Rectification of the special audit report pursuant to former Art. 697e para. 2 CO

Facts

[A. AG] (the appellant) filed a complaint against a decision of the Cantonal Court of Zug, in which the Cantonal Court rejected the appellant's requests for non-disclosure of certain information in the special audit report. The applicants ([B.] and other co-participants) had previously filed a request for the ordering of a special audit at [A. AG] , to which the Cantonal Court had partially granted.

The Federal Court now had to decide whether the applicants are to be involved in the rectification procedure pursuant to former Art. 697e para. 2 CO or whether the Cantonal Court of Zug should be included as the respondent in the proceedings.

Considerations

The Federal Court states that the rectification procedure pursuant to former Art. 697e para. 2 CO is not designed as an adversarial procedure. Rather, the judge decides on the request of the company without the involvement of the applicants of the special audit procedure. The applicants are only given the opportunity to comment on the rectified report and to ask supplementary questions after the completion of the rectification procedure.

Accordingly, the applicants are not to be heard during the rectification phase and…