Wider das Paritätsprinzip! - Lektionen aus Grossbritannien
Journal
Schweizerische Zeitschrift für Wirtschaftsrecht
ISSN
1018-7987
Type
journal article
Date Issued
2014-07-15
Author(s)
Abstract (De)
Under Swiss corporate law, the powers of the board of directors to oversee and manage the corporation are inalienable: It would be illegal for the articles of incor-poration to require shareholder approval on issues pertaining to the board's exclusive domain. Likewise, shareholders are prohibited from giving the board directions. A proposal by the Federal Council to relax this "inalienability rule" in a limited way has been met with mixed reactions.
British company law provides the setting for a natural experiment on what may happen when corporations are free to regulate the division of powers between the shareholders and the board. I analyzed the articles of association of 93 companies represented in the FTSE 100 and I found that in all of these companies, shareholders may give the board directions, sometimes even with a simple majority. 73 per cent of all companies restrict the board's borrowing powers. Both would be illegal under Swiss law. In addition, companies with a premium listing-including all FTSE 100 companies-are required to obtain shareholder approval for important transactions. There is no evidence of problems relating to these rules.
Therefore, Switzerland's "inalienability rule" should be abolished completely, not just in part, as the Federal Council has proposed. Common objections against loos-ening the rule are unconvincing. However, a couple of smaller statutory amendments will be necessary in the event that the "inalienability rule" is abolished.
British company law provides the setting for a natural experiment on what may happen when corporations are free to regulate the division of powers between the shareholders and the board. I analyzed the articles of association of 93 companies represented in the FTSE 100 and I found that in all of these companies, shareholders may give the board directions, sometimes even with a simple majority. 73 per cent of all companies restrict the board's borrowing powers. Both would be illegal under Swiss law. In addition, companies with a premium listing-including all FTSE 100 companies-are required to obtain shareholder approval for important transactions. There is no evidence of problems relating to these rules.
Therefore, Switzerland's "inalienability rule" should be abolished completely, not just in part, as the Federal Council has proposed. Common objections against loos-ening the rule are unconvincing. However, a couple of smaller statutory amendments will be necessary in the event that the "inalienability rule" is abolished.
Language
German
Keywords
Gesellschaftsrecht
Aktienrecht
company law
Grossbritannien
Paritätsprinzip
Verwaltungsrat
Generalversammlung
HSG Classification
contribution to scientific community
HSG Profile Area
LS - Business Enterprise - Law, Innovation and Risk
Refereed
No
Publisher
Schulthess
Publisher place
Zürich
Number
3
Start page
255
End page
273
Pages
19
Subject(s)
Division(s)
Eprints ID
228472
File(s)![Thumbnail Image]()
Name
Häusermann_Paritätsprinzip_Alexandria.pdf
Size
348.11 KB
Format
Adobe PDF
Checksum (MD5)
2003e78ccc8421cdc749b3a752387aa1