Contact Person: Franco Taisch
The Competence Center for Enterprise and Governance Design deals in an interdisciplinary manner with business and legal issues relating to the topic of company management. Although all forms of companies are taken into account, the focus will be placed above all on SMEs with a people-based orientation. In the reporting year, the focus was on teaching in the area of executive education and consulting of companies.
Family-run companies are extraordinarily important in Switzerland, particularly in the SME sector. Out of a total workforce of 3.4 million in Switzerland, 2.3 million work at 311,000 SMEs with up to 250 employees – this equates to 99% of Swiss companies.
- Areas of activity with regard to legal and regulatory framework conditionsle
- Company management in the area of tension company, politics and law
- Structural changes of companies in particular with and through adequate
- Financing of companies
- Corporate governance and management structures and leadership
- Risk management
- Liability prevention and liability of corporate management bodies
Research Projects in detail
“Corporate management and law”
(ongoing project under the supervision of Prof. Dr. F. Taisch).
Companies are active in an environment that is in a constant state of change and there are different inter-relationships between the company and the subjects in their environment (stakeholder groups). For this, it is necessary that ever greater attention is paid to the legal aspects in a company, from the strategy-finding process to day-to-day business.
Dissertations in detail
“The preservation of the share rights of investors in a stock corporation and a limited liability company in the event of capital increases”
(ongoing project, A. Anderhub, MLaw, supervision Prof. Dr. K. Müller).
In the life cycle of a joint stock corporation (AG) or a limited liability company (GmbH), there may be capital increases due to commercial or legal circumstances. This dissertation shows to what extent the share rights of the shareholders are affected and examines the instruments and protection mechanisms that Swiss company law provides shareholders to exercise their rights, including the ongoing amendment of share law.
“Risk management as a duty of the Board of Directors”
(ongoing project, Ch. Grätzer, Attorney, MLaw, supervision Prof. Dr. F. Taisch).
Over the last twenty years, the topic of risk management has become widely known in entrepreneurial practice. In legal literature, this topic has
not yet been comprehensively to date. The subject of the dissertation is to present the obligations of the Board of Directors in connection with risk management as a product of the obligation of senior management pursuant to Art. 716a par. 1 clause 1 of the Swiss Code of Obligations (OR). In the process, risk management is understood in the sense of Enterprise Risk Management (ERM) and thus in a wider sense than the information required in Art. 663b clause 12 of the Swiss Code of Obligations (OR) regarding the implementation of a risk assessment in the Notes to the annual report. Finally, approaches are also shown how legal risks are to be handled and how the law can be used to handle risks.
“Corporate governance of the care facility compared to the other platforms for asset management”
(ongoing project, M. Halter-Garcia, MLaw, supervision Prof. Dr. F. Taisch).
A care facility and a bank differ from one another in diverse ways: The obligation defined in the Swiss Federal Law on Occupational Retirement, Survivors\‘ and Disability Pension Plans (BVG) dominates the care facility and its members who have to invest their pension contributions as a mandatory requirement. In contrast, a bank is a place of voluntary monetary investment despite the regulations imposed by the law (Banking Act (BankG) / Finma Act (FinmaG)). Nevertheless, both institutes are similar in many aspects, such as profit-oriented asset investment, market dependency and higher-level supervision by the state. Due to the additional risks of a pension fund (professional mandatory insurance of age, death and invalidity) it is to be assumed that the governance of a pension fund must correspond at least to the organization, monitoring and internal control of a bank, if not even exceed it. This dissertation deals with the common features and differences between the corporate governance of a care facility and other platforms for asset management and tries to highlight potential for improvement and sources of conflict for the pension funds.
“Management of legal and reputation risks as a duty of care of banking groups active in Switzerland, Austria and Liechtenstein”
(ongoing project, M. Halter-Garcia, MLaw, supervision Prof. Dr. F. Taisch).
The ongoing study aims to address a topic that up to now has only been examined on the periphery in legal theory and in banking operations practice to date within the framework of a stand-alone, scientific study. In light of the current and future regulation tendencies (Basel II, Basel III), not only the starting situation is analyzed along the practice in the regional context of Switzerland, Austria and Liechtenstein but also problem fields identified and solution approaches are compared.
