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Corporate Self-Dealing. A Legal Comparison between Hong Kong and Switzerland

Forschungsarbeit 2015 30 Seiten

Jura - Andere Rechtssysteme, Rechtsvergleichung

Leseprobe

Contents

List of Abbreviations

1 Introduction

2 Definition of Contracting with Oneself

3 Contracting with Oneself in Switzerland
3.1 General Principles and Legal Foundation
3.2 Rules for Admissability of Contracting with Oneself
3.2.1 Transactions based on Authorization or Consent of a Su­perior Body
3.2.2 Transactions for the pure Benefit of the Principal
3.2.3 Transactions for Settling an Obligation
3.2.4 Transactions with a Market Price
3.2.5 Transactions amongst Group Companies

4 Contracting with Oneself in Hong Kong
4.1 General Principles and Legal Foundation
4.2 Rules for Admissability of Contracting with Oneself
4.2.1 Conflict Rules
4.2.2 Consent
4.3 Transactions in breach of Conflict of Interests
4.4 Admissability of Contracting with Oneself
4.4.1 Transactions amongst Group Companies

5 Conclusion

List of Abbreviations

illustration not visible in this excerpt

1 Introduction

Conflict of interests is regarded as a ’’cross-cutting problem” of corporate gover nance[1] and has been defined as a ’’situation in which an individual or a corporation (either private or government) is in a position to exploit a professional or official capacity in some way for their (or that of a related party) personal or corporate benefit”[2]. Due to the negative effects on a company in general, conflict of inter­ests need to be avoided[3].

There are many situations where a conflict of interests may arise. Contracting with Oneself is one of them and is very closely related to the definition as pro­vided above. Contracting with Oneself, like conflict of interests in general, could be for the advantage but also for the disadvantage of a company and therefore, as it has been correctly described ”may not, in and of itself, be an evidence of wrongdoing”[4].

However, the problem of Contracting with Oneself is inherent as it could be misused for diverting company’s assets to a specific person[5] (e.g. ’’executive perquisites, excessive compensation, transfer pricing, appropriation of corporate opportunities”, etc[6]. The question in this regard is how Contracting with Oneself can be addressed by law and regulation and how to find the golden path between allowing it, if it is for the overall benefit and when and how to restrict it, if it has a negative effect. Additionally, the restrictions must be effective before Contracting with Oneself becomes a legal problem that may lead to a personal benefit of a specific person[7].

Even though it is said that Contracting with Oneself is commonplace in emerg ing markets[8], it is not restricted to a specific jurisdiction and also occurs in devel­oped countries or SARs like Switzerland and Hong Kong. This research paper aims to review and compare the solutions regarding Contracting with Oneself as found in Switzerland and Hong Kong. In a first part, the paper provides a defi­nition of the term "Contracting with Oneself’. The second part investigates the different solutions of Switzerland and Hong Kong.

2 Definition of Contracting with Oneself

One of the core principals in corporate laws around the world is the fact that corporations have a legal personality and legal capacity[9]. In other words, they are separate legal entities which means that they are separated from their shareholders or investors and they are responsible for their own debts[10]. However, in daily life, corporate directors, willingly or unwillingly, tend to disregard this separation and as a result, may think that the assets of the company forms part of their private wealth[11].

The term ’Contracting with Oneself’ includes "Self-Dealing and Double Representation"[12]. Whereas the term "Self-Dealing" refers to a situation where "a person with authority concludes a transaction with himself’[13], the term "Double Representation" is defined as a situation where a "person with authority represents both sides of a transaction"[14]. However, Contracting with Oneself can also occur between persons and companies that are "closely related to" each other[15]. For the purpose of this paper, Contracting with Oneself is defined as being a transaction between:[16]

- ”the company and a director”;
- the company and a third person (provided the ”the director has a ’’personal interest” in the welfare of the” third person);
- the company and its subsidiaries; and
- the company and a third legal entity (provided the ”the director has a ’’per­sonal interest” in the welfare of the” third legal entity).

3 Contracting with Oneself in Switzerland

3.1 General Principles and Legal Foundation

CO 718b, which is in force since January 1, 2008, contains specific rules regarding Contracting with Oneself which states in the first sentence that ”if the company is represented in the conclusion of a contract by the person with whom it is concluding the contract, the contract must be done in writing”. According to prevailing doctrine, if not done in writing, the transaction is void[17]. In the second sentence, the same provision (CO 718b) further stipulates that ”this requirement does not apply to contract relating to everyday business where the value of the company’s goods or services does not exceed 1,000 francs”. CO 718b has been included based on the experience of the Swiss Supreme Court that in practise, a conflict of interest is quite common in corporate dealings[18].

