Insight: Minority shareholders take their case to the Federal Court: ‘Rights’ were not enough

Judgment 4A_144/2026: No unrestricted right of inspection for minority shareholders

In the first case, a minority shareholder held approximately 9.9 per cent of the shares in an unlisted public limited company based in Zug. In December 2024, he requested, amongst other things, access to the annual accounts and minutes of general meetings from previous years from the board of directors. The company did not respond to his request. The shareholder then applied to the Zug Cantonal Court for a court order to enforce his right of access. He justified his interest in obtaining the information, in particular, on the grounds that he required the documents to exercise his voting and election rights and to determine the actual value of his shareholding. After both the Cantonal Court and the Higher Court of Zug had dismissed his application, the shareholder appealed to the Federal Supreme Court. In the proceedings before the Federal Supreme Court, he also sought access to the annual accounts for 2017 to 2024 and to the minutes of general meetings since 2019.

Legal basis: When does a right of inspection arise?

Article 697 of the Swiss Code of Obligations (OR) grants every shareholder the right to request information from the Board of Directors regarding the company’s affairs at the general meeting. Furthermore, shareholders who together represent at least 5 per cent of the share capital or voting rights may, pursuant to Article 697a(1) of the Swiss Code of Obligations, request access to the company’s books and records. However, there is no unconditional right of access to all business documents. Access must be necessary for the exercise of shareholders’ rights and must not jeopardise any trade secrets or other legitimate interests of the company. If the company refuses or prevents access, the shareholders concerned may, in accordance with Article 697b of the Swiss Code of Obligations (OR), apply for a court order within 30 days.

Considerations of the Federal Supreme Court: Necessity must be proven

The Federal Supreme Court first confirmed its previous case law on the necessity of shareholder information (E. 3.2). According to this, the shareholder generally bears the burden of assertion and proof that the requested information is necessary for the exercise of their rights. In this regard, it is initially sufficient to demonstrate that the information is generally necessary for an average shareholder. In such cases, a natural presumption in favour of the shareholder applies. If, however, the request for information goes beyond this scope, the shareholder must demonstrate their individual interest on the basis of specific circumstances. A mere prima facie case is not sufficient. In the specific case, the lower courts had ruled that the older documents were not necessary. In particular, it had not been sufficiently explained why annual accounts and minutes of general meetings from the years 2017 to 2022 were required for the forthcoming resolutions. Furthermore, in the lower court’s view, an interest in the valuation of the shares did not automatically justify access to all older business documents. It pointed out that, for example, the practitioner’s method regularly takes into account the earnings figures for the last two financial years as well as the net asset value. The shareholder had not provided sufficient grounds as to why older documents were required beyond this. However, no general time limit restricting the right of inspection to two financial years can be inferred from this. The decisive factor remains whether the requested documents are necessary in the specific case for the exercise of shareholders’ rights. The Federal Supreme Court did not object to the lower court’s assessment from the perspective of the prohibition of arbitrariness (E. 6.2).

Failure to provide grounds for refusing access: what are the consequences of the company’s silence?

A further point of contention concerned the failure to respond to the original request for access. Under Article 697a(3) of the Swiss Code of Obligations (OR), the company must provide written grounds for refusing access. The shareholder argued that the company had only put forward its grounds for refusal during the court proceedings. He could not therefore be blamed for failing to rebut these grounds in his original application. The lower courts countered that the shareholder should have sufficiently substantiated the necessity of the requested documents from the outset. The company’s failure to provide a written response did not alter this. The Federal Supreme Court did not, in the final analysis, consider this assessment to be unconstitutional. However, it did not thereby rule in general terms that a breach of the statutory duty to state reasons would have no consequences. The company’s separate duty to provide written grounds for refusing access remains in force.

Right to access general meeting minutes: the correct procedure is crucial

It is also worth noting the distinction between the general right of inspection under Article 697a of the Swiss Code of Obligations (OR) and the right of access to general meeting minutes under Article 702(4) OR. The lower court did not rule out the possibility that, on the basis of Article 702(4) of the Swiss Code of Obligations (OR), a shareholder might have an independent right of access to minutes from the period during which they held shareholding status. However, this right could not automatically be enforced in the summary proceedings chosen. In particular, it was not listed in the relevant catalogue under Article 250(c) of the Swiss Code of Civil Procedure (ZPO). Nor were the conditions for interim measures or legal protection in clear-cut cases met. Consequently, the application also failed on procedural grounds.

Decision of the Federal Supreme Court

The Federal Supreme Court did not admit the ordinary appeal in civil matters. The value in dispute was less than CHF 30,000 and the issues raised were not recognised as questions of law of fundamental importance. The application was therefore treated as a subsidiary constitutional complaint. As there was no sufficiently substantiated violation of constitutional rights, the Federal Supreme Court dismissed it insofar as it had admitted it. The judgement shows that a minority shareholder cannot demand comprehensive access to documents merely on the basis of the size of their shareholding. They must demonstrate why the requested documents are necessary for the exercise of their shareholder rights. Equally important is the choice of the correct legal procedure.

