Finanzinstrumente in der Aktienrechtsrevision - Derivate, Securities Lending und Repurchase Agreements

The Swiss Federal Government has issued the message for a substantial amendment of the provisions in the Swiss Code of Obligations (CO) governing the joint stock corporation to the Parliament in December 2007. It is remarkable that rules on financial instruments related to the shares of a company, especially for securities lending and similar instruments, are a prime focus of the Government. "New vote buying" and "empty voting" will be hot topics in the forthcoming legislative process. As a securities borrower does not bear the economic risk of the issuer, some legal scholars argue on the basis of article 685d II CO that he shall not be registered as a shareholder with voting rights. The author raises doubts whether this is appropriate under the current regulation and proposes that the legislator shall establish a regime which grants legal certainty to all the players in the market, i.e. borrowers, lenders and issuers of shares.

Other issues covered by the article are the proposed possibility to exclude existing shareholders from the advance subscription right with respect to an increase of conditional capital in a listed company without valid reason as well as the capital increase by setting off claims against the company related to mandatory convertibles. Additionally, the author discusses the proposed amendment of article 659a CO (which requires the voting rights of own shares to be dormant) for treasury shares of the company which are lent to a third party.