Additionally, CO 663bbis[1] requires ’’companies whose shares are listed on a stock exchange” to add ’’additional information in the notes to the balance sheet”. These additional information include, amongst others, direct or indirect remuner­ations and loans distributed to ”the board of directors, executive board and board of advisors” as well as ”close associates”[19].

Switzerland has also enacted the OAEC which entered into force on January 1, 9 2014. According to this ordinance, which is only applicable to public companies (OAEC 1), board and executive compensation must be approved by the general assembly (OAEC 2 para 4). The ordinance explicitly forbids, amongst others, severance payments (OAEC 20 para 1), signing bonuses (OAEC 20 para 2) and other bonuses related to M&A (OAEC 20 para 3).

Besides this very broad rule, the lawmaker in Switzerland did not enact any 10 other laws that would further define or limit the scope of Contracting with Oneself in the context of a corporation[20].

However, the private organization ”Ecenomiesuisse” has enacted the ”Swiss 11 Code of Best Practice for Corporate Governance” (SCBP) in the form of a rec­ommendation to all public companies[21]. In the preamble, the SCBP clarifies the following:

”the purpose of the “Swiss Code” is to set out guidelines and rec­ommendations. However, it should not force Swiss companies into a straitjacket. Every company should retain the option of putting its own ideas on organising corporate governance into practice.” [22]

The SCBP is not a law and as a consequence not legally enforceable[23]. However, 12 it is considered when interpreting director's duties according to the CO[24]. Further­more, compliance with SCBP is not a requirement for the listing on a Swiss stock exchange[25]. SCBP requires the following in relation to a conflict of interest:

”lfa conflict of interest arises, the member of the Board of Directors or the Executive Board concerned should inform the Chairman of the Board of Directors. The Chairman, or Vice Chairman, should request a decision by the Board of Directors commensurate with the seriousness of the conflict of interest. The Board of Directors should decide without the participation of the party concerned.”[26]

Similarly, the SIX Swiss Exchange issued a “Directive on Information Relating to Corporate Governance”[27]. This directive requires companies, amongst others, to publish certain information of the board of management based on the principle “comply or explain”[28]. Further rules regarding Contracting with Oneself have been developed by court practice[29] and legal scholars as shown and discussed further below[30].

According to prevailing doctrine[31] and Swiss Supreme Court Decisions[32], Contracting with Oneself is not permissible in Switzerland. This holds true even despite the fact that the Swiss legislator has enacted CO 718b [33]. Furthermore, Contracting with Oneself may constitute a violation of the duty to care[34] and may ”lead to liability in the internal relationship”[35].

Because of the fact that Contracting with Oneself is not permissible in Switzerland, such an agreement would also be ineffective[36]. This irrespective of whether the person in question acted within its legal capacity because such a person usually always acts in bad faith[37]. Furthermore, CO 678 requires to return benefits that "shareholders and members of the board of directors and their close associates have unduly and in bad faith received”. However, the transaction, in limited cir­cumstances, may be valid if concluded with a bona fides third party[38]. The reason being that such a person can rely on the representatives authority which is only limited by the company’s objects[39].

According to prevailing doctrine and Supreme Court Decisions, Contracting with Oneself is permissible in two situations: (1) when a disadvantage of the prin­cipal can be excluded based on the nature of the transaction and (2) when the principal agrees[40]. Based on Supreme Court Decisions, the following circum­stances may not constitute a conflict of interest and therefore, Contracting with Oneself would be allowed:[41]

- transactions for settling obligations;
- transactions for the pure benefit of the principal; transactions amongst group companies;
- transactions with a market price; and
- transactions with specific contractual consent.

3.2 Rules for Admissability of Contracting with Oneself

3.2.1 Transactions based on Authorization or Consent of a Superior Body

According to prevailing doctrine and Swiss Supreme Court decisions, Contracting with Oneself is always permissible if the principal agrees and gives his explicit or implicit consent to the transaction[42]. This consent can be given ’’upfront or retrospectively”[43] by a member of the board of directors who is not affected by the same conflict of interests[44]. If another member of the board of directors has 18

single signatory authority, his | her consent is sufficient, if he | she has joint signatory authority, at least another board members must agree[45]. In the case where the board of directors only consists of one member, by nature, an approval of another board member is not possible[46]. In such a situation the approval of the general assembly as the highest body in a corporation would be required[47]. A part of the legal doctrine mentions a ’Fairness Opinion” as an alternative to the approval of the board or general assembly, however, this is highly controversial[48].

