You have just been appointed or elected. Your duties under Art. 717 OR engage from the moment of acceptance. “I was new” is not a defence. What to do in the six weeks before your first meeting.
Situational briefings for boards
Fourteen canonical situations, each framed in the register of the board table.
A world-class board member does not arrive at the work asking what Art. 717 OR says. They arrive asking what to do on Thursday — about the dividend, the whistleblower note, the FINMA letter, the minority shareholder’s information request. The reference articles state the law. The commentary tracks the cases. This section does the work between — translating from doctrine into the decisions that sit on a board agenda.
Each Agenda page follows the same seven-part structure: the situation stated in a single paragraph; the duties that bear on it; the process a disciplined board follows; the questions to ask management; the record the board should leave; the failure modes, anchored to real Swiss and comparative cases; and deep references back into doctrine and commentary for anyone who wants the scholarly architecture of an answer. The design premise is that most of a board’s real work is on a small number of recurring situations, each of which rewards preparation, and that the preparation can be structured.
The board in ordinary times
- Director onboarding
- Executive dismissal and compensation
Setting, revisiting, or terminating senior-executive arrangements. The intersection of duty-of-care, loyalty, the VegüV regime for listed companies, and the conflict-structure that determines defensibility.
- Conflict-of-interest transactions
Related-party deals, controlling-shareholder supply agreements, director-affiliated mandates. Where Swiss doctrine is at its most literal, and where minor procedural short-cuts produce major liability exposure.
- The annual cycle — statements, audit, discharge
The cadence of the Swiss AG: financial statements, audit, general meeting, discharge (Entlastung). What to actually do with the audit management letter, and why discharge is a narrower shield than boards are told.
The board facing a decision
- Dividend or distribution with a foreseeable liability
The classic Swiss liability trap. Formally lawful distribution, substantial contingent exposure known at the time, insolvency years later — and directors personally liable under Art. 754 OR. The Papierschlamm decision is the reason this page exists.
- M&A, sell-side
Process is doctrine. Swiss law does not name a Revlon duty but its Art. 717 care standard polices the sale process just as strictly where management retention or controlling-shareholder alignment has shaped the field.
- Subsidiary oversight across borders
A Swiss parent’s oversight responsibility does not stop at the Swiss border. A UK, Delaware, or German sub-board operates under its own duties — and on comparable facts, the foreign standard may be more or less exacting. The Sequana commentary shows where the differentials bite.
- AI deployment — greenlight, expansion, retirement
When an AI system meaningfully intermediates customer decisions, product safety, or financial outcomes, oversight moves to the board. The Marchand mission-critical framing applied through Art. 716a(1)(5) OR.
The board in distress
- Regulatory investigation opens
FINMA, the Public Prosecutor, or a foreign authority serves. The decisions taken in the first seventy-two hours set the framework for the next three years. Counsel separation, document preservation, the cooperation calculus.
- Whistleblower report arrives
An anonymous note, an employment-lawyer letter, a board-portal submission. A closed-without-investigation whistleblower report is worse for the company than no whistleblower channel at all.
- Shareholder dissent and derivative threat
A letter from a minority demanding information, or signalling a special-investigation petition or Art. 754 claim. How to read the specific rung of the remedy ladder the shareholder is currently on — and why over- and under-responding are both mistakes.
- Capital loss or over-indebtedness proximate
Approaching a Art. 725a / 725b OR trigger. Graduated procedural duties; criminal exposure for delay in court notification; distributions in the shadow of over-indebtedness are the classic liability pattern.
- Civil litigation commenced
A claim is served. D&O notice, document hold, counsel engagement, privilege protection, settlement framework. What the first board meeting after service needs to decide.
- Cyber or data incident
Breach detected, notification obligations triggered under the revised nDSG, potentially under GDPR, potentially under FINMA sector-specific rules. Seventy-two hours to decide, and the decisions are the board’s.
Every Agenda page is a first draft prepared for author review. The doctrinal positions rest on the reference articles and commentary entries; both are linked at the foot of each page.