Virtual General Meetings under the new Swiss Corporate Law

Alain Friedrich
Alain Friedrich

The revision of the Swiss Corporate law which is expected to come into force on 1 January 2022 provides that a general meeting can be held without a venue and fully virtual (art. 701d nOR). The following blog article evaluates the new provision and shows which special measures have to be taken by a company to organise a virtual general meeting.

Under current Swiss Corporate law, it is controversially discussed whether general meetings can be held fully virtual. The majority of the scholars assumes that general meetings need to be held physically at one (or more) locations. The location is thereby determined by board of directors which is responsible for convening the meeting.

The new corporate law puts an end to the current uncertainty and explicitly provides that a general meeting can be held purely virtual, i.e. only by electronic means (e.g. by telephone or video conference) without an actual venue (Art. 701d nOR).

In order for companies to be able to hold virtual general meetings, the following arrangements need to be made:

  • Statutory basis: Virtual general meeting are only permitted if there is a corresponding statutory basis (Art. 701d para. 1 nOR). The corresponding amendment to the articles of association requires a majority resolution of the general meeting and must be notarised.
  • Regulation of the use of electronic means: Before a virtual general meeting is convened, the board of directors must regulate the use of electronic means and ensure (i) that the identity of the participants can be established, (i) that the votes in the general meeting can be directly transmitted, (iii) that each participant can submit motions and take part in the discussion and (iv) that the voting result cannot be distorted (Art. 701e nOR). The relevant regulations and findings must be documented either in a Board resolution or in organisational regulations.   
  • Convocation of the General Meeting of Shareholders: A virtual General Meeting of Shareholders must also be convened by the Board of Directors at least 20 days before the date of the meeting. Universal meetings are of course reserved. The notice to convene the meeting may only summarise the agenda items if the shareholders are provided with more detailed information by other means (e.g. electronically) (Art. 704 para. 4 nOR). Annual and audit reports must therefore also only be provided in paper form if they are not available electronically.
  • Independent voting proxy: Listed companies must designate an independent proxy when holding a virtual general meeting (Art. 701d para. 1 nOR). Companies whose shares are not listed on a stock exchange may waive the requirement to appoint an independent proxy. This waiver must have a basis in the Articles of Association and must be approved by a qualified majority of two thirds of the votes represented and a majority of the nominal value of the shares represented at the respective meeting (Article 704 (1) No. 15 nOR).
  • Minutes: The Board of Directors must keep minutes during a virtual general meeting. In particular, the minutes must show the date, the beginning and the end as well as the type and place of the general meeting; information on the shares outstanding and represented; the resolutions and the election results; the requests for information made and the replies given to such requests; the statements put on record by the shareholders and relevant technical problems arising during the conduct of the general meeting (Art. 702 para. 2 nOR). The minutes must be signed by the secretary and the chairman of the general meeting.
  • Technical problems: If technical problems occur during the virtual general meeting which lead to a meeting that cannot be conducted properly, it must be repeated. However, decisions taken before the technical problems occurred remain valid (Art. 701f North).

Finally, the question whether resolutions requiring notarisation (such as amendments to the articles of association) can be adopted during a virtual general meeting can only be answered based on cantonal law. In view of the possibility of a virtual general assembly now provided for under federal law, it is likely that – in the long term – notarisation of virtual meetings will be permitted.

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