As a result, contrary to Hong Kong[49] and France, Switzerland does ”not know a formal process regarding notification for transactions” with a conflict of inter­ests[50].

3.2.2 Transactions for the pure Benefit of the Principal

If a transaction is only for the benefit or advantage of the principal and excludes any kind of disadvantage, a conflict of interest can practically be excluded[51]. Common examples of such transactions are gifts or guarantees[52]. However, if the transaction constitutes a synallagma, in such a case it cannot be considered as being for the pure benefit of the principal, furthermore, amongst, others, the following transactions cannot be regarded as being for the pure benefit of the principal: ’’gift with condition(s)”, "ancillary obligation duties”, ’’risk of liabil­ity based on tort law”, ’public charges”, ’encumbrances”, ’unjust enrichment”, ’claims for return”, ’’transfer of stake in companies” and ’’take-over of obligations based on statutory law”[53]. A transaction for the pure benefit of the principal is, according to legal doctrine, only in case of self-dealing possible as in case of a ’’Double Representation [...] one party usually suffers a disadvantage compared to the other”[54].

3.2.3 Transactions for Settling an Obligation

This exception dates back to a Swiss Supreme Court Decision from 1913[55], however, the term has never been defined so far[56]. ’Generally, all kinds of acts of performances are permissible”, i.e. ’provision of a good”, ’payment of a debt”, ’cession of a claim”[57].

”The fulfilment of the representative’s obligations to the principal” does not raise any issues[58], however, things are different when ”the representative is the creditor of the principal and fulfils” the obligations of the principal to himself[59].

In such a situation, the representative may act if the ”claim is due, payable, en­forceable and undisputed”[60]. When considering an obligation where the debtor has the option to choose a way of performance (Wahlobligation) according to CO 72, the principal ”must have given the right to choose the option” of the perfor­mance to the representative[61]. The same holds true for substitute performances (ErfUllungssurrogate) and extinction by agreement (Erlassvertrag) according to CO 115 [62].

A set-off on the other hand is generally unproblematic as long as the legal prerequisites according to CO 120 are fulfilled[63]. It is disputed whether a set­off is still permissible if these prerequisites are not fulfilled or the obligation(s) disputed in general[64].

3.2.4 Transactions with a Market Price

If there is a market price for a transaction while Contracting with Oneself, the likelihood of a disadvantage for the principal is remote, however, cannot be fully excluded[65]. Nevertheless, the Swiss Supreme Court held in a decision that Con­tracting with Oneself is permissible if it is based on a market price[66].

Swiss legal doctrine generally understands a market as a place where ”buyer and seller meet for the conclusion of a sale agreement”[67]. The Swiss Supreme Court defines the term ’’market price” as a ”price that evolves based on regular deals for a product of a specific kind and class at a specific place and time”[68].

Clearly within the scope of this definition are prices based on a stock exchanges[69]. However, a market price does not mean that Contracting with Oneself is generally permissible[70]. As an example, the representative may sell goods at a market price ”that are not for sale” or ”are only sold so that the representative may declare a set-off’ for a claim or obligation he has against the principal[71].

Whether the object in question can externally be valued in case a market price is absent[72] is controversially discussed in Switzerland[73] and a part of legal doctrine specifically excludes real estate and arts[74].

3.2.5 Transactions amongst Group Companies

Whenever a member or the board of directors represents two group companies at the same time in form of a Double Representation, a conflict of interest is likely to occur.'[75].

For members of the board of directors of group companies, the core question is whether they can act in the interest of the group or whether they only can act in the interest of the entity they are representing[76]. This is apparently unproblem­atic when the ’’interests of the group” are aligned with ”the interests of the single entity”[77]. According to Swiss legal doctrine, this may be the case whenever ”the articles of incorporation mention in the objectives that the entity forms an inte­gral part of the group”[78]. Furthermore, according to the Swiss Supreme Court, whenever the holding company holds 100% of the shares of the subsidiary[79] or the ’’representative as a natural person is the only shareholder”[80].

