Right of the Supervisory Board to information and inspection

The board of directors has the right to information and inspection regarding company affairs according to Art. 715a OR. Until now, it was unclear in practice whether this claim could also be enforced by law. The federal court has now commented in a leading decision and provided clarity.

As we have mentioned in our posts about the delegation of management by the board of directors, the board of directors is generally responsible for management and is also liable for it. By delegating this task, the board can limit its liability to the extent of the delegated tasks. It is then only liable for careful selection, instruction, and supervision. However, to perform these tasks, the board needs extensive rights to information, which are granted to it by Art. 715a OR. This gives the board and each of its members the right to information and inspection regarding the affairs of the company. In meetings, all members of the board of directors and the persons responsible for management are required to provide information. Outside of meetings, any member may request information from the persons responsible for management about the course of business and, with the authorization of the president, also about individual transactions. Furthermore, any member can request the president to present books and records as far as necessary for the fulfillment of a task.

In the federal court decision BGE 144 III 100, the court decided on a case in this matter. A director of a corporation from the canton of Obwalden demanded access to the books and records of the company, specifically the share register, the register of the economically entitled persons, documents regarding agreements with third parties, and payments to a third party, as well as the minutes of the general meetings and board meetings. However, the access was not granted to the director, which is why he wanted to legally enforce the inspection based on Art. 715a OR. The request was rejected by the Cantonal Court and the Higher Court of Obwalden on the grounds that Art. 715a OR does not contain a legal basis for a lawsuit. The case was then taken to the Federal Court, which assessed the legal issue differently. The interpretation by the Federal Court, whether a lawsuit for the right of inspection should be permissible based on Art. 715a OR, points out the following notable aspects: