New company law: arbitration clause in the articles of association (n° 16)

The new company law, which comes into force on January 1, 2023, brings many changes. In our current blog series, we present them in detail.

The articles of association can now contain an arbitration clause (art. 697n revCO). Arbitral tribunals offer the advantage of arbitrators who are particularly familiar with the subject or the industry, which can be an advantage especially in cantons without a commercial court. The arbitration clause also offers the advantage that the relevant arbitral award may be easier to enforce abroad, especially if the executing State is not a member of a corresponding international convention (such as the Lugano Convention ) and if local law does not recognize any decision. by a Swiss state court. The possibilities of limiting the publicity of the proceedings to the extent permitted by law and of adapting the proceedings to the needs of the parties are other advantages of arbitration.

The arbitration clause contained in the articles of association is directly applicable. No declaration of consent or adhesion, for example by the purchaser of the shares of the company, is required. However, the introduction of the arbitration clause requires a qualified majority of the general meeting (art. 704 al. 1 point 14 revCO). In addition, a reference to the articles of association must be entered in the commercial register if they contain an arbitration clause (art. 45 al. 1 lit. u revHRegV).

The statutes can only provide for an arbitral tribunal having its seat in Switzerland (art. 697n al. 1 revCO), but they can specify the specific procedural rules of an arbitral institution (art. 697n al. 3 revCO). The rules on domestic arbitration apply as mandatory rules (art. 697n al. 2 revCO), which means that, unlike international arbitration proceedings, no waiver of remedies is permitted. It is possible to challenge the arbitral award before the competent state court for procedural or arbitrary defect.

Provided that the articles of association do not restrict the objective scope of the arbitration clause, it applies to all disputes under company law (art. 697n al. 1 revCO). Arbitral disputes in company law thus include in particular actions for annulment and nullity (art. 706 and 706b CO), actions for dissolution (art. 736 al. 4 revCO), actions for (subsequent) contribution of capital ( art. 634b revCO), actions for restitution (art. 678 revCO) as well as actions for liability (art. 752 ss CO), but also for example the action for a special investigation order (art. 697d revCO). For more information on the special investigation, see our blog post from October 14, 2022.

The question of the subjective scope of the arbitration clause is also mainly governed by the statutes. These can determine who should be bound by the arbitration clause. The articles of association may therefore, for example, provide for arbitration only for disputes between the company and individual legal persons, so that arbitration is available, for example, for the enforcement of liability claims. If the articles of association do not specify otherwise the applicability of the arbitration clause, this binds the company, its corporate bodies and their associates as well as all the shareholders (art. 697n revOR). It is in the interest of legal certainty and the most uniform possible resolution of disputes that an arbitration clause, which does not contain any restriction, binds not only the company itself but also its organs, namely the general meeting of shareholders, the board of directors and the auditors as well as their members (in particular the individual members of the board of directors and the management). It is important to note that the arbitration clause of the articles of association cannot cover disputes between shareholders, in particular those arising from shareholders’ pacts. However, if you wish, arbitration clauses can be included in these agreements.

Amanda J. Marsh