Therefore, Switzerland ’generally allows double representation in group companies”[81] as it is assumed by the Swiss Supreme Court that in a group company, consent is given from the respective shareholder(s)[82].

In the case where a group company has minority shareholder who presumably doesn’t agree to the transfer of assets from one group company to an other, such a deemed consent cannot be considered[83]. In such a circumstance the permission from the general assembly would be required[84].

4 Contracting with Oneself in Hong Kong

4.1 General Principles and Legal Foundation

Like Swiss law, Hong Kong law distinguishes between technical ability and legal authorisation whereas technical ability describes the internal relation and legal au­thorisation the external relations[85]. Furthermore, similar to Swiss law, the legal authorisation is limited by the objects of the company[86]. The result of overstep­ping the legal authorisation as limited by the objects of the company is the same as in Switzerland: externally (meaning for a bona fides third party) it is valid, internally it is invalid if not approved[87].

As a general principle of common law, directors should not maneuver themselves into a situation where a conflict of interest may arise[88]. This ”no conflict duty” has to be actually lived[89] and additionally, when talking about honesty, Hong Kong courts tend to have high expectations and will generally apply a rig­orous test regarding conflict of interests[90]. According to Kwan[91], this is shown in the following famous and often quoted decision by Lord Herschell:

”It is an inflexible rule of a court of equity that a...[fiduaciary]...is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict.” [92]

Therefore, as a general rule, Hong Kong seems to follow the Swiss approach of not allowing to Contract with Oneself. However, as in Switzerland, exceptions are permitted if a conflict of interest based on the nature of the transaction cannot occur. This has been shown in two court decisions where one court stated that there must be a ”real sensible possibility of conflict”[93] and the other that ”a real or substantial possibility of conflict” must be given[94]. Legal doctrines considers the case ”where a director enters into a transaction with the company” as the ’’clearest example” of a conflict of interest, however, it is also clear that this ””no conflict rule” does not mean that a director can never contract with the company”[95]. Ac­cording to court decisions, ”the duty to avoid conflict of interests can” even be violated ”if the transaction is fair”[96]. This makes sense when considering that the duty of a director is to abstain from a conflict of interests[97]. As a result, a viola­tion of that rule cannot be justified by a fair transaction which would undermine the whole principle[98]. This is in line with Switzerland that forbids Contracting with Oneself in general unless certain exceptions are given (See tab 16 above). Whether the transaction is fair for the company cannot play a role when there is an inherent conflict of interest. Fairness may only play a role in case of permissi­ble group transactions where, partly from a tax law perspective, the deal must be carried out at arm’s lenght[99].

It may be argued that under Hong Kong law, this ”no conflict rule” may factually prevent a director from becoming a director in another company if these com­panies are competitors, however, court decisions in this respect are not clear[100].

In most cases, an answer or at least a guidance may be found in the articles of in­corporation or the labour contract which may restrict the employment of another company in one way or the other [101]. Anyway, a director that accepts a position in a competing company may find himself by definition in a conflict of interest. Or as Lo has stated it: ’’Generally person who is director of two competing compa­nies falls foul of no conflict rule in absence of informed consent of companies”[102].

The same principle applies in Switzerland as directors always have to act in the interest of the company they are representing or working for[103]. As a result, if a person is a director in two competing companies a conflict of interest is inherent and it cannot be reasonably argued that such a person can act on the interest of both companies at the same time.

4.2 Rules for Admissability of Contracting with Oneself

4.2.1 Conflict Rules

Contracting with Oneself is not permissible in Hong Kong if there is a risk of a conflict of interest[104]. Vice versa, if such a conflict cannot arise, Contracting with Oneself is permissible. Furthermore, a conflict of interest can be excluded if the principal has received a notification and gave his consent[105]. Therefore, like Switzerland, Hong Kong defines two exceptions: (1) cases where a conflict of interest is not present and (2) cases where the consent of the principal is given.

In contrast to the Swiss CO, the Hong Kong Company Law Ordinance (herein called CLO) provides detailed rules regarding how the principal has to be in­formed of a conflict of interest. Like in Switzerland, the CLO was recently amended (2014) and the rules regarding the disclosure of a conflict of interest clarified[106]. CLO 536(1) requires a director to disclose any interest ”in a transac­tion, arrangement or contract”, whether proposed or not which are ’’significant in relation to the company's business, and the director's interest is material”. Addi­tionally, according to CLO 536(2) directors of public companies (e.g. according to CLO 12 a company that ”is not a private company; and it is not a company lim­ited by guarantee”) must disclose their material interest in their connected entities in a similar manner.

