Refusal of a second exchange of writings and special review in a civil procedure

Facts

The appellant, X. AG, filed a request for special review against Y. SA with the general assembly, which was rejected. The appellant then seized the court of first instance, which also rejected the request. The appellant appealed this decision to the cantonal court, which confirmed the judgment of the first instance. The appellant filed a civil law appeal against this judgment with the FSCA.

The appellant criticizes the cantonal court for not ordering a second exchange of writings and for not instituting a special review. The appellant believes that the cantonal court violated its right to be heard and wrongly refused the special review.

Considerations

The FSCA examined the question of whether the cantonal court had violated federal law by not maintaining a second exchange of writings. The FSCA recalled that the appeal authority has great freedom of maneuver to order a second exchange of writings and that the FSCA can only review this decision with reserve.

The FSCA also examined the question of whether the appellant had made it plausible that organs had violated the law or the articles of association and had thus caused harm to the company…