November 1, 2019: The amendments to the Swiss Code of Obligations and the Criminal Code, which affect every Stock Corporation (AG) and limited liability company (GmbH), come into force on November 1, 2019.
On November 1, the amendments to the Swiss Code of Obligations (OR) and the Swiss Penal Code (StGB) will come into force, which will result in a significant tightening of the reporting requirements applicable since July 1, 2015 and a de facto abolition of bearer shares.
Furthermore violations of the provisions in force could result in the loss of rights to the shares. According to the tightened regulations any share register which is not kept in compliance with the new regulations as well as the failure to notify the company about the beneficial owners of the shares are a punishable offence.
Every Stock Corporation (and Limited Liability Company (GmbH)) and the Board of Directors which is responsible for the management of the stock corporation should therefore ensure that:
- all registers of the company are kept in accordance with the regulations;
- no shareholders (or, in the case of the GmbH, partners) exercise their rights in violation of the reporting obligations;
- the supporting documents on which a shareholder's report is based are duly kept;
- the registers in Switzerland can be accessed;
- existing bearer shares of the stock corporation - provided the corporation has not listed any participation rights on a stock exchange - are either structured as uncertificated securities or converted into registered shares and outstanding bearer shares are to be redeemed;
- if necessary, the entry in the commercial register in accordance with Art. 622 para. 2bis OR is arranged.
Every shareholder (or partner in the GmbH) should ensure that:
- he has duly notified the company of the acquisition of his bearer shares and the entry in the register corresponds to his notification;
- the required notification of the beneficial owner of the shares has been made correctly and the facts have been reported in accordance with Art. 697j para. 2 and 3 OR;
- the recorded information on the reported beneficial owner is still correct.
The attorneys of Bruppacher Hug & Partner will be very pleased to provide further information and to support in complying with the above obligations. Please do not hesitate to contact us if you have any questions.
October 2019: Dominique Anderes in the magazine Finanz und Wirtschaft of October 2, 2019 regarding Alpiq Holding AG and the challenging of its General Assembly resolutions on the capital increase by conversing the Hybrid Loan into share capital and the squeeze-out merger
The majority shareholders of Alpiq Holding AG intend to converse the existing hybrid-loans into share capital through a share capital increase which has to be determined by the General Assembly. The capital increase pursues the goal to reach the threshold of 90% of all voting rights of all shareholders. 90% of all voting rights are required to resolve a squeeze-out merger through which all existing minority shareholders shall be compensated financially instead of receiving shares in the succeeding company of Alpiq („Alpiq NewCo AG“). Time will tell whether such resolutions which have to be taken by the General Assembly and the restriction of the subscription rights of the existing minority shareholders is permissible or if they may be challenged successfully in court.
The entire article in German you may find here >>> to the article
May 2019: Franchising - Dickey’s Barbecue Pit plans expansion into the Swiss Market
The attorneys of Bruppacher Hug & Partner advise Dickeys Barbecue Pit on franchising in connection with its entry into the Swiss Market and the German-speaking part of Europe. Dickey's Barbecue Pit was founded in 1941 by Travis Dickey and the restaurant chain, headquartered in Dallas, Texas, is still managed by the Dickey family today. Dickey's Barbecue Pit is the largest Barbecue chain in the United States and has been operated as a franchise system since 1994. In Abu Dhabi and Dubai further franchise operations were just recently opened.
Dickey's is looking for suitable franchise partners and interested parties please contact Bruppacher Hug & Partner directly.
Further information in particular on the franchise system can be found on Dickey's website under www.dickeys.com/franchise
March 27, 2019: Dominique Anderes in the magazine Finanz und Wirtschaft concerning the question of the wording of the invitation to the Extraordinary General Meeting of Panalpina World Transport (Holding) Ltd.
On Friday, April 5, 2019 the Extraordinary General Meeting of Panalpina World Transport (Holding) Ltd. will take place in Basel. The wording of the invitation is questionable. In this regard, however, shareholders can hardly take any legal action before the Annual General Meeting because a shareholder primarily has to exercise his rights on the occasion of the General Meeting itself. Depending on the resolutions passed, the affected shareholders may be entitled to challenge the resolutions in court within the statutory period of two months after the Annual General Meeting.
