September 2019

In a recent new leading case (4A_623/2018 dated July 31, 2019), the Swiss Federal Supreme Court addressed a number of questions regarding the transfer restrictions for unlisted registered shares. On the one hand, the Supreme Court confirmed the standing of the buyer of the shares to bring an action against the rejection of the transfer of the shares by the company. On the other hand, the Court held that the so-called "Business Judgment Rule" is not applicable for the review of the decision of the board of directors to reject the transfer of shares. However, in reviewing the board's decision to invoke the "Escape Clause" the Supreme Court also exercises restraint. Finally, the Supreme Court rejected the extension of the majority shareholder's contractual share transfer duty to a company by such shareholder.