Facts
In this case, it was about a claim filed by [Y. AG] in liquidation against X. AG as the former auditing firm. [Y. AG] alleged that X. AG as the auditing firm had breached its duties and thereby caused damage. X. AG then applied for the admission of the third-party notice claim against Z. AG (its predecessor as the auditing firm) and a former member of the board of directors of Y. AG.
The Commercial Court allowed the third-party notice claim against the board member, but not against Z. AG. X. AG appealed against this decision to the Federal Supreme Court.
Considerations
The Federal Supreme Court held that the lower court had wrongly refused the admission of the third-party notice claim against Z. AG. According to the provisions of the Swiss Civil Procedure Code (ZPO), the third-party notice claim must be admitted if the legal requirements are met. This includes, in particular, that the claim asserted with the third-party notice claim must be in a factual connection with the main claim.
In the present case, X. AG asserted a recourse claim against Z. AG pursuant to Art. 759 CO (joint liability of the governing bodies). Such a recourse claim is in a factual…