Facts

Parties:

  • Appellant: [A.A.] , represented by attorney Dr. Eric Buis
  • Respondent: [B. AG] , represented by attorneys Nicolas Facincani and Dr. Reto Sutter

Facts:

  • The [B. AG] has a board of directors consisting of [A.A.] , his brother [B.A.] , [C.] and [D.] (who has announced his resignation).
  • The appellant and his brother are in dispute and each hold 50.5% and 49.5% of the shares of the respondent, respectively.
  • On October 6, 2021, the appellant applied to the single judge at the Cantonal Court of SocRA to remove [C.] as a member of the board of directors and to appoint an independent third party to represent the respondent in various proceedings.
  • The single judge dismissed the application on November 19, 2021, and the Higher Court of the Canton of SocRA confirmed this decision on March 29, 2022.
  • The appellant filed an appeal with the Federal Supreme Court, which was treated with suspensive effect on August 5, 2022.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal and found that the dispute value threshold of Art. 74 para. 1 lit. b FSCA had been exceeded and the appeal deadline had been observed. The previous instance had determined a dispute value of CHF 505,000.--.

The appellant complained of a violation of Art. 731b CO, which provides for measures to remedy organizational deficiencies in a company. The Federal Supreme Court found that the previous instance had correctly held that the board of directors of the respondent was functional, as in addition to the parties in dispute, a third member was still registered on the board of directors. The previous instance had also correctly recognized that the appellant's allegations regarding the dysfunctionality of the board of directors and the instrumentalization of [C.] were not sufficiently substantiated.

The Federal Supreme Court emphasized that the previous instance had…