Revision of the Swiss Corporate Law: Board of directors
The revCO does not change the parity principle of Swiss corporate law, according to which there is a clear separation and allocation of the competencies, powers and duties between the shareholders' meeting and the BoD, many of which are and remain untransferable and inalienable, without the possibility of one of these bodies overruling the other, despite the fact that there is a shift of certain important competencies from the BoD to the shareholders' meeting, namely in the case of listed companies, and a moderate extension of the shareholders' participation rights.
Nothing changes with respect to the eligibility to the BoD: only individuals may become members of the BoD (Directors).
Directors continue to be elected and dismissed by the shareholders' meeting.
In principle, the Directors must be elected individually. In unlisted companies, the articles of association (AoA) or, with the consent of all shareholders represented, the chairman of the specific shareholders' meeting may provide for a collective election of the Directors.
Term of office
In listed companies the Director's term of office is maximum one year, ending at the end of the ordinary shareholders' meeting following the election. In unlisted companies the term is three years, but the AoA can shorten the term to one or two years as well as extend it up to a maximum of six years.
Directors (including the chairman, cf. below) may be reelected. The AoA may, however, limit the number of consecutive terms of office or set age limits.
Chairman, vice-chairman and secretary
In listed companies the chairman of the BoD is elected by the shareholders' meeting from among the Directors. In unlisted companies the chairman of the BoD is elected by the BoD itself from among its Directors, unless the AoA provide for the election by the shareholders' meeting.
The revCO continues not to require the election of a vice-chairman and no longer requires a secretary of the BoD. However, the AoA and/or the organizational by-laws (By-laws) may do so. If there is no secretary of the BoD, the chairman may appoint a keeper of the minutes ad hoc for each meeting.
The revCO does not to set a minimum number of BoD meetings. However, the AoA and/or the By-laws may do so. As a standard, such documents provide for at least four meetings per year, but in any event as often as required by the business.
Meetings shall ensure that the Directors discuss items thoroughly. Obviously, because it is in the best interest of the company. But also with the aim of limiting the company's and the Directors' liability risks; in fact, based on the business judgment rule originating from common law countries, which is also applied in Switzerland, the BoD is presumed to act in good faith and, therefore, protected by the business judgment rule, if the following requirements are met when taking decisions: (i) no conflicts of interest; (ii) the decision is based on appropriate information; (iii) the information was evaluated in a proper decision-making process; (iv) the decision is formally correct and compliant with all regulations.
The AoA or the By-laws usually set forth a five-day or ten-day notice for convening a BoD meeting.
The meeting may take place anywhere. However, the AoA and By-laws may provide for restrictions, e.g., that the place must be in Switzerland.
Furthermore, the meeting may be in person or by electronic means (e.g., video or telephone conferencing). During a meeting, the Directors may exercise their voting rights electronically. In such case, the BoD needs to implement technical measures assuring the reliability of the results.
Furthermore, the BoD must provide for the minutes of the meetings to be kept, whereby the minutes must encompass the discussions and resolutions. The minutes need to be signed by the meeting chairman and the meeting secretary/keeper of the minutes.
Resolutions in writing
Whenever holding a meeting is difficult or impossible, the BoD may take its decisions in writing, provided that no Director expressly requests the discussion of an agenda item. The BoD has to ensure that the decision is clear and unequivocal. Written resolutions may be taken on paper (i.e., with handwritten or qualified electronic signatures) as well as in electronic form (e.g., by e-mail), save as otherwise provided for by the By-laws.
Quora and Resolutions
The revCO does not provide for a participation-quorum of the BoD-meetings and only requires a majority of the votes cast for its resolutions. Furthermore, the chairman of the BoD has the casting vote, unless otherwise provided for in the AoA.
Delegation of management
According to the revCO, the company management is to be exercised jointly by all Directors.
The BoD may, however, delegate all or part of the management to one or more of the Directors or to third parties (managers), unless the AoA provide otherwise (under the old law, the opposite principle applied).
The management must be delegated to individuals. Listed companies may, however, delegate the management of the company's assets to legal entities.
In principle, the delegation of the management occurs based on the By-laws.
Articles of association
As we have seen, the AoA need to be amended for certain rules to apply.
The revCO does not regulate the content of the By-laws, which should encompass at least rules regarding the following issues: (i) duties and competencies of the BoD, its committees (if any), its chairman, and of the management; (ii) in particular the rules regarding the management of the company’s business; (iii) reporting rules; (iv) decision-making process; and (v) the management of conflicts of interest.
Should you have any questions regarding the revCO or should you require any assistance incorporate matters, please do not hesitate to contact our specialists in Geneva, Lugano or Zurich. We would be more than happy to assist you.