New Swiss company law expected to come into force on 1 January 2023

The major revision of Swiss company law is expected to enter into force on 1 January 2023. After a few new regulations such as the gender quota for listed companies and transparency regulations for commodity companies already became law on 1 January 2021, the revision of company law is expected to take full effect at the beginning of 2023.

Essentially, the company law is to be adapted to today’s economic conditions and needs. Furthermore, shareholder and minority rights will be strengthened, and provisions that proved impracticable under the old law will be adapted or repealed.

Significant changes

The most significant changes concern the following topics:

• More flexible capital regulations: The share capital may also be denominated in USD, EUR, GBP or JPY if the respective currency is essential for the company’s business activities. The nominal value of a share may be less than 1 cent, but must still be greater than zero. Instead of the authorised capital increase, a statutory instrument is being introduced, the so-called capital band, which authorises the board of directors (“BoD“) for a maximum period of five years to increase or decrease the share capital within a range.  
   
• Greater flexibility in the conduct of the general meeting and passing of BoD resolutions; expansion of the list of important general meeting resolutions: It will also be possible to hold the general meeting virtually or abroad. The possibility of a virtual general meeting was already introduced during the Corona pandemic by COVID 19 Ordinance 2 and extended by COVID 19 Ordinance 3 until the entry into force of the new company law. However, if one wishes to continue to benefit from the possibility of a virtual general meeting under the new company law, a statutory basis is required and, in principle, an independent representative must be appointed.In addition, BoD resolutions may be passed in electronic form. Furthermore, the list of important general meeting resolutions that require a qualified majority by law will be extended.  
• Clearer rules in the event of imminent insolvency and over-indebtedness: The duty of the board of directors to monitor solvency and initiate restructuring measures in the event of imminent insolvency is expressly included in the law. The law already provided for a duty of the board of directors to act if the company is over-indebted or there is a corresponding concern. The conditions under which the notification of the bankruptcy court can be omitted in the case of over-indebtedness of the company are now clearly defined. 

Early amendments to the Articles of Association

On 17 January 2022, the Swiss Federal Commercial Registry Office (“EHRA“) published the notice on amendments to the articles of association with regard to the revision of the Swiss Company Law. Accordingly, it is possible to adopt amendments to the articles of association that are not subject to publication requirements (e.g. for continuing to hold virtual general meetings under the new legislation) this year at the next extraordinary or ordinary general meeting. The amendments to the articles of association can be registered in advance with the commercial register office as soon as the revised Commercial Register Ordinance has been passed by the Federal Council (scheduled amendment of the articles of association). However, it must be clearly stated in the articles of association that the new provisions of the articles of association will only apply from the time the new company law comes into force.

All other amendments to the articles of association in connection with the revision of the company law (for example, the introduction of the capital band) can also be passed already this year, but can only be registered with the commercial register office after the new company law has come into force. The general meeting must pass these amendments to the articles of association under the condition precedent that the new company law enters into force (conditional amendment to the articles of association). As soon as the new company law enters into force, the amendment to the articles of association can be registered with the commercial register office. Of course, the adjustments, which may be passed as “scheduled”, may also be made by a conditional amendment to the articles of association.

However, there is no obligation to amend the articles of association before the entry into force of the new company law. Companies will have a period of two years to amend any provisions of the articles of association that do not comply with the new company law.

We will publish further blog posts on the practice relevant topics of this major revision of company law in the coming months.

If you have any specific questions – especially with regard to any amendments to the articles of association in the current year – please do not hesitate to contact our team.

By Lukas Züst, Thomas Steiner-Krizaj & Peter Kühn, Vischer, Switzerland, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact switzerland@transatlanticlaw.com

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