Facts
A. filed a request with the president of the cantonal court of Obwald, as a director of company B. AG, to compel it to give him access to its books and records. The president of the cantonal court rejected this request, finding that there was no legal basis for an enforcement action to obtain information from members of the board of directors. The High Court of the Canton of Obwald also ruled in the same way. The Federal Tribunal upheld the civil appeal in this regard and referred the case back to the High Court for re-examination.Considerations
The Federal Tribunal considers that the rights to information and inspection conferred by Art. 715a CO on members of the board of directors of a public limited company can be judicially enforced through an action for performance. Although Art. 715a CO does not expressly mention this possibility, unlike Art. 697(4) CO which provides for legal recourse for shareholders, the Federal Tribunal considers that when the law grants a right, it must in principle be considered that it can be exercised in court, even if this is not expressly stated. The fact that the decisions of the board of directors are not subject to challenge does not preclude an action for performance against the company itself, which wrongfully refuses to provide the requested information. The Federal Tribunal…