Facts
X. AG (the appellant) is a corporation headquartered in A., whose majority shareholder and Chairman of the Board is B. Y. AG (the respondent) is a holding company headquartered in C., which holds a majority stake in [D. AG], a company in the precision machine tool industry. X. AG holds approximately 47% of the shares in [Y. AG], while the remaining shares are held by an unspecified number of shareholders, with a large portion belonging to brothers E. and F.
X. AG applied to the single-judge court in summary proceedings in the district of Bülach for the appointment of a curator for [Y. AG] under Art. 731b CO. The background is that [Y. AG] is alleged to have waived the repayment of a loan of over 15.1 million Swiss francs to a third-party company (H. AG), which X. AG believes has caused damage to the subsidiary D. AG. X. AG is of the opinion that the Board of Directors of [Y. AG], due to a conflict of interest, is unable to examine and assert the liability claims against the governing bodies of D. AG.
Considerations
The Federal Supreme Court considers X. AG's complaint to be unfounded. It states that while the alleged conflict of interest due to the dual board membership between [Y. AG] and [D. AG] could indeed exist, this circumstance does not result in the Board of Directors of [Y. AG] being incapable of acting and thus does not constitute an organizational deficiency within the meaning of Art. 731b CO.
Dual board membership is widespread in Swiss group practice and legally permissible in order to implement the legally prescribed group management. It therefore does not constitute an organizational deficiency, even if it can…