Re-registration of a deleted GmbH in the Commercial Register

Facts

Parties:

• Appellant: [A. AG] , represented by attorney Daniele Favalli and attorney Roxane Schmidgall
• Respondents: 1. [B. GmbH] in liquidation, 2. [C.] , both represented by attorney Pio R. Ruoss and attorneys Pascale Gola and Martina Kümmerli

Facts:

• [A. AG] concluded a contract with [D. GmbH] (later renamed [B. GmbH] ) on September 20, 2016, for the establishment of an IT infrastructure and the provision of IT services.
• After the project failed, [A. AG] filed a lawsuit against [D. GmbH] on May 31, 2018, for damages due to non-fulfillment of the contract.
• Bankruptcy proceedings were opened against [B. GmbH] (formerly [D. GmbH] ) on January 31, 2019, and were dismissed for lack of assets on March 7, 2019. The company was deleted from the Commercial Register on June 14, 2019.
• On March 11, 2020, [A. AG] requested the bankruptcy court of the District Court of Zurich to re-register [B. GmbH] in liquidation in the Commercial Register and to reopen the bankruptcy proceedings.
• By judgment of April 30, 2020, the District Court ordered the re-registration of the company in the Commercial Register and the reopening of the bankruptcy proceedings in summary proceedings.
• The Higher Court of the Canton of Zurich partially upheld the appeal of [B. GmbH] in liquidation and [C.] on September 9, 2020, and dismissed the application for re-registration of the company in the Commercial Register. At the same time, it refused to reopen the bankruptcy proceedings.
• With an appeal in civil matters, [A. AG] requests that the application for re-registration of [B. GmbH] in liquidation be granted. Alternatively, the case should be referred back to the Higher Court.
• [B. GmbH] in liquidation and [C.] request the dismissal of the appeal with costs. The Higher Court waives a statement.
• At the request of the appellant, the appeal was granted suspensive effect on December 1, 2020, with regard to the costs.
• With regard to the reopening of the bankruptcy proceedings, a further appeal procedure is pending before the Federal Supreme Court (4A_857/2020).

Considerations

The Federal Supreme Court first examines whether the lower court rightly refused the re-registration of the respondent in the Commercial Register CO whether the respondent was even authorized to file an appeal against its re-registration. The decision on re-registration is subject to an appeal in civil matters to the Federal Supreme Court as a final instance pursuant to Art. 72 para. 2 lit. b no. 1 FSCA. It is a final decision (Art. 90 FSCA) of an upper cantonal court that has decided as an appellate court (Art. 75 FSCA). The Higher Court has quantified the amount in dispute at EUR 2,758,797.--, as the appellant seeks to satisfy a corresponding claim by re-registering the company in the Commercial Register. The required amount in dispute of CHF 30,000.-- pursuant to Art. 74 para. 1 lit. b FSCA is thus reached. The appeal is to be admitted in principle - subject to sufficient reasoning.

The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA), but it examines the complaints raised by the appellant, taking into account the general obligation to state reasons, unless the legal defects are obvious. In the appeal, the reasoning of the challenged decision must be addressed and it must be shown in detail where a violation of federal law lies. The Federal Supreme Court bases its judgment on the facts established by the lower court (Art. 105 para. 1 FSCA). This includes both the findings of fact relating to the factual situation underlying the dispute and those relating to the course of the pre-trial and first-instance proceedings. The Federal Supreme Court may only correct CO supplement the findings of fact of the lower court if they are obviously incorrect CO are based on a violation of the law within the meaning of Art. 95 FSCA (Art. 105 para. 2 FSCA). Obviously incorrect means arbitrary. Arbitrariness does not already exist when another solution is also to be considered CO even to be preferred, but only when the challenged decision is obviously untenable, is in clear contradiction to the actual situation, grossly violates a norm CO an undisputed legal principle, CO is in a shocking manner contrary to the sense of justice. The evaluation of evidence is therefore not already arbitrary when it does not agree with the representation of the appellant, but only when it is obviously untenable. The remedy of the defect must also be able to be decisive for the outcome of the proceedings (Art. 97 para. 1 FSCA).

The court may, upon request, order the re-registration of a deleted legal entity in the Commercial Register if it is made credible that the re-registration is necessary for the termination of the bankruptcy proceedings of the deleted legal entity. The person entitled to make the application is anyone who has a legitimate interest in the re-registration of the deleted legal entity (Art. 164 para. 1 lit. d and para. 2 CRO [in the version valid until December 31, 2020]). Even before the explicit regulation in the Commercial Register Ordinance, the entitled parties could demand re-registration according to constant practice, provided that it became apparent after the deletion that claims CO obligations still existed in the name of the company and that the deletion had been made unlawfully. It was sufficient that a creditor made a claim credible; strict proof was not required, but was reserved for the civil proceedings. The Federal Supreme Court has also adhered to this case law after the revision of the Commercial Register Ordinance, although Art. 164 para. 1 CRO now assigns the decision on re-registration to the court. The material existence of the claim is not to be decided within the framework of the decision on re-registration. Making something credible means that it is sufficient to convey to the court, on the basis of objective indications, the impression of a certain probability of the existence of the fact in question, without it being necessary to exclude the possibility that the circumstances could also be different. In assessing whether the conditions for re-registration are met, not too strict standards should be applied and only those applications should be rejected which appear to be abusive. This is the case for the applicant who demands re-registration without being able to invoke any legal interest in it. The requirements for making something credible should therefore not be overstretched, but they should not be set too low either. Mere assertion is not sufficient even in the present context to make a description credible.

The lower court initially affirmed the legitimacy of the respondents to appeal. It considered that, as a company again in liquidation CO as its organs, the respondents - analogously to the case law concerning the challenge of the reopening of the bankruptcy proceedings - were entitled to challenge the re-registration in the Commercial Register. The company had only been re-registered in order for the bankruptcy to be reopened over it. If the reopening of the bankruptcy proceedings were to fall away due to a successful appeal, this would also apply to the reason for the re-registration. It was therefore appropriate to affirm the legitimacy of the respondents to challenge the re-registration. The fact that the newly asserted claim was directed against the respondent was not…