The entire article in German you may find here >>> to the article
March 23, 2019: Dominique Anderes in the magazine Finanz und Wirtschaft regarding the statutory voting and registration limitations of Panalpina World Transport (Holding) Ltd. with regard to the shares of the Ernst-Göhner Foundation
On Friday, April 5, 2019 the Extraordinary General Meeting of Panalpina World Transport (Holding) Ltd. will take place in Basel. The Ernst Göhner Foundation made a motion to repeal the existing registration and voting limitations as set forth in the Articles 5, 12 and 13 of the Statutes of Panalpina World Transport (Holding) Ltd.
Since the company's Initial Public Offering in 2005, the Board of Directors of Panalpina has exempted the Ernst Göhner Foundation from the statutory registration and voting limitations. Contrary to other shareholders - who also hold more than 5% of the share capital of Panalpina - the Board of Directors relies on a statutory exemption clause in favour of the Ernst Göhner Foundation. However, according to attorney Dominique Anderes, there is no statutory basis for this preferred treatment. The minority shareholder, Cevian Capital, has also criticized the previous practice of allowing the Ernst Göhner Foundation to fully exercise its shareholders rights (i.e., not limited to 5%). The Board of Directors has not yet determined whether the statutory voting restrictions shall be applied to all shareholders at the upcoming Extraordinary General Meeting and thus also to the shares of the Ernst Göhner Foundation.
If the General Meeting approves the amended Articles of Association, the principle "one share - one vote" would apply to all shareholders in the future. Accordingly, all shareholders shall be entered into the Company's share register and the voting rights for all registered shares could be exercised in accordance with the effective share capital.
The entire article in German you will find here: >>> to the article
The invitation to the General Meeting in German you will find here: >>> to the invitation
March 6, 2019: Dominique Anderes in the magazine Finanz und Wirtschaft regarding Panalpina's invitation to the extraordinary general assembly and the blocking of its share register
With press release of March 5, 2019 Panalpina’s Board of Directors has announced to close the share register on March 14, 2019 at 17.00 CET and to dispatch the invitation letter on March 15, 2019 in line with Panalpina’s articles of association. However, this procedure is contrary to Panalpina’s articles of association which in fact stipulate that the share register shall be closed as soon as the invitation letter has been dispatched and no entries shall be made until the day after the general assembly. As a consequence of the violation of the articles of association the resolutions of the general assembly may be challenged by any shareholder in court.
March 2, 2019: Dominique Anderes in the magazine Finanz und Wirtschaft regarding Panalpina's Articles of Association and the blocking of its share register
The Articles of Association of Panalpina World Transport (Holding) Ltd. stipulate that no entries shall be made in the share register after the invitation to the Annual General Meeting has been dispatched and until the day after the Annual General Meeting. This results in a relatively long blocking of the share register and prevents the exercise of voting rights of those shares which are bought after the invitations have been sent. The regulation of Article 5 of the Articles of Association is in accordance with the applicable Swiss laws, but nevertheless problematic despite its legal basis.
December 2018: International bankruptcy law revised to facilitate the recognition of foreign bankruptcy proceedings in Switzerland
The amendments to the Federal Code on Private International Law (CPIL) will enter into force on January 1st, 2019.
The recognition of foreign bankruptcy and debt moratorium proceedings in Switzerland is governed by Art. 166 et seq. of the CPIL. The purpose of the recognition proceedings is to initiate bankruptcy proceedings against assets of the debtor located in Switzerland. The restrictive recognition requirements of the current law, in particular the proof of reciprocity and the compulsory auxiliary bankruptcy proceedings, have so far delayed or rendered impossible the recognition of foreign bankruptcy decisions. This is why, the recognition procedure will henceforth be simplified.
Under current law, only foreign decrees issued in the debtor's country of residence are recognised. This country must grant reciprocity. When a foreign bankruptcy decree is recognised, domestic auxiliary bankruptcy proceedings must be conducted to safeguard the interests of creditors domiciled in Switzerland, even if there are no Swiss creditors at all. Within this framework, the assets located in Switzerland are realised separately in favour of creditors in Switzerland. Only a surplus will be transferred in favour of the foreign creditors.
