Vinkulierung an der Bruchstelle zwischen kotierter Gesellschaft und nicht kotierten Aktionären
Journal
SZW (Schweizerische Zeitschrift für Wirtschafts- und Finanzmarktrecht)
Type
journal article
Date Issued
2017
Author(s)
Abstract (De)
This article contains a selective analysis of the current system of share transfer restrictions (Vinkulierung), in particular with regard to the scope of application of the relevant provisions in relation to direct and indirect investments in publicly held companies, that has raised public interest in connection with the «Sika»-case. The authors illustrate the current state of established doctrine and practice in this regard before identifying and discussing the most important open questions. Among other situations lacking clear rules or court precedents, the article discusses legal theories and arguments pro and contra an extension of transfer restrictions to the acquisition of an intermediate company, that is already registered as shareholder with
voting rights. The authors furthermore distinguish the situation, where a transferor, due to grandfathering at the time of the introduction of transfer restrictions or due to an exemption, already commands more voting rights than permitted under a percentage restriction. While the authors find arguments that might in certain situations justify an extension of the scope of application of the transfer restrictions, they raise the question to what degree such expansive interpretations may be acceptable in the light of the need for legal certainty and respect for the rule of law. As a conclusion, the authors suggest a modernization of the share transfer restriction rules in analogy to the rules governing disclosure of significant shareholdings in listed companies and request more leeway for tailored restriction regimes.
voting rights. The authors furthermore distinguish the situation, where a transferor, due to grandfathering at the time of the introduction of transfer restrictions or due to an exemption, already commands more voting rights than permitted under a percentage restriction. While the authors find arguments that might in certain situations justify an extension of the scope of application of the transfer restrictions, they raise the question to what degree such expansive interpretations may be acceptable in the light of the need for legal certainty and respect for the rule of law. As a conclusion, the authors suggest a modernization of the share transfer restriction rules in analogy to the rules governing disclosure of significant shareholdings in listed companies and request more leeway for tailored restriction regimes.
Language
German
Refereed
Yes
Volume
89
Number
5
Start page
618
End page
634
Subject(s)
Division(s)
Eprints ID
266352
File(s)![Thumbnail Image]()
open.access
Name
Gericke, Jentsch - Vinkulierung an der Bruchstelle zwischen kotierter Gesellschaft und nicht kotierten Aktionären.pdf
Size
408.61 KB
Format
Adobe PDF
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