On 1 January 2023, the corporate law reform entered into force and solidified arbitration as alternate dispute resolution mechanism for corporate disputes. Pursuant to the new provision in the Swiss Code of Obligations, (1) the articles of association of these corporations may provide that corporate disputes shall be decided by an arbitral tribunal with its seat in Switzerland.
This opportunity is available to Swiss limited shares companies (société anonyme, Aktiengesellschaft [AG]), to Swiss limited liability companies (société à responsabilité limitée, Gesellschaft mit beschränkter Haftung [GmbH]) and Swiss partnerships limited by shares (société en commandite par actions, Kommanditaktiengesellschaft).
A brief research on the website of the Swiss Official Gazette of Commerce (2) shows that as per the end of March, at least 70 companies introduced an arbitration clause in their articles of association. As the season of ordinary general meetings barely started, we may expect an increased number of companies opting for statutory arbitration clauses this year.
Up until 1 January 2023, the practice regarding statutory arbitration clauses was not uniform in Switzerland. Some commercial registries rejected articles of association containing such arbitration clauses. Other commercial registries, on the other hand, accepted them. The validity of such clauses was disputed among scholars, in particular regarding new shareholders who had not initially accepted the articles of incorporation containing the arbitration clause upon incorporation of the company, and never ruled upon by the Swiss Federal Tribunal. In that sense, the new legal provision entered into force on 1 January 2023 provides a clear legal basis and increases the legal certainty for such disputes.
It must be noted that neighboring countries such as Germany and Austria have already enacted similar provisions, and the German Arbitration Institute (DIS) already issued the Supplementary Rules for Corporate Disputes in 2018.
Purpose and Scope of Application
The goal of the new provision is to enhance the minority rights of shareholders and the enforceability or arbitral awards in corporate disputes. Arbitral tribunals have many advantages compared to state courts (such as confidentiality, flexibility, expert knowledge of the arbitrators, a timely decision etc.). In that sense, arbitral tribunals can help enhance the resolution of corporate disputes under Swiss law.
The term «corporate dispute» is to be understood similarly to art 151 Private International Law Act (PILA) and hence in particular encompasses the challenges against resolutions of the general meeting, (3) the claim in dissolution of the company, (4) the claim in capital contribution, (5) the claim in return of benefits, (6) and the liability claims against corporate bodies. (7) It is understood that the actions for information and inspection, as well as actions for the appointment of a special auditor are also fall within the scope of the new legal provision. However, it is disputed whether the actions for measures in case of defects in the organization of the company is subjected to arbitration.
It must further be noted that the articles of association may restrict the scope of the arbitration clause and exclude certain corporate disputes from the jurisdiction of the arbitral tribunal.
The arbitration clause is binding upon the company, the corporate bodies of the company, the members of the corporate bodies and all shareholders – new and old, unless the articles of association restrict its application. In contrast, disputes among shareholders are typically not covered by the corporate arbitration clause. In particular disputes arising out of shareholders’ agreement will be subject to the jurisdiction or arbitration clauses stipulated therein. To the extent possible, it is advisable to include the same arbitration clause in the articles of association as well as in the shareholders’ agreement, so as to avoid situations for which both state courts and arbitral tribunal may have jurisdiction, depending on which legal ground a particular claim is based.
Finally, creditors of the company and other third-parties are not bound by an arbitration clause in the articles of incorporation as defendants. The articles of association, however, may provide that creditors of the company have the right (but not the obligation) to rely on the arbitration clause as claimants.
Implementation, lex arbitri and choice of rules
The resolution adopting an arbitration clause in the articles of association of a share company falls within the competence of the general meeting of the shareholders and requires a qualified majority vote. (8) The same is true with regard to the Swiss limited liability companies (qualified majority of quota-holders) and Swiss partnerships limited by shares (qualified majority of partners).
Once a company includes an arbitration clause in its articles of association, this will be expressly noted in the commercial registry. (9) This transparency is of utmost importance because any future shareholder of the company will automatically (i.e., ipso iure) be bound by the statutory arbitration clause.
In terms of the lex arbitrti, it is noteworthy that the 12th chapter of the PILA will not be applicable to corporate arbitrations. The revised provision expressly stipulates that the rules applicable to national arbitration pursuant to the Swiss Code of Civil Procedure are applicable. (10) This choice in particular increases the parties’ ability to appeal against the arbitration award. The Swiss Code of Civil Procedure namely provides for an additional relief in case the arbitral award is arbitrary because the factual findings of the arbitral tribunal are manifestly contrary to the record or manifestly violates the law or the principle of equity. (11)
The details of the procedure may be stipulated in the statutory arbitration clause or by way of a reference to a set of arbitration rules. The Swiss Arbitration Center issued such a set of rules (the «Supplemental Rules») and published them on its >website, alongside with an exemplary arbitration clause for corporate disputes. However, the Swiss Arbitration Center excludes therein matters subject to summary proceedings (e.g. actions for information and inspection, actions for the appointment of a special auditor) from its standard arbitration clause, leaving them to the state courts to decide.
The new provisions on corporate disputes in the Swiss Code of Obligations provide a sound basis for a broad acceptation of arbitration as an alternate dispute resolution mechanism for companies in Switzerland. Both owners and companies are provided with a helpful legal toolkit to avoid lengthy proceedings before state courts and to benefit from the efficiency and enforceability of corporate dispute resolution by arbitral tribunals. However, proving itself in practice is yet to come. The first experiences with these new rules in the coming years will be interesting and may be decisive as to whether arbitration of corporate disputes becomes a success story.
(1) Art. 697n Swiss Code of Obligations (CO)
(3) Art. 706 CO
(4) Art. 736 Nr. 4 CO
(5) Art. 634b CO
(6) Art. 678 CO
(7) Art. 752 et seqq. CO
(8) Art. 704 para. 1 Nr. 14 CO
(9) Art. 45 of the Swiss Ordonnance on the Commercial Register (HRegV)
(10) Art. 353 et seqq. of the Swiss Code of Civil Procedure (CPC)
(11) Art. 393 lit. e CPC.