Legally enforceable right of Board of Directors of Swiss companies to receive information and to inspect the files

On 20 March 2018, the Swiss Federal Tribunal (SFT) posted an interesting decision on its website, dated 28 February 2018 (case number: 4A_364/2017), which it marked as a leading case that is to be published in the SFT’s compilation of precedents.

In a very compressed fashion, the relevant dispute was based on the circumstance that a member of the board of directors (BoD) of a Swiss stock corporation filed a civil action with the competent court to require the stock corporation to grant him extensive access to its business records. This granting of information had been refused to the claimant by the other BoD members.

Prior to this new precedent, it was disputed among Swiss legal scholars whether Art. 715a of the Swiss Code of Obligations (CO), which states, in particular, that “[a]ny member of the board of directors may request information on any company business“, grants BoD members a legally enforceable individual right to enforce the granting of information through the courts in the event of refusal. In its new leading case, the SFT examined this disputed issue and concluded that Art. 715a of the CO contains such an individual right of action for performance (Leistungsklage) (see, particularly, consideration 5.2.3.2 of the precedent).

One key consideration of the SFT in its interpretation of the above-mentioned provision is the general principle that if the law grants a claim, it is generally to be assumed that this can be enforced in court, even if this is not expressly stated in the relevant legal provision, such as in Art. 715a of the CO (see consideration 5.2.3.1 of the precedent; “Wenn das Gesetz einen Anspruch gewährt, ist grundsätzlich davon auszugehen, dass dieser auch gerichtlich durchgesetzt werden kann, auch wenn dies nicht ausdrücklich gesagt wird.“).

When examining a claim for information based on Art. 715a of the CO, the court has to determine whether or not the claimed rights of information exist in light of the specific circumstances, namely whether the requested information is necessary to fulfil the BoD mandate (see consideration 5.2.3.2 in fine of the precedent). In the event of a former BoD member, the court has to determine whether after termination of the mandate there is still a sufficient connection (for example due to disputed liability or fee claims) which justifies the granting of the requested information claim in an independent procedure, or whether the claim for information by the former member of the BoD is to be rejected because of preponderant (secrecy) interests of the company (Id.).

Another interesting determination made by the SFT in this new leading case is the question whether civil actions based on Art. 715a of the CO are to be heard in ordinary or summary civil proceedings. Mainly because of the flexibility and speed of summary proceedings, the SFT ruled that information claims based on Art. 715a of the CO are to be dealt with in summary proceedings pursuant to Art. 252-255 of the Swiss Code of Civil Procedure (see consideration 6 of the precedent). The SFT specified in this regard that summary proceedings related to Art. 715a of the CO are “atypical” in that the required level of proof is not reduced to the court’s prima facie conviction, and that the purpose of the proceedings may require the admissibility of evidence other than documents (Id.). According to the SFT, the characteristic of such atypical summary proceedings is limited to the acceleration of the proceedings.

It would go beyond the scope of this post to examine and discuss in detail this important new SFT precedent. Without a doubt, this precedent will provoke an important number of comments by Swiss law scholars. That said, what in my opinion can already be said at this point is that this judgment is likely to be of some importance in practice, as I believe that company law disputes have recently taken place more frequently before the courts.

This article has first been published on LinkedIn on 21 March 2018.

Rechtsgebiete: Gesellschaftsrecht inkl. Vereinsrecht