“Commercial representation of the voting right and commercial consulting with regard to the voting right within the framework of the Swiss joint stock corporation”
(ongoing project, Kevin M. Hubacher, MLaw, supervision Prof. Dr. K. Müller).
The role of the shareholder has increasingly become a focus of attention among the general public over the last few years. Nowadays, it is expected in particular from institutional investors (for instance the care facilities) that they actively exercise their voting rights at the shareholders‘ meeting. In this context and due to regulatory developments, various shareholder services have developed. This dissertation examines two such shareholder services, commercial representation of voting rights and commercial consulting with regard to the voting right. Regulatory aspects as well as those under stock exchange law are dealt with in addition to questions related to share and contract law. With regard to representation and consulting with regard to voting rights, it can be stated that currently the initiation of regulation measures is demanded prematurely in most cases. This dissertation therefore attaches special importance to the regulatory questions and carries out an in-depth analysis of the reconcilability of representation and consulting with regard to voting rights with the principles of share law.
(ongoing project, S. Schmid, MLaw, supervision Prof. Dr. K. Müller).
Trading stocks, which were developed in the US, are shares that give their holders asset rights that relate only to a part of the company (and not the entire company). This dissertation aims to examine the situation which has still not been clarified in Switzerland with regard to the legal permissibility of „tracking stocks“.
“Coping with a company crisis from a legal perspective”
(ongoing project, M. Perret, MLaw, supervision Prof. Dr. F. Taisch).
Like its commercial environment, the life of a company is defined by highs and lows. If a company is in commercial difficulties, the management is confronted with highly complex issues. Coping with a company crisis works according to business principles that have their limit in the legal and regulatory environment. This legal limitation of the entrepreneurial freedom of action is often perceived in practice as a disruption and hindrance. This paper deals precisely with this „paradigm“. It is to be examined whether law really is just a „hindrance“ or whether this assertion is untenable. The insights are then to be used to assess the legal and regulatory boundary parameters valid in Switzerland with regard to the redevelopment of companies.
“The duty of the Board of Directors to integral risk management in SMEs”
(ongoing project, M. Durrer, MLaw, supervision Prof. Dr. F. Taisch).
The Board of Directors of a smaller or medium-sized company is obligated to develop and manage a risk management system in its company. This dissertation deals with the legal basics for the risk management in Swiss SMEs and shows an implementation-oriented solution approach how the Board of Directors can satisfy the statutory requirements.
Master’s theses in detail
“Current developments in condominiums, with special consideration of the modernization fund”
(completed project, M. Schrader, MLaw, supervision Prof. Dr. F. Taisch).
The Master‘s thesis on the topic „Current developments in condominiums, with special consideration of the modernization fund“ addresses firstly the challenges and risks that are presented to condominium owners and shows conflict-preventing strategies within the community, taking into account current legislation. The formulation of condominium owner rules tailored to the individual requirements of the condominium owners, their modifiability and the development of an effective protection of minorities constitute central elements in this regard to achieve a preventive conflict solution system, whose practical implementation is explained in this paper. Secondly, a special focus is placed on the modernization fund and its need to finance maintenance and modernization measures. Here, in particular the permissible use of funds from the modernization fund, the consequences of a lack of funds and the statutory need for adjustment for the long-term stabilization of the condominium.
“The company Attorney secrecy in Europe in the context of the US pre-trial discovery”
(completed project, T. Enz, MLaw, supervision Prof. Dr. F. Taisch).
This Master‘s thesis deals with the problem that a right to refuse testimony or disclosure for company Attorneys (in-house counsel privilege) does not exist in most European legal systems, compared to the legal system of the United States. This regularly confronts European companies that are also active in the US with major problems as they could be forced in proceedings in the US to surrender sensitive data due to a lack of right to refuse to give testimony or disclosure. In addition to comparing law, this paper also tries to show gaps in the legislation to generate possible ways of avoiding the problem.
“The legal status of the whistle-blower in Swiss private law – de lege late and de lege ferenda”
(completed project, J. Renggli, MLaw, supervision Prof. Dr. F. Taisch).
