Switzerland, Badertscher Attorneys at Law updates

Corporate & Commercial

Contributed by Badertscher Attorneys at Law
Federal Supreme Court: negative interest in loan agreements
  • Switzerland
  • 13 April 2020

The Federal Supreme Court recently dealt with the question of whether the interest payment obligation in loan agreements can be reversed due to the introduction of negative interest. For the first time the court has held that, unless the parties have agreed otherwise, the obligation to pay interest under a loan agreement cannot be shifted to the lender.

Enforcing board members' information rights
  • Switzerland
  • 25 March 2019

The Federal Supreme Court recently considered – for the first time – whether board members' rights to information, inspection and insight can also be asserted on an appeal basis. The court also commented on the type of procedure applicable in such cases. This decision should be taken into account by board members who lack evidence or knowledge of important or necessary information, particularly if it relates to the organisation of or disputed relationships within the board of directors.

Shareholders' agreements for closely held companies under Swiss law
  • Switzerland
  • 13 November 2017

Shareholders of closely held companies often mutually agree on additional contractual rights and duties. However, the company itself cannot be a contract party to a separate shareholders' agreement. Apart from that legal restriction, such shareholders' agreements usually benefit from the contractual freedom of the parties. A recent Federal Court decision confirmed that such agreements may be recharacterised as abusive or contrary to the principle of good faith.

Interpretation of company articles in Sika takeover battle
  • Switzerland
  • 22 May 2017

A recent Zug Cantonal Court decision sheds light on the way that Swiss company articles of association must be interpreted under Swiss company law in cases in which they are not only applicable internally among a few shareholders, but also have an effect on third parties. The decision confirms that the observation of merely the letter and not the spirit of company articles by a company board or majority company shareholders in a general meeting can even amount to an abuse of law.

New Federal Court decision on business judgement rule
  • Switzerland
  • 05 September 2016

A recent Swiss Federal Court decision clarified the circumstances under which the personal liability of board members or managers of a Swiss company for their business decisions and omissions can be reduced by applying the so-called 'business judgement' rule or, if the related prerequisites are not met in a particular case, based on other grounds.


Insurance

Contributed by Badertscher Attorneys at Law
Are the effects of the COVID-19 pandemic insured? Ombudsman commissions legal expert's opinion
  • Switzerland
  • 30 June 2020

After spreading from Wuhan to Switzerland in less than three months, the COVID-19 crisis is creating major challenges for Swiss insurers, particularly with regard to whether insurance coverage for the effects of an epidemic also apply to a pandemic. The Swiss Ombudsman of Private Insurance recently commissioned Law Professor Dr Walter Fellmann to issue a legal opinion regarding selected epidemic insurance wordings. This article discusses the conclusions of Fellmann's legal opinion.

Forfeiture clauses versus statute of limitations
  • Switzerland
  • 24 September 2019

The Federal Supreme Court recently addressed the relationship between a contractual forfeiture clause under Article 46(2) of the Federal Insurance Contract Act and the statutory limitation period for insurance claims. Among other things, this decision reconfirms previous case law, according to which forfeiture clauses such as the one at issue are customary in the insurance industry. It also confirms that a contraction forfeiture clause may exist alongside the statutory limitation period.

Insurance Supervision Act partially revised
  • Switzerland
  • 28 May 2019

The Insurance Supervision Act regulates the federal supervision of insurers and insurance intermediaries in Switzerland. Since its enactment in 2006, it has been subject to only selective amendments. However, developments in recent years have made partial revisions to the act necessary. Therefore, the Federal Council recently issued a consultation draft and invited interested parties to submit their comments.

Insurers' contractual obligations in case of fraudulent claims
  • Switzerland
  • 25 September 2018

Under the Insurance Contract Act, insurers are not bound by a contract if, for deception purposes, the insured party incorrectly notifies or conceals facts from the insurer which would exclude or reduce the insurer's obligation to provide indemnification. Insurers can therefore refuse payment and withdraw from such contracts. The Federal Supreme Court recently confirmed this to be true even if an insured party does not make false statements directly to the insurer, but rather to a medical doctor who confirms their inability to work.

Right of recourse in insurance law: end of Gini/Durlemann practice
  • Switzerland
  • 26 June 2018

The Supreme Court recently abandoned its long-standing practice of restricting recourse under the Gini/Durlemann doctrine, which was first adopted in 1954. The court held that any non-contractual liability falls within the meaning of 'prohibited act', including all facts standardised as hazardous or simple causal liability. Private insurers must therefore be treated the same as social insurance carriers with respect to the causally liable party that causes an accident.


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