Changes to company law in Swiss Code of Obligations (major revision of company law)

The preliminary draft for the revised company law pursues five objectives: to incorporate the Ordinance Against Excessive Compensation in Listed Stock Companies in national law, to improve corporate governance, to introduce more flexible establishment and capital provisions, to harmonize the law with the new accounting law, and to introduce transparency regulations for major companies in the raw materials extraction sector. Some of the important changes are: obligation for consultative voting on compensation report in course of the prospective voting on variable compensation, an additional dividend for voting shareholders, gender quotas for boards of directors and executive boards, the abolition of the intended acquisition of assets, the introduction of the capital spread, the permissibility of interim dividends, guidelines for capital reserve repayments (only permitted if there is net loss for the year and if confirmed by a licensed audit expert), the obligation to draw up a liquidation plan if there is good cause to suspect overindebtedness, and the introduction of a grace period of 90 days for submitting a notice of overindebtedness to the court if there are good prospects for recovery.

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  • 3 Result of consultation 12/15-12/16
Status
Result of consultation published on 4 December 2015.

KPMG View

In addition to welcome developments such as simplified establishment and capital requirements (introduction of the capital spread), the permissibility of interim dividends and the harmonization with the accounting law which gives companies more flexibility and legal certainty, the preliminary draft also introduces rather critical changes such as a gender quota which limits the freedom of listed companies to act. By comparison of the legislative draft to the dispatch it is pleasing that the Federal Council wants to abandon alterations like the shareholders' forum and the right to instigate reimbursement or liability actions at the company's costs. Such improvements, including the new obligations of the governing and executive bodies in restructuring situations, can create considerable additional work for companies.

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