4.2.2 Consent

Like Swiss law, Contracting with Oneself is permissible in Hong Kong if the consent of the principal is given[107]. In Hong Kong, according to Lo, the conflict of interest has to be disclosed to the general assembly who in turn can give its consent to the transaction[108]. The Swiss solution slightly differs here as under Swiss law, it is sufficient if the consent is given by an unconflicted member of the board of directors[109]. Switzerland would require the consent of the general assembly if the board of directors only consists of one member or where all di­rectors are conflicted[110]. The Swiss solution, however, is also possible in Hong Kong if stipulated in the articles of association[111]. In such a case, the articles of association may simply state that the approval or consent from the board of direc­tors is sufficient[112]. For this purpose, a company may use the Model Articles[113] which clarifies in Clause 16 that disclosure must be made to the board of direc­tors who will subsequently vote. According to legal doctrine, it is not entirely clear whether such a provision in the articles of association will constitute a full waiver from informing the general assembly[114]. However, as has been logically be argued by Lo, such a provision may be considered as a deemed consent and therefore, the general assembly does not need to be informed[115].

The Model Articles do not directly address the situation where all board of directors are conflicted. It only states that an affected member cannot vote[116]. In such a situation, the logical solution must be that board of directors cannot give their consent and as a result, must must seek approval from the general assembly as the higher authority. In a similar manner, the Listing Rules also exclude the affected board of director members from voting[117]. The Model Articles may of course be changed and the Guideline for Directors mentions in this respect that the articles of association may be altered in a way that would allow the director to vote even in case of a conflict of interest if properly disclosed[118]. However, this must be differentiated. The statement is correct if, and only if the other board members agree and do not find themselves in a conflict of interest. In any other situation, e.g. where all members are conflicted or do not agree that the conflicted member votes, the member in question should not vote[119].

As has been shown above, CLO 536 requires a director to disclose a conflict of interest to the directors. Such a declaration must be made when the director enters into ”a transaction arrangement or contract” ”as soon as reasonably prac­ticable” or, in case of ”a proposed transaction, arrangement or contract”, ’’before the company enters into the” respective transaction[120]. Such a declaration may be made (1) at a ’’directors’ meeting”, (2) ”by notice in writing and sent by the director to the other directors”, or (3) ”by general notice by the director”[121].

CLO 536 only mentions that a conflict of interest must be disclosed to the directors but does not state that an approval is required. However, the CLO is not a complete codification but merely a supplement of the general rules[122] and therefore, if not specifically regulated in the articles of association, approval must be obtained from the general assembly[123].

4.3 Transactions in breach of Conflict of Interests

The core principles regarding Contracting with Oneself in Switzerland and Hong Kong are the same. The two jurisdiction follow the same path when stating that Contracting with Oneself is not permissible unless consent from the principal is given or a conflict of interest absent. However the two jurisdiction have cho­sen different approaches regarding the definition of conflict interest. Whereas Switzerland forms categories of cases where such a conflict of interest is absent, Hong Kong focuses in its CLO on cases where it is assumed that it is given. In other words, Switzerland gives positive examples of what is allowed and Hong Kong on the other hand gives negative examples of what is clearly not allowed.

The CLO defines several cases where a conflict of interest is deemed to be given. These are:

- Service Contracts: CLO 534 requires a memorandum on behalf of the general assembly, whenever a service contracts is about to be concluded with a director that may exceed 3 years. The general assembly has the power of approval. As there is a clear conflict of interest in such a circumstance, Switzerland would also require an approval. Additionally, it is also ad­dressed in the OAEC[124].
- Loss of Office Payments: CLO 521 requires a company to get shareholder’s approval if it wishes to make payments for the loss of the office of a director. CLO 516(3) extends this to (a) "payment to an entity connected with the director; and (b) payment to a person made at the direction of, or for the benefit of the director or an entity connected with the director”. As a conflict of interest is inherent in these cases, Switzerland follows the same path. However, additionally, Switzerland has addressed this with the OAEC[125].
- Loans and similar credit transactions (CLO 500 et seqq.): Loans are subject to certain rules, however can be made ”to directors subject to shareholder’s approval”.[126]. In this respect, the CLO distinguishes between loans where the rules are applicable to all companies[127] and such that are only applicable to specified companies[128]. However, certain loans are exempted from these rules[129]. Loans between companies and its directors are always prone to have a conflict of interest so that this provision does not come as a surprise.

