the shareholders' meeting had never been passed. In most situations, however, there is a barrier that prevents a reversal in the narrow sense. The judgment in an action for rescission that is upheld and the declaratory judgment in an action for annulment that is upheld are also effective against shareholders and third parties who are not involved in the proceedings (see n. 97 f. and n. 134 ff. above). Their trust in the validity of the resolution of the shareholders' meeting is often protected by the legal system (e.g. curative effect of the entry in the commercial register [Art. 779 para. 2 CO by analogy] as well as the public faith of the commercial register [Art. 936b para. 3 CO]). Such barriers prevent a reversal in the narrower sense from being possible. In these cases, only a reversal in the broad sense is possible. In this case, the resolutions are only rescinded with effect ex nunc. This type of reversal is carried out by means of a mirror-image measure (contrarius actus). A capital increase would therefore have to be reversed by means of a capital reduction. If the company is unwilling to reverse the transaction, the shareholders should be given the opportunity to sue for rescission (so-called rescission action). The judgment in an action for rescission should also be able to contain certain instructions to the commercial register office (see also n. 204 below).
203 According to Art. 810 para. 2 no. 6 CO, the management must implement the resolutions of the shareholders' meeting. The doctrine derives from this competence that the management is also responsible for restoring the situation that would have existed if the invalidity of the resolution had been observed from the outset. In doing so, the management is bound by the legal justification of the judgment. The management must therefore also determine whether a reversal in the narrow sense is possible. If a reversal in the narrow sense is not possible, the management must convene a shareholders' meeting for the mirror-image measure, such as a capital reduction (on reversal in the broad sense, see n. 202 above).
204 It is fundamentally questionable to what extent courts and commercial register offices are involved in the reversal with regard to the effects under commercial register law. For example, it is unclear whether the court must forward a judgment that approves the action for rescission or nullity to the commercial register office or whether certain instructions can be issued to the commercial register office. Pursuant to Art. 240 CPC, the judgment is notified to the authorities and third parties concerned if there is a legal basis for this or if the notification serves the purpose of enforcement. There is no legal basis for this. In addition, judgments of configuration and declaratory judgments do not require enforcement (see n. 201 above). Thus, in the opinion of the commentator, an instruction to the cantonal commercial register office is not possible. The Commercial Court of the Canton of Bern has communicated a corresponding judgment to the Bernese Commercial Register Office - without issuing specific instructions - and mentioned that this will have the same effect as a formal instruction. The Commercial Court of the Canton of Zurich states that the action for annulment has a direct legal effect, which is why there is no need to instruct the Commercial Register Office. Therefore, the judgment only needs to be communicated. In another case, the Commercial Court of the Canton of Zurich mentioned that the corresponding judgment will be communicated to the Commercial Register Office after the expiry of the appeal period, subject to a suspensive effect of the appeal to the Federal Supreme Court (Art. 103 para. 2 lit. a or para. 3 BGG) due to a commercial register block. These judgments are in principle contrary to Art. 19 para. 1 HRegV, according to which the court must submit a judgment to the commercial register office if it orders the entry of certain facts. It is problematic that the case law leaves the consequences under commercial register law to the commercial register office and does not provide for a court order. It should also be noted that commercial register offices are law-enforcing authorities. They can only register legal transactions that are clearly and unambiguously documented. To claim otherwise would thwart the function of the commercial register, which is precisely that any person can inspect the corresponding entries and supporting documents for each commercial register entry at the commercial register office without having to provide special proof of interest (Art. 936 CO and Art. 11 para. 1 and Art. 12 HRegV). Finally, it should be noted that if a legal transaction is finally to be taken into account in the commercial register - several years later - once a dispute has been finally resolved, other resolutions may have rendered the earlier dispute obsolete in the meantime.
On the basis of the disposition maxim (n. 162 f. above), the plaintiff or the claimant should, if a notification to the commercial register office is permissible at all - as in the aforementioned decision - submit a corresponding request. According to the view expressed here, the plaintiff itself would have to notify the Commercial Register Office of the judgment because notification by the court is not possible. In the case of such a notification, the judgment does not contain any specific instructions to the Commercial Register Office. The commercial register office finds itself in an uncomfortable situation (for reasons of state liability law, among others) because the disputing shareholders may not agree on the consequences of the judgment in the commercial register. De lege ferenda, the legislator should provide clarity in this regard.
The commercial register office must take the nullity into account ex officio as part of its cognizance (see n. 13 above). Accordingly, the Commercial Register Office can only intervene in cases where mandatory legal provisions must be observed that have been established in the public interest or for the protection of third parties. The interpretation of the law is generally left to the court. The Commercial Register Office therefore only has to intervene ex officio in exceptional cases.
VIII. Contestability and nullity in connection with the Covid-19 pandemic
205 The special regulations on meetings under company law due to the Covid-19 pandemic were in force until December 31, 2022. The corresponding standards must be observed in proceedings based on resolutions passed at shareholders' meetings during this period (see Art. 1 para. 1 SchlT CC). Pursuant to Art. 8 aCovid-19 Act, the Federal Council could, if necessary, issue deviating provisions for the exercise of rights in company meetings regarding the exercise of rights in writing or in electronic form (lit. a) or by an independent proxy (lit. b). In Art. 27 para. 1 aCovid-19 Ordinance 3, the Federal Council stipulated that the organizer of shareholders' meetings may provide that the shareholders may exercise their rights in writing or electronically (lit. a) or through an independent proxy designated by the organizer (lit. b), irrespective of the expected number of participants. This instruction must be communicated in writing or published electronically no later than four days before the shareholders' meeting (Art. 27 para. 2 aCovid-19 Ordinance 3). The relevant date is the date of posting as for the regular convocation period (see above n. 87). This date, as well as the date of the shareholders' meeting, should not be counted (see n. 87 above). Temporarily, a restriction of the shareholders' right to participate was therefore permissible. However, access to a virtual shareholders' meeting could not be denied or made disproportionately difficult. Depending on the degree of severity, nullity or voidability existed. With the notice period of four days, in my opinion, unintentionally missing the deadline by one day should only lead to contestability (see n. 53 and n. 114 above regarding the notice period). According to the Federal Supreme Court, the refusal to admit a motion when holding a written general meeting is contestable. In this context, normative causality is a prerequisite for the formal grounds for contestation (n. 48 f. above).
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