SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
and creditors for any losses or damage arising from any intentional or negligent breach of their duties. Outside of bankruptcy (namely as long as the company is solvent), in addition to the company, the individual shareholders are also entitled to sue for any losses caused to the company. The shareholder’s claim is for performance to the company (Article 756 paragraph 1 SCO). In the event of the bankruptcy of the damaged company, its creditors are also entitled to request that the company be compensated for the loss - es suffered. However, in the first instance, the insolvency office holder may assert the claims of the shareholders and the company’s credi - tors (Article 757 paragraph 1 SCO). Subject to any assignment of claims to creditors (Article 757 paragraph 3 SCO), where the insolvency office holder waives their right to assert such claims, any shareholder or creditor shall be enti - tled to bring them. The proceeds shall first be used to satisfy the claims of the litigant creditors. Any surplus shall be divided among the litigant shareholders in proportion to their equity par - ticipation in the company; the remainder shall be added to the insolvent’s estate (Article 757 paragraph 2 SCO). 4. Overseas Parties in Fraud Claims 4.1 Joining Overseas Parties to Fraud Claims The joining of parties in civil or criminal proceed - ings depends on their legal standing as provided for by Swiss law.
Outside of mutual legal assistance in criminal and civil matters, Swiss courts and authorities do not exercise extraterritorial jurisdiction. In criminal proceedings, as mentioned in 2.5 Criminal Redress , only individuals or legal enti - ties whose rights, as legally protected by the applicable provision of the SPC, have been directly harmed by a crime may be admitted as plaintiffs. In civil proceedings, legal standing is usually giv - en to the person who has a substantive claim. There exist few exceptions, such as the deriva - tive action of the shareholder on behalf of the company provided for at Articles 754ff SCO (see 3.3 Shareholders՚ Claims Against Fraudulent Directors ). Third parties may join civil proceedings by: • principal intervention (Article 73 paragraph 1 SCCP), where the intervenor claims to have a better right in the object of a dispute, to the total or partial exclusion of both parties; • accessory intervention (Article 74 SCCP), where the intervenor shows a credible legal interest in having a pending dispute decided in favour of one of the parties; • third-party notice (Article 78 paragraph 1 SCCP), where a party notifies a third party of the dispute if, in the event of being unsuc - cessful, they might take recourse against or be subject to recourse by a third party; and • third-party action (Article 81 paragraph 1 SCCP), where a party notifies a third party, asserting the rights that they believe they will have against the notified third party in the event that they are unsuccessful in the court that is dealing with the main action.
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