Like Switzerland, Hong Kong also requires public companies to disclose such loans in the note to the financial statement[130]. This rule ensures that the public is informed about loans made to the directors[131].

4.4 Admissability of Contracting with Oneself

4.4.1 Transactions amongst Group Companies

Naturally, a conflict of interest cannot arise if the the sole director is also the sole shareholder of the a company[132]. This constellation occurs often in small companies and group companies where a holding company or a natural person holds 100% of the shares[133]. In such circumstances, Switzerland has adopted a rule that generally allows dealing as naturally, there is no one else who could approve the transaction[134]. In the material consulted for this paper, no specific rules could be identified regarding this topic in Hong Kong. However, CLO 545 foresees a provision in case where the following conditions are met:

- ”a company having only one member enters into a contract with the mem­ber;
- the member is also a director of the company; and
- the contract is not entered into in the ordinary course of the company’s business.”

According to CLO 545(2), if such a contract is not in writing (or at least 48 a memoranda provided) it may constitute an offence[135], however, the contract would still be valid[136]. This rule slightly differs from the general Swiss approach insofar as the contract would not be valid[137] but on the other hand it does not constitute an offence. Whereas the CLO states that writing is only required when

[...]


1 Peters and Handschin [33], page 1.

2 Corporation [6], page 3; similar Bohinc [2], page 3, Clarke [5]; Hirschey, John, and Makhjija [21], page 59.

3 Bohinc [2], page 4.

4 Corporation [6], page 3.

5 Djankov et al. [11], page 1.

6 Vishny [46], cited after Djankov et al. [11], page 1.

7 Corporation [6], page 3.

8 Nenova and Hickey [30], page 1.

9 see in general MacDonald [29] and Paul [32]; see as an example CC 52 and 53.

10 Horn [23], page 934.

11 Edie [13], page 1.

12 Strassle and Crone [44], page 340; see also Schwenzer [40], N 42.19 and Watter and Schneller [50], Article 33, N 19 with further references.

13 Strassle and Crone [44], page 340; see also Schwenzer [40], N 42.19.

14 Strassle and Crone [44], page 340 with reference to Stutz and Crone [45], page 103; see also Schwenzer [40], N 42.19 and Stutz and Crone [45], page 103.

15 Edie [13], page 2 et seq.

16 Enriques [14], page 299 with further references on point two.

17 Watter [49], Article 718b N 11 with further references.

18 Watter [49], Article 718b N 1 with references to: BGE 127 III 332; 126III361 and 120II 5.

19 for exact wording consult CO 663bbis1 ; for further details see Neuhaus and BlAttler [31], Article 663bbis1.

20 Stutz and Crone [45], page 104 with reference to German law and court cases.

21 Economiesuisse [12].

22 preamble SCBP.

23 BOckli [1], § 14, N 319 and 321 et seq., cited after Daeniker and Nikitin [9], page 111 with a further reference.

24 BOckli [1], § 14, N 319 and 321 et seq., cited after Daeniker and Nikitin [9], page 111 with a further reference.

25 which is ’’contrary to an international trend” according to BUhler [3], page 235 et seq. with various references regarding the international trend.

26 SCBP 17.

27 Exchange [16].

28 KPMG [24].

29 see as an example: BGE 39 II 561; BGE 50II168; BGE 57 II 556; BGE 63 II173; BGE 82II 388; BGE 89 II 321; BGE 95 II442; BGE 95 II617; BGE 99 Ia 1; BGE 106 Ib 145; BGE 126 III 361; BGE 127 III 332.

30 e.g. the incorporation of ”the business judgement rule” and ’’dealing at arms length” as pro­ posed by legal doctrine and finally adopted by the Swiss Supreme Court. See Vogt and BANZIGER [48], et passim and 4A.74/2012.

31 Schott [39], page 30; Schwenzer [40], N 42.19 with references to BGEs; Watter [49], Article 718a, N 12 with references to BGEs; FORSTMOSER [19], page 16 with various refer­ences.

32 BGE 39 II 561, BGE 95 II 617, BGE 106 Ib 148, BGE 112II 503, BGE 126 III 361, BGE 127 III 332, 4C.433/1998; 4C.148/2002.

33 see tab 7 above; Strassle and Crone [44], page 341.

