Swiss corporate-governance terms

The governing body of a Swiss stock corporation (Aktiengesellschaft / société anonyme). Its non-delegable duties are set out in Art. 716a OR. Members owe a duty of diligence and loyalty to the company under Art. 717 OR.

See Director Duties under Swiss Law.

The executive tier below the board, to which the board may delegate day-to-day operational management under Art. 716b OR and the company’s organisational regulations (Organisationsreglement). Delegation does not relieve the board of its supervisory duties.

A director’s duty to act in the interests of the company, prohibiting conflicts of interest, misappropriation of corporate opportunities, and acting for a particular shareholder against the company’s interest. One of the two core duties codified in Art. 717 OR.

The obligation to exercise the care that a reasonably diligent director would exercise in comparable circumstances. Codified alongside the duty of loyalty in Art. 717 OR. The Swiss Federal Supreme Court has progressively articulated a doctrine that resembles, without precisely replicating, the common-law business-judgment rule.

A civil action against directors, officers, or liquidators for damages caused by breach of their statutory or fiduciary duties. Governed by Art. 754–760 OR. Can be brought by the company, by shareholders, and (in bankruptcy) by creditors or the bankruptcy administration.

A resolution of the general meeting releasing the board from liability for a specified financial period. Binds the company and those shareholders who voted in favour (Art. 758 OR); does not bind the company in insolvency or shareholders who opposed.

The supreme corporate body of the Swiss stock corporation. Its non-delegable powers — including appointment of the board, approval of financial statements, and declaration of discharge — are set out in Art. 698 OR.

An action to set aside a resolution of the general meeting that violates the law or the articles, under Art. 706 OR. Must be brought within two months of the resolution; standing is available to the board and to individual shareholders.

See Shareholder Disputes under Swiss Law.

A judicially ordered investigation of specific matters concerning the company’s management, available to shareholders under Art. 697c–697g OR when ordinary information rights prove insufficient. The shareholder moves at the general meeting (Art. 697c) and, on rejection, may petition the court (Art. 697d). The 2023 stock-corporation reform lowered the petitioning thresholds to 5% of share capital or voting rights for listed companies and 10% for non-listed companies. A meaningful tool in shareholder disputes.

See Shareholder Disputes under Swiss Law.

A person who, without formal appointment, in fact exercises functions typically reserved to a corporate body. Such persons are subject to the same duties and liabilities as formally appointed directors, a doctrine developed by the Swiss Federal Supreme Court.

The liability of a principal under Art. 55 OR for damage caused by auxiliaries in the performance of their duties, unless the principal proves appropriate selection, instruction, and supervision. Distinct from direct liability of the corporation itself.

The two-part regime for corporate criminal liability in Switzerland: subsidiary liability for crimes that cannot be attributed to a specific natural person because of organisational defects (para. 1), and concurrent liability for a closed catalogue of predicate offences (money laundering, terrorism financing, support of a criminal organisation, bribery) where the company failed to take all reasonable organisational measures to prevent them (para. 2). The fine is capped at CHF 5 million; disgorgement under Art. 70 ff. StGB and parallel civil liability under Art. 754 OR run independently and frequently exceed the headline fine.

See Corporate Criminal Exposure.

Third-party funding of litigation costs in exchange for a share of the proceeds. Permissible in Switzerland under the conditions articulated by the Swiss Federal Supreme Court; governance implications are significant.

See Litigation Funding and Governance Implications.

The mandatory pre-litigation conciliation procedure governed by Art. 197 ff. ZPO, required in most civil matters before a claim may proceed to the ordinary court. Conducted before a cantonal conciliation authority, it aims to produce a settlement or, failing that, a written authorisation to proceed (Klagebewilligung). Specific exceptions apply, notably before cantonal commercial courts.

See Litigation Readiness for Swiss Boards.

The internal regulations adopted by the board under Art. 716b OR that allocate management responsibility between the board and management. A central governance document whose content is frequently decisive in disputes over director responsibility.

The Swiss functional equivalent of the common-law attorney-client privilege, but constructed differently: it is the attorney’s duty of confidentiality (Art. 13 BGFA) protected by criminal sanction (Art. 321 StGB) and given procedural effect through the right to refuse evidence (Art. 166 ZPO; Art. 171 StPO). It protects communications with attorneys admitted to a Swiss bar (or recognised foreign equivalents) acting within their professional mandate. Documents in the client’s possession that reflect attorney advice are largely unprotected outside the attorney’s hands. The position of in-house counsel changed materially with Art. 167a ZPO (in force 1 January 2025), which grants a limited refusal-to-cooperate right for in-house legal departments in civil proceedings under defined conditions; in criminal proceedings, in-house counsel still do not enjoy equivalent protection.

The board’s non-delegable duty under Art. 716a Ziff. 5 OR to supervise persons entrusted with management, particularly with respect to compliance with laws, the articles, regulations, and instructions. The duty does not require the board to manage operationally; it requires the board to ensure that the structure, the information flows, and the response mechanisms exist for the board to know what it needs to know. The Swiss functional equivalent of the Delaware Caremark / Marchand oversight duty.

See Commentary: Marchand v. Barnhill.

A reduction in assets, an increase in liabilities, or a missed accrual of an asset. The constitutive element of harm in Swiss tort and white-collar criminal doctrine, including under Art. 158 StGB (unfaithful management). The harm is measured by reference to the company’s assets, not its net equity — a point clarified in BGE 151 IV 258, where the Federal Supreme Court held that an over-indebted company can still be harmed within the meaning of Art. 158 StGB.

See Commentary: BGE 151 IV 258.

The standard against which a director’s conduct is measured — that of a reasonably diligent director in comparable circumstances. Its content is elastic, informed by the company’s size, activities, and the circumstances in which the decision was taken, and the Swiss Federal Supreme Court has developed a doctrine giving meaningful deference to reasoned board decisions.