The Swiss Arbitration Centre unveiled the Swiss Supplemental Rules for corporate law disputes (hereinafter referred to as Supplemental Rules). The document has been published together with a model statutory arbitration clause.
The Rules will enter into force as from 1 January 2023, at the same time as the new Article 697n of the Swiss Code of Obligations.
The new amendments to the Swiss Code of Obligations will enter into force on 1 January 2023. In particular, it concerns the introduction of the new Article 697n CO, which provides for the possibility for:
- Swiss companies limited by shares
- Swiss partnerships limited by shares and
- Swiss limited liability companies
to include an arbitration clause in their Articles of Association. The above-mentioned companies may decide to entrust an arbitral tribunal seated in Switzerland with the settlement of the corporate law disputes for the purpose of the arbitration clause and the new article of the Swiss Code of Obligations.
The corporate law disputes covered by the recent revision may relate to:
- challenges against resolutions of the general meeting;
- declaratory actions regarding the nullity of resolutions of the general meeting or the board of directors;
- liability actions against members of the governing bodies of the company;
- actions for the return benefits improperly distributed to shareholders, members of the board of directors and persons involved in the management of the company;
- actions for an appropriate compensation payment following a restructuring or
- actions for the dissolution of the Company
The newly introduced article provides that the arbitration clause shall be binding on the company, its corporate bodies and shareholders unless otherwise provided for by the company’s Articles of Association.
In light of the new provisions, the Swiss Arbitration Centre issued the Supplemental Rules to supplement the existing Swiss Rules of International Arbitration.
The purpose of the Supplemental Rules is to regulate the management and conduct of arbitration proceedings for corporate disputes.
Notwithstanding the inclusion of the arbitration clause in the Articles of Association, the Supplemental Rules will apply to arbitration proceedings commenced on or after 1 January 2023.
The Supplemental Rules consists of six articles:
- Article 1 – Scope of application
- Article 2 – Information regarding the commencement and termination of arbitration proceedings
- Article 3 – Appointment of Arbitral Tribunal
- Article 4 – Participation of third persons
- Article 5 – Information regarding the course of the arbitration proceedings
- Article 6 – Interim measures and emergency relief
The Supplementary Rules propose the formulation of a model arbitration clause, to be included in the company’s Articles of Association, which contains some indications on both the mandatory and optional content for the validity of the clause. There is no doubt that the content shall reflect the features and needs of each company, therefore, after legal consultation, it shall be formulated ad hoc.
The entry into force of these amendments will certainly lead benefits for companies.
Entrusting a corporate dispute to arbitration instead of a state court may generate both time and cost savings and ensure a more efficient conduct of the proceedings.
Arbitration may guarantee the resolution of the dispute with a confidential award, ensuring the confidentiality of corporate information concerning the parties involved.
