Der Verwaltungsrat 4.0

In the context of a mandate, the mandatee is required to perform the business entrusted to him in a diligent and faithful manner (Art. 398 para. 2 of the Swiss Code of Obligations, CO). The extent to which a mandatee may or must refuse to perform a mandate where there are grounds to suspect that the mandator is subject to sanctions was recently considered by the Swiss Federal Tribunal.

With the Federal Act on Sustainable Corporate Governance (NUFG), the Federal Council is departing from the practice of amending the Swiss Code of Obligations (CO) on a piecemeal basis. What is today set out in individual sections of accounting law will form the core of a separate act that goes considerably further, providing for liability for damage caused abroad, supervision backed by the power to impose sanctions and a special set of procedural rules. According to the Federal Council’s estimate, some 30 large companies would be subject to the extended due diligence duties – the number affected is considerably higher.

Shortly before a company collapses, its finances are reviewed one last time and funds are distributed. It is not uncommon for the remaining funds to be channelled not equally amongst all those who stand to benefit, but rather in a targeted manner – for example, to favoured suppliers, to the bank for which the managing director has provided a personal guarantee, or to a related company. The remaining creditors are often left with a certificate of loss. Swiss law addresses this behaviour on two levels simultaneously: under criminal law through the offence of undue preference to creditors in Article 167 of the Swiss Criminal Code (SCC), and under enforcement law through the avoidance action under Article 285 et seq. of the Swiss Debt Enforcement and Bankruptcy Act (DEBA), known as the ‘Pauliana’. The following article focuses on the criminal law aspect.