SWITZERLAND Law and Practice Contributed by: Lorenzo Olgiati and Pascal Hubli, Schellenberg Wittmer Ltd
Resolutions of the board may be passed in writing by way of circular resolution or electronically (without signatures), provided that no board member requests oral deliberation.
• acts as a primary contact person for the executive management; • chairs the shareholders’ meeting; and • generally ensures the proper functioning of the board. Even though the law does not explicitly mention the position of the vice-chairperson, it is advisable to appoint one in case the chairperson is unable to per - form his or her duties. Again, the scope of the vice- chairperson’s duties should be defined in the organi - sational regulations. Ordinary Board Members Other board members participate in the collective supervision and strategic direction of the company. Their role includes reviewing and approving matters reserved to the board, exercising oversight over exec - utive management, assessing risk management and internal controls, and contributing independent judg - ment and expertise. All board members are subject to the same fiduciary duties of care and loyalty. Committee Members Particularly in listed or larger companies, certain responsibilities are often delegated to specialised board committees, such as an audit committee, com - pensation committee, governance and sustainability committee or risk committee. Members of such com - mittees prepare recommendations and oversee mat - ters within their remit, while decision-making authority generally remains with the board unless validly del - egated. For listed companies, the members of the compensation committee must be elected annually by the shareholders’ meeting. Secretary In addition, the board may appoint a secretary, who does not have to be a board member. The secretary’s duties are of a mere administrative nature relating to the board’s tasks, such as taking minutes. Lead Independent Director While not legally required, the SCBP recommends the role of a lead independent director, ie, a non-executive board member, particularly to prevent or address any potential conflict of interest situations.
3. Directors and Officers 3.1 Board Structure
Swiss company law generally provides for a one-tier board model. In practice, however, day-to-day man - agement (except for the non-delegable and inaliena - ble competencies of the board, see 2.2 Types of Deci- sions ) is commonly, and typically in listed companies, delegated from the board to an executive manage - ment, thereby leading to a two-tier board structure. Such rightful delegation excludes the directors’ liabil - ity for damages relating to the delegated day-to-day management (but not the core duties) provided that the board applied the necessary care in selecting, instructing and supervising the management. As a particularity and exception, banks and private insurance companies are required by law to estab - lish a two-tier structure with a functional and personal separation of operative management and supervision. 3.2 Board Members Swiss company law generally does not specify the roles of the members of the board of directors in much detail. Subject to certain non-transferable statutory duties of the board as a whole, the allocation of func - tions among board members is typically set out in the company’s articles of association, organisational The chairperson of the board has a central co-ordinat - ing and leadership role. In particular, the chairperson typically: • convenes and chairs board meetings; • ensures that board members receive timely and adequate information; • oversees the preparation of agendas and board materials; • co-ordinates with the executive management, in particular with the CEO; regulations and committee charters. Chairperson and Vice-Chairperson
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