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Corporate Law

 

 

Our main area of expertise lies in corporate law. Roger Groner has published several books ("Corporate Law Precedents", with Prof. Peter Nobel in 2006; "Private Equity Law" in 2007, "Share Buyback Programs" in 2003) and numerous corporate law articles. We represent a broad range of companies and investors in corporate law transactions.

 

In addition, Roger Groner is a regular contributor to CNBC:

Interview as of February 18, 2008 (Tax evasion in Liechtenstein).

Interview as of July 17, 2008 (Senate investigation targeting UBS).

Interview as of August 8, 2008 (UBS' settlement on debt buyback).

 

What a foreign investor should know: The Swiss share corporation ("Aktiengesellschaft, AG", "Société Anonyme, SA") corresponds to the U.S. business corporation.  Under Swiss and U.S. law, a corporation is a legal entity separate from its shareholders or managers.

 

The incorporation of a corporation is effected on the basis of a publicly authenticated deed (Art. 629 - 644 Code of Obligations).  The registration requires three per­sons or entities acting as incorporators. The founders need not be Swiss citi­zens or resi­dents.  The founders may, by notarized power of attorney, appoint a representative to form the corporation on their behalf.  By doing so, their presence in Swit­zerland is not re­quired.  If the power of attorney is notarized outside Switzerland, it must be accompanied by a so-called "Apostille" under The Hague Convention.  After incorporation, the number of shareholders may be reduced below three.

 

Corporate law requires articles of incorporation to document the corporation's creation and to provide provisions regarding the management of internal affairs.  Moreover, Swiss corporations are required to adopt bylaws to define the rights and obligations of officers, persons and groups within its structure. 

 

When doing business, any individual or association of persons must use a corporate name (Art. 944 Code of Obligations).  The name of the corporation may be chosen freely, as long as it does not conflict with an existing name, is not misleading, and does not serve advertising purposes only.  The name of the coporation may not be too general (“Insurance AG”, “Trade AG” e.a.).  Otherwise, a corporation could monopolize a complete branche of corporate names.  Images or signs, e.g., @, £, $, §, may not be registered. References in the name to any geographical areas (local, national, international) are allowed if they properly reflect the corporation's area of activity and if they are not contrary to any public interests.  Where the name of a person is chosen, the designation "Aktiengesellschaft", "société anonyme" or "società anonima" (or the abbreviations "AG" or "SA") must be added to the name.

 

The corporation is treated as a legal "person" that has standing to sue and be sued, distinct from its shareholders.  The legal independence of a corporation prevents shareholders from being personally liable for corporate debts. It also allows stockholders to sue the corporation through a derivative suit and makes ownership in the company (shares) easily transferable.  The legal "person" status of corporations gives the business perpetual life; deaths of officials or stockholders do not alter the corporation's structure.

 

Corporations are taxable entities that fall under a different scheme from individuals.  Although corporations have a "double tax" problem -- both corporate profits and shareholder dividends are taxed -- corporate profits are taxed at a lower rate than rates for individuals.

 

The corporation is -- if the corporate bylaws do not provide for something else -- managed by the board of directors.  The board is responsible for the execution of the decisions of the shareholders' meeting, for keeping the corporate books and minutes, and, in general, for the efficient management of the corporation's affairs.  The directors have a fiduciary duty of care and loyalty to the corporation.

 

The directors must be shareholders or representatives of a legal entity which is a shareholder.  Record own­ership of one share for each director will suffice.  The majority of the directors must be Swiss citizens or citiziens of a EC/EFTA-state residing in Switzerland.  This means that a German residing in Switzerland fulfills this requirement, while a Swiss or German citizien residing outside of Switzerland does not.

 

     

Roger Groner, Dr. iur., LL.M., Rechtsanwalt

www.gronerlaw.ch