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Prof. Dr. iur. Rolf Watter
Partner Bär & Karrer AG

Legal foundations: the practice of Circular Resolutions in Switzerland



At the end of 2017, the digital Circular Resolution (dCR) was integrated into the Sherpany Boardroom App. The new feature enables companies to take decisions remotely and in an asynchronous way. The dCR is the perfect way to confirm a resolution digitally, without the need to hold a meeting or a conference call. 

To find out more about the digital Circular Resolution (dCR) and how it is used around different European countries, we invited reputable lawyers to share their expertise on the practice of dCR. Our second interview is with Prof. Dr. iur. Rolf Watter, one of the most influential Swiss attorneys-at-law and partner at Bär & Karrer, a renowned Swiss law firm.



Sherpany: What are the legal foundations for Circular Resolutions in Switzerland (law, statutes, regulations)?

Rolf Watter: The legal foundations are to be found in Art. 713 Para. 2 of the Swiss Code of Obligations. Sometimes, the organisational regulations specify that the resolution is valid if no oral debate is requested by date X, and more than half the members have agreed by then.


Sherpany: What must be defined in the statutes and/or regulations in terms of Circular Resolutions for them to be legally valid?

Rolf Watter: The Circular Resolution per se is valid by law and nothing needs to be done. Yet the resolutions can be sped up (see answer to question 1) or the process can be facilitated, e.g. by confirming that an approval via e-mail is possible. The law itself stipulates the written form.


Sherpany: How widely spread are Circular Resolutions in Switzerland: high, medium, low?

Rolf Watter: The average company would probably make around 5 to 10 Circular Resolutions per year.


Sherpany: How are Circular Resolutions generally disseminated in your country (via post, e-mail, fax, digital or other)?

Rolf Watter: Traditionally by fax (as this is also considered to be a "written" form). Nowadays, regulations additionally allow the use of e-mail or digital procedures, to an increasing extent.


Sherpany: Are there regulations in your country in terms of Digital Circular Resolutions, particularly the use of electronic media?

Rolf Watter: There is an existing legal solution, but it requires a qualified electronic signature, which is still not very practical today. However, as stated above, regulations can also introduce simplifications.


Sherpany: Are there quorum-related requirements in regard to the dCR or what is your specific recommendation?

Rolf Watter: See on this regard question 1. All members must be contacted in writing, as any member can demand an oral debate. For taking the actual decision, a majority of all members is generally considered sufficient under most regulations.


Sherpany: In your opinion, are Digital Circular Resolutions legally permissible?

Rolf Watter: Yes, because they are better than a fax and offer more certainty that all members have been reached, and that the right persons respond.


Sherpany: When is a Circular Resolution void or contestable in your country? Who can contest it?

Rolf Watter: There is no nullity, if all members are contacted. Board resolutions cannot be contested.


Sherpany: Is there a form of best practice for Circular Resolutions in Switzerland? If yes, what does this entail?

Rolf Watter: See answers to the questions above – best practice today is that an oral debate can only be requested within a specific period of time.


Sherpany: In your country, must (Digital) Circular Resolutions be confirmed in the actual follow-up meeting? What is your recommendation in this regard?

Rolf Watter: It is often done because Art. 713 Para. 3 of the Swiss Code of Obligations requires that minutes of such resolutions are also drawn up. However, in practice, it is only said in the next physical meeting that X Circular Resolutions have been made since the last meeting – the text of the resolution is then sometimes incorporated into the minutes.


Sherpany: How are the results of Circular Resolutions generally disclosed by companies in SwitzerlandIs everyone named? Number of “yes” votes vs. number of “no” votes? Only the result? To those who voted? To the authorities?

Rolf Watter: The result is generally disclosed to those who voted in the form of a confirmation e-mail. The resolution has to be presented to authorities only when commercial register changes are to be made. It is still open how the authorities will respond in this case.


Sherpany: Which matters and types of resolutions are generally included in Circular Resolutions in the companies in Switzerland?

Rolf Watter: Mostly urgent and sometimes technical questions, such as granting a definitive approval of a deal that has already been discussed.

 

Sherpany: Thank you for your responses.

Prof. Dr. iur. Rolf Watter
Partner Bär & Karrer AG
Rolf Watter is a lawyer and member of various Boards of Directors; among others he is Chairman of the Board of Directors of PostFinance AG. Previous mandates included Nobel Biocare (President), Centerpulse, Syngenta and Zürich Insurance. He has been working as attorney for 30 years in the law firm of Bär & Karrer, where he was also for more than 10 years member of its Executive Board. In 1985, he completed his doctorate at the University of Zürich, and a year later was admitted to the Zürich Bar. In 1988 he completed his postgraduate studies at Georgetown University in Washington. Rolf Watter has been an honorary professor at the University of Zürich since 1996.

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