The author of this article, MLaw Dr. phil. Tetyana Miller, is legal counsel at Dr. J. Bollag & Cie. AG and specialises in corporate law.
The Federal Council brought the new company law adopted in 2020 into force effective 1 January 2023. At the same time, the Commercial Register Ordinance was amended.
The Essentials of Swiss Corporate Law reform
- More flexible capital regulations: The share capital may now also be denominated in USD, EUR, GBP or JPY if the respective currency is essential for the company’s business activities. The nominal value of a share may now be less than 1 centime. A currency change is possible prospectively or retrospectively at the beginning of a financial year. Instead of the authorised capital increase, the statutory instrument of the so-called capital band will be introduced, which authorises the Board of Directors («BoD») for a maximum period of five years to increase or decrease the share capital within a range.
- Flexibility in the conducting of the general meeting («GM») and in the passing of BoD resolutions: It should now also be possible to hold the general meeting virtually or abroad. The possibility of a virtual general meeting was already introduced during the Corona pandemic by COVID 19 Ordinance 2 and extended by COVID 19 Ordinance 3 until the entry into force of the new company law. However, if one wishes to continue to benefit from the possibility of a virtual general meeting under the new company law, a statutory basis is required and, in principle, an independent proxy must be appointed. The general meeting can be held at several locations at the same time or even abroad, whereby the latter requires a basis in the articles of association. The determination of the place of the meeting must not make it unreasonably difficult for any shareholder to exercise his or her rights. In addition, board resolutions may now be passed in electronic form.
- Clearer rules in the event of impending insolvency and over-indebtedness: The duty of the board of directors to monitor solvency and initiate restructuring measures in the event of imminent insolvency is expressly included in the law. The law already provided for a duty of the board of directors to act if the company is overindebted or there is a corresponding concern. The conditions under which the notification of the bankruptcy court can be omitted in the case of over-indebtedness of the company are now clearly defined.
What should shareholders do?
The new company law brings more flexibility and possibilities. The current articles of association of the companies regularly do not yet reflect these new possibilities. In addition, articles of association and regulations that do not comply with the new law must be amended by 31 December 2024 at the latest. We therefore recommend that the articles of association and regulations be examined in good time and that a decision be made as to which options are to be used. The statutes can also be adapted already this year. In the case of provisions that will only be permissible from the new year onwards, it should be stated in the articles of association that these provisions will only come into force on 1 January 2023, or the application to the commercial register should be delayed.
How can we be of assistance to you?
Contact us today to find out how we can secure your rights and maximise your opportunities to act.