The debacle of the Swissair Group has led to a plethora of legal disputes, particularly in the area of the Paulian/revocatory actions. Only recently, the Federal Supreme Court issued an important judgment in the area of group liability (4A-268/2018). While the companies’ business activities are typically conducted through a group structure, its particularities have so far hardly been taken into account in the case law.
In its famous Swisscargo ruling, the Federal Court acknowledged the liability of auditors who agreed to the distribution of a dividend by ignoring the existence of an intra-group loan without collateral from the cash pooling. This decision left many questions unanswered.
Following this ruling, the Federal Court had to decide on the liability of BoD and Group Management, which had granted an unsecured loan from the subsidiary to the parent company. In confirmation of the now established case law, the Federal Supreme Court first points out that the duty of care to which the organs are subject is not incompatible with the willingness to take risks: the judge must exercise restraint if the management decision was made without conflicts of interest and on the basis of sufficient information (principle of the Business Judgment Rule). Above all, however, the court is of the opinion that the cash pooling of the Group set up in this case and thus the continued existence of the SAir Group was also in the interest of the subsidiary, Swissair, because otherwise it would not have been able to continue its operations. This ruled out any breach by the governing bodies of their obligations in this regard.
This development in the case law, which for the first time recognises the interest of a company in belonging to a group, is to be welcomed: The ruling promotes the legal certainty of cash pooling and, more generally, of intra-group financing.
This may be emotionally difficult to understand, but moralism and « Schadenfreude » should not be our points of reference in dealings with failure. And in this respect, the ruling makes an indirect but welcome contribution to the fact that entrepreneurship in Switzerland is not always impeded but rather encouraged.