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Carina Fröhli
Former Member
Title
Dr. iur.
Last Name
Fröhli
First name
Carina
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Item type:Publication, Geschäftsherrenhaftung der Muttergesellschaft für Handlungen von TochtergesellschaftenThis thesis deals with the application of the principal's liability (art. 55 CO) to groups of companies. In particular, it focuses on cross-border situations in which a foreign subsidiary of a Swiss parent company commits an illegal act and the question arises whether the latter has to assume liability for its subsidiary under Swiss tort law. The cross-border situation requires an analysis of both, private international law (PIL) and substantive tort law provisions. Although focusing on the Swiss liability regime, an in-depth interpretation of art. 55 CO requires a comparative law approach. Thus, the corresponding liability regimes in Germany, France and the United Kingdom will be analysed. Already looking ahead, the thesis deals with a possible concretisation of PIL provisions and the principal's liability within the framework of the Corporate Responsibility Initiative (CRI). At first glance, the comparative law study shows that the PIL provisions applicable in Switzerland and the EU in the above-mentioned scenario generally lead to the application of the law of the country in which the damage occurs. This means that foreign law is applicable. On closer scrutiny, however, there is a great deal of uncertainty as to the applicable law. Under certain conditions, the law of the country in which the event giving rise to the damage occurred and therefore Swiss law may also apply. De lege ferenda, the CRI might eliminate these uncertainties since it provides for Swiss law to be applicable in the examined scenario. The comparative law analysis conducted in this thesis shows, in a material respect, that in Germany part of the doctrine and the Bundesgerichtshof are in favour of applying the liability for auxiliary persons to groups of companies. In France, the Loi sur le devoir de vigilance is in force, which includes a non-contractual liability regime for relation commerciale établie. In the United Kingdom, the courts have, in a series of cases, developed conditions for a parent company's liability under the duty of care. Swiss case law has so far advocated for an application of art. 55 CO to groups of companies in an obiter dictum only. The Swiss scholarship is divided on the issue. The thesis concludes that the application of the principal's liability to legal entities as auxiliary persons is possible and appropriate. Thus, a parent company may have to assume liability for acts or omissions of its subsidiary. However, a subsidiary may only qualify as an auxilia-ry person if a liability relevant relationship of control exists between the parent company and its subsidiary.Type:doctoral thesis