Based on the added value that a whistle-blower can generate within a company, the current legal situation is more than unsatisfactory. Fear of denunciation is still dominant in Switzerland and is also reflected in the new draft law on whistle-blowing. In it, an attempt has been made to protect the whistle-blower and give him or her support with a reporting system positivitized by the legislation from the Federal Supreme Court. In a worst case scenario, however, a company that is loath to report is given greater protection than a whistle-blower. This paper aims to examine the legal bases of whistle-blowing in order to make suggestions for the future development of the law.
“The anti-corruption clause of the code of conduct”
(completed project, O. Rhyner, MLaw, supervision Prof. Dr. F. Taisch).
Internationally active companies often come into contact with corruption through their global business activities. As corruption is punished in places with huge fines and because it is often also accompanied by an immense loss in reputation, a company should devote a certain degree of attention to this topic, in the interests of sustainable company management. A central anti-corruption measure is the Code of Conduct. This paper deals with the establishment and enforcement of a code of conduct. The paper also tries to analyze typical corruption risks to then provide recommendations to combat the said risks.
“Examination of patent law within the framework of a code of conduct”
(completed project, A. Thi, MLaw, supervision Prof. Dr. F. Taisch.
In light of the increasing density of regulations – at both national and international level – the introduction and maintenance of a Code of Conduct is a possible means to avoid breaches of the law. A code of conduct firstly reflects the values and goals of a company; secondly, in the course of corporate governance and compliance, it contributes to a sensitization and at best minimization of breaches of the law. An essential point that is frequently mentioned in a Code of Conduct is the protection of immaterial goods. The innovation of invention activities is the core of many companies and is therefore protected in the legal system with a large number of laws. Due to the internationalization of economics, the compliance with other national and international rules in this area is essential. In the course of this, Swiss and American patent law are examined in comparison. In addition, the implication of patent law in the Code of Conduct is dealt with.
Company law (Prof. Dr. K. Müller), University of Lucerne
The course conveys the general principles of company law and the rules of partnerships and corporations to the students. Students should acquire the ability to solve practical cases in Swiss company law. Various representative exercises
and/or rulings serve to depict the teaching material and as a basis for discussion per thematic block. Of the company forms, the simple partnership, the collective company, the stock corporation (AG) and the limited liability company (GmbH) are particularly addressed.
Company management and law – Leadership, Governance, Strategy, Financing and Management I and II (Prof. Dr. F. Taisch), University of Lucerne
The two-semester course Company Management and Law provides students with knowledge about companies as such and
their interaction with their statutory and regulatory environment. In the first semester, it is conveyed in a two-part block event what optimum management of the statutory and regulatory aspects of entrepreneurial activity and decision-making include and how the corporate function law is to be implemented as an integrated part of the management process. In the second semester, students are given the opportunity to tackle current questions in small teams on site at companies, with practical application of the methodology conveyed (case studies). Over the last few years, renowned companies such as Siemens, V-Zug, Luzerner Kantonalbank, Novartis and Partners Group participated in this program.
Company Law I and II: Establishment and Development, Redevelopment and Liquidation (Prof. Dr. K. Müller, Ass. Prof. Dr. A. Opel et al.) as well as succession and restructuring, company, matrimonial property, inheritance and tax law (Prof. Dr. K. Müller, Prof. Dr. P. Eitel et al.), University of Lucerne
The course Company Law I (Establishment and Development, Redevelopment and Liquidation) follows the life cycle of a company. The focus is on small and medium-sized companies. Based on uniform initial circumstances, the central questions that arise for a company with regard to the thematic groups „Establishment and choice of legal form“, „Development and expansion“ and „Redevelopment and liquidation“ are explained from the perspective of company, social insurance and tax law. The interaction of the different legal issues is to be depicted in an integrated manner in an area of high practical relevance. The event is based on consulting practice and aims to teach students in particular how to handle and solve interdisciplinary questions. The course Company Law II (Succession and Restructuring) follows the life cycle of a company. The focus is on small and medium-sized companies.