The revised provisions waive the proof of reciprocity. It will also be possible to recognise bankruptcy proceedings opened in the country in whose territory the debtor has the centre of his main interests (assuming that he was not domiciled in Switzerland at the time the foreign proceedings were opened). Auxiliary bankruptcy proceedings must only be conducted if creditors in need of protection actually exist in Switzerland. However, this must be applied for by the foreign bankruptcy administration.
If auxiliary bankruptcy proceedings are waived, the foreign bankruptcy administration may exercise, in compliance with Swiss law, all powers to which it is entitled under the law of the country in which the bankruptcy was opened. In particular, the foreign bankruptcy administration is authorised to transfer assets abroad and to conduct litigation. However, sovereign acts, the use of coercive measures or the right to decide disputes are excluded.
November 2018: Counseling of a shareholder regarding the selling of his shares in a company that successfully operates an online shop
The attorneys of BHP advised a shareholder, which sold his shares to the second shareholder. Through this transaction, the buyer acquired a 100% of the share capital and all voting rights. BHP supported and advised the seller in the context of the negotiations of the terms of the share purchase agreement (share deal), that also included the assumption of company loans by the buyer.
October 2018: Due diligence of the merger of two firms with regard to a possible acquisition by a German nutrition corporation
After the successful merger of two Swiss companies, which are active in the development of nutrition technologies, the attorneys of BHP performed a due diligence of the merged company (merger as per art. 3 lit. a. of the Swiss Federal Merger Act) with regard to the acquisition (share deal) by a German nutrition corporation. The negotiations concerning the exact terms of the purchase agreement between the German buyer and the Swiss sellers were suspended after the parties did not reach an agreement. However, the negotiations might be resumed in 2019.
August 2018: Work and Residence Permits for Employees of International Companies and SME
The attorneys of Bruppacher Hug & Partner support and advise local and international companies as well as SME and their employees regarding questions relating to employment and residence law matters. BHP's lawyers take care of all correspondence and represent the company and its employees towards the Migration- as well as the Cantonal Economic and Employment Offices in order to obtain the necessary permits to work and reside in Switzerland.
Do you have any questions or do you need support with an application for a work and residence permit with the Migration Office and the Cantonal Economic and Employment Offices?
We are at your disposal to support and advise you regarding the application for a work- and residence permit and we handle all correspondence on your behalf.
August 2018: Penalties for violation of obligation to report job vacancies
Since July 1, 2018 the obligation to give priority to local workers (so called “Inländervorrang”) has entered into force in Switzerland. As of this date employers, of professions with an unemployment rate of 8% and more in Switzerland, are obliged to report job vacancies to the Regional Employment Agency (RAV). The reportable positions include occupations in construction, PR and marketing as well as in the hotel and hospitality industry.
It should be noted that the obligation to register also applies to jobs that are placed through employment agencies, headhunters and temporary employment agencies.
Employers who intentionally or negligently violate the job reporting obligation or the obligation to conduct an interview or an aptitude test will be fined up to CHF 40’000.00.
Do you have any questions or do you need any support in implementing the new legislation? We are at your disposal to support and advise you regarding the compliance with the job reporting obligation.
July 2018: Litigation Law - Success rate of appeals at Swiss Federal Supreme Court declines
The chances for successful appeals before the Swiss Federal Supreme Court are declining steadily. The annual report of the Swiss Federal Supreme Court for the year 2017 shows that in 2017, only 13.45 percent of all complaints were fully or partially approved by the highest Swiss Federal court. By comparison, the success rate in 2016 was at 14.35 percent. In 2015 it even was 14.7 percent. In particular appeals in civil law matters, where only around one in ten complaints was fully or partially approved by the judges, the declining trend is intensifying. In comparison: the success rate of appeals regarding criminal affairs was at 16.5 percent. However, the success rate of appeals in public law matters was only a mere 13.1 percent.
In the opinion of the attorneys of Bruppacher Hug & Partner these ratios illustrate the professional and mostly flawless legal work of the district and higher courts in the Cantons and on the municipal levels. If a larger number of appeals filed with the Swiss Federal Supreme Court were successful, this would not speak in favour of the work of the district and the cantonal higher courts.
Even lower is the success rate of the appeals filed with the Swiss Federal Criminal Court: only 12 percent of all appeals were successful last year. At the Federal Administrative Court at least 20 percent of all appeals were approved. This figure is owed to the fact that the Federal Administrative Court often acts as the first judicial instance.
In the opinion of the attorneys, the decision to accept or appeal against a first-instance judgment has to be evaluated individually in each case. Depending on the facts of the case and the legal situation, a thorough analysis of the judgment may lead to the conclusion that the chances of a successful litigation in the second instance are considerably higher than the above figures would suggest. A diligent analysis of the litigation prospects and -risks which takes the economic interests of the Client as well as the duration of the litigation process into account, is an indispensable basis for the decision-making.
It is also striking that the public deliberation of judgments is declining. In 2017 overall only 70 cases were discussed publicly. One year earlier this number was at 78 cases.
The expenses of the Swiss Federal Supreme Court for free legal aid (free administration of justice) amounted to CHF 837’570, which corresponds to 0.9 percent of the Swiss Federal Supreme Court's total expenditure of CHF 93 million. IT costs amounted to around CHF 2.2 million. Both the costs for the free administration of justice and those for the IT infrastructure have risen continuously in recent years.
Source: annual report 2017: Swiss Federal Supreme Court >>> Download PDF
July 2018: Corporate Housekeeping for SME and legal entities and support of the board of directors and business managers
In the first half of 2018 the attorneys of Bruppacher Hug & Partner supported and advised various SME and legal entities and their board of directors and business managers in organizing and holding of ordinary and extraordinary general assemblies of shareholders. In particular BHP's attorneys supported various SME in preparing the documents required by law and/or the bylaws, such as invitations to the annual general assembly, preparation of the agenda, proxies and appointment of independent proxies, recording of the resolutions passed by the annual general assembly regarding dividend payments or carrying forward the annual profit to the accounts of the following year, election of the board of directors and the auditors as well as recording of shareholder proposals - also with regard to potential challenges against resolutions, requests for inspection and information of shareholders or with regard to the appointment of a special auditor or the initiation of legal actions for liability against the members of the board. Furthermore, the attorneys of BHP supported the members of the board of directors of SME and legal entities in implementing the resolutions of the general assembly or the board of directors and, on their behalf, took care of the entire correspondence with the commercial register office, the tax authorities and banking institutions regarding the regulation of signatory powers. Due to changes among shareholders as a result of the sale/purchases of shares or deaths of shareholders, the lawyers of Bruppacher Hug & Partner updated various stock and share registers of companies limited by shares (AG) or limited liability companies (GmbH).
This comprehensive support by BHP's attorneys enabled the managers and board members of SME to focus on the day-to-day business of the company.
June 2018: Financial sector - new rules regarding the protection of investors
On June 15th, 2018 the Swiss parliament adopted two new regulations relating to the financial sector. Both new laws shall enter into force in 2019.
The Financial Services Act (FinSA) improves client protection and the Financial Institutions Act (FinIA) contains new regulations in regards to the supervision of financial intermediaries.
The FinSA contains code of conduct provisions with which financial service providers must comply vis-à-vis their clients. Financial service providers are required by law to give clients appropriate explanations and advice. It also comprehends provisions for prospectus duties and requires an easily understandable key information document for financial instruments. A key information document is now to be supplied for all financial instruments offered to retail clients. The key information document should enable clients to make informed investment decisions and genuinely compare various financial instruments in a simple and understandable way.
With the Financial Institutions Act (FinIA) independent asset managers will be subject to the supervision of an ombudsman which acts under the control of the financial supervisory authority (FINMA).
