Dated notes on significant rulings as they are handed down.
Commentary entries are dated notes on decisions of the Swiss Federal Supreme Court and, selectively, the cantonal commercial courts that matter for corporate governance. Each entry places a decision in its doctrinal context and discusses the implications for boards. Entries often update the corresponding reference article; when they do, the article’s last materially updated date moves and a changelog entry records the change.
Alongside Swiss entries, the stream includes comparative commentary — decisions from the UK, Delaware, Germany, the Netherlands, and the European courts — transposed to Swiss law. Comparative entries carry a jurisdiction tag; Swiss entries are unmarked.
The Federal Supreme Court overrules its earlier approach (6B_1422/2019) and holds that an over-indebted company can still be harmed within the meaning of Art. 158 StGB when its assets are further reduced contrary to fiduciary duty. A material tightening of the doctrine for closely-held and owner-managed Swiss companies.
Updates Director Duties under Swiss Law and Corporate Criminal Exposure.
The Papierschlamm case (17 December 2024). Joint and several personal liability of the formal vice-chair and the accounting-firm partner who served as de facto director, each held responsible under Art. 754 OR for a CHF 2.15 million distribution to the parent company while an environmental liability of CHF 8.55 million was foreseeable. Instructive on reserves for contingent liability, on the reach of the faktisches Organ doctrine, and on Art. 260 SchKG as the practical enforcement route.
Updates Director Duties under Swiss Law and Litigation Readiness for Swiss Boards.
Chancellor McCormick’s rescission of the $55.8 billion 2018 Musk compensation package (310 A.3d 430 (Del. Ch. 2024)) on entire-fairness review — followed in December 2024 by her ruling that a subsequent shareholder ratification could not cure the original process defect. Swiss law addresses much of the same ground ex ante through the 2023 reform’s procedural gates in Art. 732 ff. OR: mandatory compensation committee, binding shareholder vote on aggregate compensation, categorical prohibitions on specific structures. Residual Swiss risks — committee capture, abuse-of-majority voting — sit in Art. 706 OR territory.
Comparative reading; relates to Director Duties under Swiss Law and the executive-dismissal and compensation agenda.
The UK Supreme Court’s landmark ruling ([2022] UKSC 25) formally recognises a directors' duty to consider creditors' interests as insolvency approaches. On comparable facts, Swiss law — through the Art. 717 OR duty to form reserves for foreseeable liabilities — engages earlier than the UK’s verge-of-insolvency trigger. Cross-border groups should not assume symmetrical standards.
Comparative reading; relates to Director Duties under Swiss Law and the Papierschlamm commentary on the close Swiss analogue.
Chief Justice Strine’s unanimous revival of Caremark oversight liability (212 A.3d 805 (Del. 2019)) on the Blue Bell listeria facts. Directors must implement and monitor a board-level information system for mission-critical risks; management-level compliance does not suffice. Swiss law arrives at the same expectation earlier and on a sterner route: Art. 716a(1)(5) OR Oberaufsicht plus Art. 717 OR objective care, without the Delaware bad-faith gloss, with reach to faktische Organe.
Comparative reading; relates to Director Duties under Swiss Law, Corporate Criminal Exposure, and Board Duties in the Governance of AI Systems.
The German Bundesgerichtshof’s landmark ruling (BGHZ 135, 244) on when a supervisory board must investigate and pursue claims against executive directors — and the narrowly circumscribed business-interest reasons that permit non-pursuit. A Swiss successor board reaches the same question through Art. 717 OR's duty to protect the company’s assets (claims included); the German standard maps cleanly onto Swiss doctrine and sharpens what “reasoned non-pursuit” must look like on the record.
Comparative reading; relates to Director Duties under Swiss Law, Shareholder Disputes, and the Papierschlamm commentary on the Swiss Art. 260 SchKG enforcement track.
For the primary sources from which commentary entries are written, see opencaselaw.ch.