Public company law (Prof. Dr. B. Rütsche et al.), University of Lucerne
Public company law regulates the interface between state and business. The state regulates the markets (e.g. obligation of approval for products, professional licenses) and at the same time creates competition-promoting boundary conditions in internal and external trade (Internal Market law, bilateral trading agreements). However, the state also meets public tasks with the involvement of the private sector (e.g. performance orders to hospitals), purchases goods and services on the market (public procurement), forms state monopolies (e.g. building insurance), sets quotas (e.g. freeze on doctors), regulates prices (e.g. taxis) and decides on the usage of scarce resources by private individuals (e.g. special usage licenses). Knowledge of public business law is mandatory rather than optional for all students who want to work in a competent manner in business law in general later on.
Corporate taxation law (Ass. Prof. Dr. A. Opel), University of Lucerne
The course deals in depth with the taxation of companies (partnerships and corporations) and with the taxation of the investors in a company. The tax consequences during the company‘s entire life cycle, from its establishment and development until it is dissolved, are examined. However, the fiscal handling of company restructurings remains fundamentally factored out.
Case studies within the course Company Management and Law II
Novartis: Extended exclusivity in the amendment of the Medicines Act – effects on Novartis and comparison of law
The boundary conditions of the pharmaceutical industry are re-adjusted with the ordinary amendment of the Medicines Act. At the current time, the two councils are still discussing the correct approaches to promote innovation in the area of paediatric medicine and rare diseases. Firstly, an extension of document protection and secondly the creation of a temporary monopoly (market exclusivity) or a combination of both possibilities are being discussed. However, something will change at any rate. In order to analyze the effects for Novartis, the planned amendments to the Medicines Act will be compared with the regulations of the EU and the respective legislation, congruities and deviations in the legal texts sought and analyzed.
Luzerner Kantonalbank: E-Commerce – Legal bases and risks as well as their effects on the LUKB
As a result of the changed user behavior among bank customers from the traditional counter business to online banking, financial institutes are forced to adapt to this change. However, new developments also harbor risks. This paper deals predominantly with the risks of online banking. In the process, legal bases with regard to e-commerce are examined and discussed. The legal risks are then determined from these in order to define any measures to prevent or reduce the relevant risks in a further step.
Siemens: Economic consequences and legal appraisal de lege lata et ferenda
In Switzerland, nepotism is a widespread manifestation of corruption. The commercial effects on Switzerland are still largely unknown. There is no uniform definition of nepotism. Nepotism can be seen as the exploitation of personal relationships, of reputation, influence and power for the purpose of gaining a personal advantage. Based on this definition, nepotism is seen as part of corruption and sanctions should be imposed accordingly. The current amendments to the law try to prevent nepotism and corruption better. It is examined whether these guidelines are suitable for preventing nepotism and corruption.
Partners Group: Independence of the Board of Directors – Legal bases and their effects on the
The Board of Directors is the central management organ of any company, which is why its members are very important. Numerous questions therefore arise with regard to the ties between the Board of Directors and the company. In the process, special factors also always have to be considered, namely special requirements based on an FINMA license and the differentiation between parent company and subsidiary as these could be subject to different regulations due to different activities. Members of the Board of Directors who are not independent can not only have direct financial consequences for a company, they can also lead to severe indirect consequences (withdrawal of license, damage to reputation). For this reason, this paper deals with the legal bases of the independence of the Board of Directors in order to derive recommendations for the company from them.
V-Zug AG: Contract management – Analysis and suggestions for improvement
As a result of its business activity, the company concludes a large number of diverse contracts in a financial year. In order to achieve an efficient handling of these contracts, it is important that the company has a sophisticated contract management. This needs to be constantly developed further and improved so that it meets the constantly changing conditions. The goal of this paper is to examine the company‘s existing contract management. Possible suggestions for improvement are then derived from this analysis for the company.
Centralschweizerische Kraftwerke AG: Contract management of CKW – A strategic analysis for the legal service of CKW on how this can be ideally integrated into the new contract management process
In the course of modernization processes, a new records management has been introduced step by step over the last few years. Part of this records management is a contract management system that has been implemented as a pilot project in some company departments. This contract system is now to be introduced throughout the company. Up to now, the legal department at CKW was not fully involved in this process. For this reason, a strategy will be developed within the framework of this case study that aims to show what tasks and obligations the legal department of CKW will have within this new management project.