(Source: Swiss parliament)
June 2018: BHP advises SME regarding the EU-General Data Protection Regulation (EU-GDPR) which is applicable as of May 25th, 2018
The lawyers of Bruppacher Hug & Partner advise various SME on the effects of the General Data Protection Regulation (EU-GDPR), which is applicable as of May 25th, 2018 in all member states of the European Union and which also affects many SME domiciled in Switzerland. The EU-GDPR regulates i.a. the storage of customer and employee data and holds the SME accountable for violations against the EU-GDPR. In particular regarding the data collection as well as the processing of the saved data. Furthermore the GDPR strengthens the rights of the affected persons. Violations of the provisions of the EU-GDPR are subject to financial penalties up to 20 Million EUR or up to 4 % of the total worldwide annual turnover.
March 2018: Revision of the Federal Code on Private International Law for the simplification of the Recognition of Foreign Decisions regarding Foreign Bankruptcy Decrees and foreign Composition Agreements
On March 27, 2018 the Swiss Federal Parliament published its resolution, dated March 16, 2018, regarding the revision of the Federal Code on Private International Law. The revision concerns i.a. Art. 166 et seqq. and aims at the simplification of the recognition of Foreign Decisions regarding Foreign Bankruptcy Decrees and foreign Composition Agreements.
With the proposed revision the Parliament took into account the increasing interdependency of laws and the economy which entail that bankruptcies and foreign composition agreements require to be processed cross-border. The new code facilitates a better coordination of connected domestic and foreign proceedings.
The amendment is subject to a facultative referendum. The deadline expires on July 5, 2018.
The Swiss Federal Council will decide on the effective date.
Further information (in German, French or Italian) you may find >>> here.
March 2018: Landmark decision of the Swiss Federal Supreme Court regarding the judicial enforcement of a Member of the Board of Directors right to request information on any company business
With a landmark decision the Swiss Federal Supreme Court ruled on February 28, 2018 that a Member of the Board of Directors right to request information on any company business can be enforced in court against the company. The Swiss Federal Supreme Court clarified this question, which has remained unanswered until this day, and by doing so repealed a ruling of the Supreme Court of the Canton of Obwalden. The claim of the Member of the Board of Directors regarding the right to information and inspection is subject to the summary proceedings pursuant to Art. 248 ff. of the Swiss Code on Civil Procedure.
The complete decision (in German) you may find >>> here.
March 2018: BHP represents a minority shareholder before the Commercial Court of the Canton of Zurich regarding the convocation of an extraordinary shareholder meeting
The Attorneys of Bruppacher Hug & Partner successfully represented a minority shareholder before the Commercial Court of the Canton of Zurich demanding the convocation of an extraordinary shareholder meeting. The Commercial Court followed the arguments presented by the Attorneys of BHP and approved the claim of the minority shareholder. The board of directors of the involved SME is obliged to hold the extraordinary shareholder meeting within the time period set by the Court.
February 2018: Legally Binding Court Settlement after instant dismissal of Manager
The Attorneys of BHP successfully represented a SME in labour court concerning a financial claim from the former manager who previously had been dismissed without notice for cause. Subsequently the plaintiff sued the SME for the payment of salaries in the amount of a six figure sum. However, the trial strategy developed by BHP and its Client proved successful. The plaintiff and the SME eventually settled the case in court. In return of payment of a symbolic sum the plaintiff withdrew the action, which saved the SME a six figure amount.
February 14, 2018: Swiss Federal Council
In connection with the modernization of the Swiss Inheritance Law the Swiss Federal Council plans major changes, including the minimization of conflicts with other jurisdictions. On February 14, 2018 the consultaion has been opened for the revision of the relevant legislation and the Swiss International Private Law.
August 31, 2016: Merger - BHP acting as Escrow Agent
BHP acts as an escrow agent in the merger of a Swiss company active in the field of medical engineering with an international enterprise. The purchase is payable in cash and in shares. BHP acts as escrow agent and is amongst others responsible for the settlement to around 100 shareholders.
August 15, 2016: Successful opposition by BHP against registration of a trademark
On behalf of a SME, which is the owner of an international registered trade mark, the Attorneys of BHP have successfully filed opposition at the Swiss Federal Institute of Intellectual Propertyto the registration of a new trademark violating the pre-existing international trademark. The trademark of the opposing party was deleted and the opposing party was obliged to compensate the Attorney fees resulting from the opposition procedure.
