News & Cases

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.

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

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: 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.