Corporate liability claims
We advise shareholders and creditors on liability claims against corporate officers under Swiss law. We examine possible breaches of duty, loss and standing, and assess evidence, deadlines and litigation risks with you.
A breach of duty is not the same as a business loss
Corporate liability generally requires loss, breach of duty, causation and fault. Poor business results alone are insufficient. Depending on their role, directors, executive officers and other persons covered by statute may be liable.
Business decisions are not judged solely in hindsight by success. The decision-making basis, conflicts of interest and a diligent process are among relevant factors. Actual function may matter more than the formal title when determining officer status.
Whose loss is claimed?
Company loss that merely reduces share value must be distinguished from direct personal loss. Under certain conditions, shareholders may claim payment to the company for company loss; this does not imply payment to themselves.
For creditors, opening bankruptcy substantially changes pursuit of claims. Claims belonging to the bankruptcy estate, waiver by the bankruptcy administration and assignment must be examined. Personal direct claims additionally depend on the type of duty breached and the loss circumstances.
Evidence, deadlines and costs
Annual accounts, payment flows, minutes and timelines are central to assessment. Information rights and court evidence procedures do not replace full preparation. A criminal allegation does not automatically prove all elements of a civil claim.
Limitation, possible interruption, discharge resolutions and transitional law must be examined early. Litigation costs and the counterparty's solvency belong in the strategy. D&O insurance does not provide cover in every situation.
Frequently asked questions
Can I sue the board because share value has fallen?
A price or value decline alone is insufficient. First establish whether the loss belongs to the company or is your own direct loss. For company loss, a shareholder action generally seeks payment to the company.
What are the requirements for a corporate liability claim?
Generally, loss, conduct in breach of duty, causation and fault must exist. The correct defendant and standing are also required. An unsuccessful but carefully prepared business decision does not automatically create liability.
Can I act directly against directors as an unpaid creditor?
Not simply because of non-payment. The claim's legal basis and distinction between direct creditor loss and company loss are decisive. Special rules govern pursuit of company claims in bankruptcy.
Do I first need to file a criminal complaint?
No, a civil action does not generally require criminal proceedings. The two procedures serve different purposes and have their own requirements. A criminal complaint does not automatically preserve civil deadlines.
Who receives awarded compensation?
This depends on the claim pursued. In a shareholder action for company loss, payment generally must be directed to the company. Personal losses and pursuit of claims in bankruptcy require separate examination.
How long can I wait before bringing a claim?
Statutory limitation rules and possibly additional exclusion periods apply. Knowledge of loss and the liable person, the timing of conduct, criminal-law connections and transitional law may be relevant. Have the specific deadlines clarified early.
Complex questions from practice
How can company loss be pursued if the bankruptcy administration does not bring a liability action itself?
Filing a creditor claim alone does not automatically entitle you to sue corporate officers. Review the bankruptcy estate's waiver and conditions for assignment under the SchKG or pursuit of claims under company law. The assignment decision and right to conduct proceedings determine further options.
Preserve the decision, available company documents and information on the alleged breach. Cost risk and distribution of possible litigation proceeds also belong in planning. The personal creditor claim must not be confused with the company loss asserted.
How is loss allegedly caused by late notification of over-indebtedness calculated?
The relevant measure is generally the provable deterioration caused by continuing the company in breach of duty. The total of unpaid invoices therefore does not automatically equal compensable loss. The correct comparison date, interim accounts and liquidation values often require expert support for reliable determination.
Besides calculation, breach of duty, causation and standing must be reviewed separately. Documented development of the financial position is central. More precise reconstruction of decisions and figures enables a better assessment of the claim's viability.
Can several directors be held jointly liable for the same loss?
Several corporate officers may be liable under differentiated joint and several liability rules. Responsibility does not, however, follow from board membership alone. Individual fault, allocation of duties and attribution of loss affect each person's liability.
Review roles, contributions to decisions and evidence separately. Solvency and litigation costs also matter when choosing defendants. An indiscriminate claim against everyone involved may increase risks without actually improving enforcement.
How do I secure liability claims when limitation threatens to expire during settlement talks?
Settlement talks do not automatically interrupt limitation. A valid limitation waiver or appropriate interrupting act must be considered in time. Parties, claim and scope of protection should be precisely identified. Special deadlines relating to discharge resolutions must also be observed.
Create a deadline overview and do not rely on a general promise to talk. Even in constructive negotiations, it should be clear when protection must be in place. Talks can then continue without unknowingly losing important enforcement options.