34 Crone [7], page 1, cited after Strassle and Crone [44], page 341 with further reference.

35 Strassle and Crone [44], page 341; see CO 754 in conjunction with CO 717 para 1.

36 Schott [39], page 113 with further references and detailed analysis; Forstmoser [19], page 16 with various references; BGE 106 Ib 145.

37 Stutz and Crone [45], page 104 et seq. with various references.

38 Strassle and Crone [44], page 341.

39 see CO 718a para 2; Strassle and Crone [44], page 340; Vogt [47], Section 7.1.2 et seqq; Watter [49], Article 718a N 2; Stutz and Crone [45], page 104 with further reference; BGE 95 II 442; BGE 116 II 320; BGE 126 III 361. The company’s object may be changed by the general assembly according to CO 623. Whether this can be done retrospectively is disputed and may be voidable; see Watter [49], Article 718a N 2 with further reference and BGE 100 II 384.

40 Strassle and Crone [44], page 342 and 346; Watter [49], Article 718a N 12 with various references; Weber [51], Article 398 N 15 with various references; see also case law: BGE 39 II 566, BGE 89 II 321, BGE 126III 361; BGE 127 III 332 and 4A.127 2013.

41 see in general: Strassle and Crone [44], page 342 et seqq with various references; Stutz and Crone [45], page 104 et seqq. with various references; Schott [39], page 124 et seqq. with further references and detailed analysis.

42 Schott [39], page 173 with various references; Gauch and Schluep [20], N 1440 with various references; see also BGE 89 II 321; BGE 106 Ib 145; BGE 126 III 361 and BGE 127 III 332.

43 Schott [39], page 173.

44 WATTER [49], Article 718a, N 12b; Strassle and CRONE [44] page 347 with various refer­ences; see also BGE 127 III 334 and BGE 128 III129.

45 BGE 127 III 332.

46 BOCKLI [1], § 13, N603.

47 BOckli [1], § 13, N 603; Strassle and Crone [44], page 346 et seqq. with further refer- ences; see also BGE 127 III 332.

48 see tab 27 below; Strassle and Crone [44], page 344 with further references, 347 and 348.

49 see tab 40 below.

50 BOCKLI [1], § 13, N 601 with reference to French law.

51 Schott [39], page 142 et seqq. with various references and detailed analysis; see also BGE 59 II 111.

52 Schwenzer [40], N 42.19 with reference to BGE 59 II 111 and Schott [39], page 152 et seqq.; Strassle and Crone [44], page 343 with reference to Schott [39], page 152 et seqq.

53 Schott [39], page 152-160 with various references and detailed analysis.

54 Schott [39], page 160 with further references; see also Strassle and Crone [44], page 343 with reference to Decision of the Zurich Commercial Court Nr. HG100174-0 and very similar wording.

55 Strassle and Crone [44], page 342; see also BGE 39II561, BGE 93 II461.

56 Strassle and Crone [44], page 342; see also BGE 89II321.

57 Schott [39], page 130.

58 Siegfried [41], page 64, cited after Schott [39], page 128.

59 Schott [39], page 128.

60 Schott [39], page 128 with various references to German law and Siegfried [41], page 63 et seq; see also BGE 89 II 321.

61 Siegfried [41], page 64 cited after Schott [39], page 130 with additional reference.

62 Schott [39], page 130 with various further references.

63 Schott [39], page 130 et seq. with various references

64 Werner [52], page 820 et seqq., cited after Schott [39], page 131 with further references to german law.

65 Strassle and Crone [44], page 344.

66 BGE 39 II 561; see also BOCKLI [1], § 13, N 602 with further references.

67 HONSELL [22], page 60.

68 BGE49II84.

69 HONSELL [22], page 60.

70 Schott [39], page 133 et seqq. with various further references; Strassle and Crone [44], page 344.

71 Schott [39], page 132; see also BGE 39 II 568.

72 a so called ”Fairness Opinion”

73 confirming: Crone [7], page 9, cited after Strassle and Crone [44], page 344 with further references; Strassle and Crone [44], page 347 and 348; Clause 16 of Swiss Code of Best Practice for Corporate Governance; different views: Schott [39], page 141; Honsell [22], page 60.