July 1, 2016: Acquisition in the Building Sector
BHP advises a Swiss building company in the acquisition of a competitor. Following the acquisition, the production sites of the two enterprises are merged and their earning power and capacities are thereby increased.
May 31, 2016: Financing of a Start-up
BHP represents a start-up in a financing round with new investors. The capital increase is successfully implemented, and the financing of future activities and targets is secured.
May 2, 2016: Increased requests for Advance Care Directives
During the past months the Attorneys from BHP have advised various Clients regarding the formation of Advance Care Directives. The Advance Care Directive serves for the independent and own care of adults which are no longer able to take care of their own due to age, accidents or diseases. The Advance Care Directive allows in advance to appoint the Family Members or Friends who one day should take care of the concerned Person.
March 31, 2016: Incorporations and Restructurings
In the first quarter of 2016, BHP was involved in setting up different new businesses, amongst them companies active in the field of medical services and in the tourism industry. Furthermore, BHP worked on corporate restructurings and prepared the sale of a company to investors.
December 15, 2015: Merger and Reorganisation of a Medical Science Company
Following the successful sale of a Swiss company in the field of medical science to a US company listed on the stock exchange, BHP is in charge of the internal reorganisation of the Swiss company. The transaction entails a merger as well as a conversion pursuant to the Swiss Merger Act.
December 10, 2015: BHP wins in the Labour Court
BHP represents a company active in the finance industry in court proceedings of a former employee against the company in the Labour Court of the Canton of Zurich. The Labour Court follows the arguments of BHP and dismisses the claim.
November 15, 2015: BHP successfully represents a Board Member in Court
BHP successfully represents the former member of the board of directors in court proceedings against a company active in the retail business. The District Court of Zurich follows the arguments of BHP. The claims raised by the Board Member are acknowledged and form part of a settlement in court.
November 1, 2015: Debt/Equity-Financing of a Start-up
BHP represents a start-up active in the field of information technology in a financing with former and new investors. The financing comprises a debt and an equity part. In addition, a shareholder agreement was entered into by all shareholders of the start-up.
September 30, 2015: Sale of a Hotel
BHP is involved in the sale of a popular hotel resort in the Swiss Alps. The sale occurs as a part of a succession planning and ensures the continuation and preservation of the Hotel.
August 1, 2015: Sale of a Hospital to a Private Hospital Group
BHP is entrusted with the implementation of the sale of a hospital to a leading private hospital group. The sale is completed and the hospital successfully integrated in the corporate structure of the acquiring company.
July 15, 2015: Foundation of a Start-up in the Field of Outsourcing & Information technology
BHP supports the founders in setting up a start-up in the field of outsourcing and information technology. BHP is involved in the drafting of all client agreements, the general terms and conditions, the outsourcing agreements and the shareholders’ agreement between the founders.
June 15, 2015: Annual General Meeting of Shareholders
In the first half-year of 2015, BHP supports different companies in the organisation and implementation of their annual general meetings of shareholders. Amongst these enterprises are a large international joint venture in the insurance industry and enterprises in the financial services industry as well as industrial companies.
April 30, 2015: Sale of an Industrial Company to a European Market Leader
In a sale of a Swiss industrial company to a foreign company listed on the stock exchange, BHP was entrusted by the buyers and by the seller with the implementation of the transaction. The buyer is considered as a market leader within Europe. This transactions is a milestone in the one hundred years old history of the Swiss company. It is received very positively by the employees and in the press.
February 15, 2015: Joint Venture in Hong Kong
A Swiss technology enterprise expands to Asia and enters into a joint venture in Hong Kong which entails both research and development as well as production. BHP represents the Swiss technology enterprise in this transaction and assists in the drafting and implementation of the agreements.
April/May 2019: Guest article by Mark Bruppacher and Dominique Anderes in the journal ERFOLG on the rights of shareholders with regard to the General Assembly
The article outlines the frequently arising area of conflict between majority and minority shareholders and provides information on the protection of the rights of minority shareholders under Swiss law.
The entire article in German can be found >>> here