Reichlin Hess Rechtsanwälte, Steuerberater, Notare, Zug, Schweiz

Liability under corporate law, interests of the group of companies also to be considered

In its ruling of 18 November 2019 (4A_268/2018), the federal supreme court essentially supported the decision of the commercial court of the Canton of Zurich of 16 March 2018 (ruling HG130073) [The Financial Responsibilities of the Board of Directors in the Group] in a ruling in the causa Swissair.

With regard to liability under corporate law, in particular the following statements by the federal supreme court are worth mentioning: as per the federal supreme court decisions which violate the legal provisions on capital protection – in the present case the granting of loans at non-market conditions – might be justified by specific circumstances and consequently do, as an exception, not constitute a breach of duty (del. 6.5.4.4). In casu, granting the loan was essential from Swissair’s corporate interest‘s point of view, since Swissair was for its flight operations dependent on the group companies’ continued existence – otherwise, it would not have been able to continue its flight operations, either. Accordingly, when analysing the responsibilities of the executive bodies, the granting of the loan should be examined in this context. The federal supreme court further states that the transactions in question were not financial, but operational investments. Just like with respect to other business decisions, a certain reluctance should be exercised when reviewing such operational investments. This means that in view of (the advantages of) belonging to a group of companies, the (isolated) interests of the company cannot be the sole benchmark, but to a certain extent the interests of the group must also be taken into account (del. 6.5.4.4). Accordingly, the federal supreme court denied a breach of duty.