74 BGE 89II221; BGE 104II198; HONSELL [22], page 61; Schott [39], page 140 with further references.

75 Steininger [42], page 154 et seqq, cited after Strassle and Crone [44], page 343 with further reference.

76 Strassle and Crone [44], page 343.

77 Eugster and Crone [15], page 440, cited after Strassle and Crone [44], page 343 with further references.

78 Strassle and Crone [44], page 344.

79 Strassle and Crone [44], page 344; BGE 126III361.

80 Strassle and Crone [44], page 344; see also Watter [49], Article 718a N 12 with further references, BGE 50II168 and BGE 126III 361.

81 Strassle and Crone [44], page 344; see also Schott [39], page 227 and 234 et seqq.; Bockli [1], § 13, N 607 with further references.

82 Strassle and Crone [44], page 344 with further references; see also BGE 127 III 332 and Lazopoulos [26], page 94, cited after Strassle and Crone [44], page 344.

83 Steininger [42], page 30, cited after Strassle and Crone [44], page 344.

84 see tab 17 et seqq. above Strassle and Crone [44], page 344.

85 Stott [43], page 229.

86 Stott [43], page 229.

87 Stott [43], page 229.

88 Kwan [25] Chapter 26.7.1; Lo and Qu [28], 8.069; Directors [10] N 154; Chiu, Lee, and Harwood [4]; Yung Kee Holdings Ltd Court of Appeal, 6 March 2014.

89 Kwan [25], Chapter 26.7.1.

90 Directors [10] N 151

91 Kwan [25], Chapter 26.7.1.

92 Bray V Ford [1896] AC 44 at 51.

93 Boardman v Phipps [1966] UKHL 2.

94 Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41, 103.

95 LO and Qu [28], 8.069.

96 LO and Qu [28], N 8.069; see Aberdeen rail Co v Blaikie Brothers [1843-60] All ER Rep 249

(HL) and Newgate Stud Co v Penfold [2008] 1BCLC 46 both cited after LO and Qu [28], N 8.069 with further examples.

97 same view LO and Qu [28], N 8.074.

98 same view LO and Qu [28], N 8.074.

99 Vogt and BAnziger [48], et passim.

100 Directors [10], N 156.

101 Directors [10], N 156.

102 LO and Qu [28], N 8.075.

103 Crone and Steininger [8], page 1.

104 see tab 34 above.

105 LO and QU [28], N 8.069.

106 Registry [34], et passim; Registry [35], et passim.

107 LO and QU [28], N 8.076.

108 LO and QU [28], N 8.076.

109 see tab 17 above.

110 see tab 17 above.

111 Lo and Qu [28], N 8.079 with further references; KWAN [25], Chapter 26.7.3.

112 LO and QU [28], N 8.079; KWAN [25], Chapter 26.7.3.

113 Registry [37].

114 LO and QU [28], N 8.082.

115 LO and Qu [28], N 8.082 with further references.

116 see Clause 16 of the Model Articles.

117 Exchanges and Limited [17], Clause 4.3.

118 Chiu, Lee, and Harwood [4], question 28.

119 based on the Swiss solution. See tab 31 above.

120 CLO 537.

121 CLO 538.

122 see tab 38, et seqq. above.

123 Lo and Qu [28], N 8.089; Roman, Griffin, and Lo [38], 536.07; Lo [27], page 7.

124 see tab 9 above.

125 see tab 9 above.

126 Directors [10], N 163; see also CLO 500.

127 Loans ”to director or body corporate controlled by director” according to CLO 500

128 (1) ”quasi-loan etc. to director” according to CLO 501, (2) ”quasi-loan etc. to connected entities” according to CLO 502, (3) ”enter into credit transaction etc. as creditor for director or connected entity” according to CLO 503 or (4) ”make any arrangement to circumvent point 1-4 according to CLO 504; whereas a specified company, according to CLO 491 means ”(a) a public company or (b) a private company or company limited by guarantee that is a subsidiary of a public company”.

129 e.g. small loans, see CLO 505 for more details.

130 CLO 383.

131 see tab 40 above.

132 see tab 31 above.

133 see tab 31 above.

134 see tab 28 above.

135 CLO 545(3).

136 CLO 545(3).

137 see tab 7 above.

Details

Seiten
30
Jahr
2015
ISBN (eBook)
9783668238220
ISBN (Buch)
9783668238237
Dateigröße
506 KB
Sprache
Englisch
Katalognummer
v333734
Institution / Hochschule
The University of Hong Kong
Note
A-
Schlagworte
corporata self-dealing legal comparison hong kong switzerland

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Titel: Corporate Self-Dealing.  A Legal Comparison between Hong Kong and Switzerland