Publications, scientific conferences and conference documents
- Amtshilfe ohne Information der Betroffenen – eine rechtsstaatlich bedenkliche Neuerung („Administrative assistance without informing the parties concerned – a constitutionally questionable innovation“, in: Archiv für Schweizerisches Abgaberecht, p. 185 et seq., Berne 2014/15 (Opel)
- „Gedanken zur Attraktivitätssteigerung der Kommanditgesellschaft nach OR und KAG – Dargestellt anhand der Überführung einer Kapitalgesellschaft in eine Kommanditgesellschaft nach KAG“ („Thoughts on increasing the attractiveness of the limited partnership pursuant to the Swiss Code of Obligations (OR) and the Capital Investment Act (KAG) – presented based on the conversion of a corporation into a limited partnership pursuant to the KAG“, in: Uttinger, Laurence/Rentzsch/Luzi (publ.), Dogmatik und Praxis im Steuerrecht („Dogmatism and practice in fiscal law“), Festschrift for Markus Reich, p. 241 ff., Zurich 2014 (Opel / Behnisch)
- The ICA blueprint – A strategy for the multiplication of the cooperative model? Marburger Colloquium 2013, „Marburger Schriften zur genossenschaftlichen Kooperation“, volume 115, 81-93, Baden-Baden 2014 (Taisch /Jungmeister /D‘Incà-Keller)
- Die Genossenschaft als Nachfolgemodell bei Klein- und Mittelunternehmungen in der Schweiz („The cooperative as a successor model with small and medium-sized companies in Switzerland“, in: Zeitschrift für das gesamte Genossenschaftswesen, volume 64, issue 1/2014, p. 3-18, Stuttgart 2014 (Taisch / Troxler / D‘Incà-Keller)
- Analyse der gesellschaftsrechtlichen Handlungsfelder für Genossenschaftsunternehmen („Analysis of the fields of action under company law for cooperative companies“), final report 2014, Interdisciplinary research project, Lucerne 2014 (Taisch/Jungmeister / Fabrizio/D‘Incà-Keller /Schmid/Jurt/Kostovic/Thi/Ruppel)
- Der Beitrag der genossenschaftlichen DNA als Basis für Wachstum und Differenzierungsstrategien („The contribution of cooperative DNA as the basis for growth and differentiation strategies“), in: Laurinkari/Schediwy/Todev (publisher), Genossenschaftswissenschaft zwischen Theorie und Geschichte („Cooperative science between theory and history“): Festschrift for Prof. Dr. Johann Brazda to mark his 60th birthday, p. 381-414, Bremen 2014 (Taisch/Jungmeister)
- Eigenkapitalersetzende Darlehen, Dogmatische Grundlagen und praktische Konsequenzen („Equity-replacing loans, dogmatic basics and practical consequences“), Habil. Zurich, Berne 2014 (Müller)
Public relations, media, politics and society
- „Tabubruch Nationale Erbschaftssteuer – steuerpolitische und ökonomische Reflexionen“ („Breaking with the taboo national inheritance tax – fiscal policy and economic reflections“), ISIS TAX TALKS, Zurich, 18.11.2014 (Opel)
- Podium discussion on the topic „Can the Swiss family foundation still be saved?“, 3rd Zurich Foundation Law Day, Foundation and Family, conference on 13.6.2014 at the University of Zurich (Opel)
- Der Anleihemarkt als Spiegel der Bedrohungslage („The bond market as a reflection of the threat situation“), in: Neue Zürcher Zeitung, Zurich, special supplement on the First World War, 28.6.2014, p. 6, Zurich and in: Ökonomenstimme, 30.6.2014 (Schaltegger/Schmid)
- Notenstein Talks: Lessons learnt? St. Gallen, August 2014 (F. Taisch)
- Board of Trustees KMUNext (Taisch)
- Member Think Tank KMUNext (Jungmeister)