Judgment 4A_115/2026: Capital increase and protection against dilution

In the second case, two minority shareholders held stakes of approximately 8.3 per cent and 8.6 per cent respectively in a Swiss public limited company operating in the field of quantum technology. Various corporate law disputes had already arisen between the parties, including in connection with the removal of members of the board of directors. In November 2025, the board of directors convened an extraordinary general meeting. The agenda included the introduction of new categories of preference shares and two ordinary capital increases. The first capital increase was to result in the issue of 238,940 new preference shares at an issue price of CHF 1 per share. The second provided for the issue of up to 5,332 further preference shares at an issue price of approximately EUR 18,749 per share. The minority shareholders feared a massive dilution of their shareholdings. They initially sought an injunction against the general meeting and, as a contingency, a suspension of the commercial register to prevent the registration of the planned capital measures. The St. Gallen Commercial Court initially ordered a suspension of the commercial register, but lifted this by a decision dated 30 December 2025. The minority shareholders appealed against this to the Federal Supreme Court.

Legal basis: subscription rights and protection against unfair treatment

Pre-emptive rights are a key instrument for protecting existing shareholders in the event of capital increases. Under Article 652b(1) of the Swiss Code of Obligations (OR), every shareholder is, in principle, entitled to a proportion of the newly issued shares corresponding to their existing shareholding. This right is intended to prevent existing shareholders from losing their relative shareholding ratio as a result of the issue of new shares without a corresponding opportunity to participate. Under Article 652b(2) of the Swiss Code of Obligations (CO), subscription rights may only be restricted or waived for good cause. In doing so, no one may be unfairly favoured or disadvantaged. In addition, Article 704(1) of the Swiss Code of Obligations (OR) provides for increased majority requirements for certain resolutions of the general meeting, namely for the restriction or waiver of subscription rights and for capital increases involving certain specific forms of payment.

Considerations of the Federal Supreme Court: a distinction must be made between the resolution and its implementation

Another key point of contention was the question of whether the capital increase resolutions were invalid due to a breach of pre-emptive rights. The minority shareholders argued that the board of directors had denied them the right to exercise their subscription rights during the first capital increase and intended to restrict those rights during the second capital increase. The decisive factor, however, was that the general meeting itself had neither expressly restricted nor revoked the subscription rights in its resolutions. The Federal Supreme Court upheld the lower court’s assessment that a distinction must be drawn between the legal validity of the general meeting resolution and its subsequent implementation by the board of directors (E. 6.3). A possible breach of subscription rights during implementation therefore does not automatically affect the validity of the underlying General Meeting resolution. As the proceedings initiated related to the alleged invalidity of the General Meeting’s resolutions, a possible unlawful implementation by the Board of Directors did not form the subject matter of the dispute. This distinction is crucial in practice: shareholders must carefully consider whether they wish to challenge a general meeting resolution itself or its specific implementation.

High issue price: When does unlawful discrimination arise?

The minority shareholders also objected to the issue price of approximately EUR 18,749 for the new B preference shares. They argued that this was excessive and breached the principle of the prudent exercise of rights. Among other things, they pointed out that a significantly lower issue price had been applied in a previous financing round. However, the lower court did not consider it sufficiently substantiated that the new issue price was unreasonably high. In particular, there was a lack of sufficient information regarding the actual enterprise value at the time of the capital increase. The Federal Supreme Court confirmed that a previous issue price alone is not sufficient to prove the current value of the company or that the price was set unreasonably (E. 7.2.1). The minority shareholders were therefore unable to demonstrate any arbitrary finding of fact or application of the law. The judgement makes it clear that the alleged economic disadvantage resulting from a capital increase cannot simply be asserted in general terms. Rather, concrete evidence and suitable valuation criteria are required.

Commercial Register freeze: protection against consequences that are difficult to reverse

The considerations regarding the commercial register freeze were also of particular significance. The Federal Supreme Court recognised that the entry of amendments to the articles of association and capital increases in the commercial register may, due to their constitutive effect, result in an irreparable legal disadvantage (E. 1.3). This meant that, in principle, an important prerequisite for challenging the decision on interim measures as a separate matter had been met. However, this did not mean that the requested suspension of the commercial register entry was also substantively justified. In order for it to be upheld, the appellants had to continue to satisfy the conditions for interim relief and raise sufficiently substantiated constitutional objections in the Federal Supreme Court proceedings.

Decision of the Federal Supreme Court

The Federal Supreme Court dismissed the appeal in so far as it was admissible. In particular, it was unable to identify any sufficiently substantiated constitutional violations in its assessment of the general meeting resolutions, the subscription rights or the alleged discrimination. However, the Federal Supreme Court did not rule definitively on all possible claims arising from a potential infringement of subscription rights in the implementation of the capital increases.

What can be learnt from both decisions?

A common feature of both judgements is that the Federal Supreme Court was only able to review the substantive issues to a limited extent. In judgment 4A_144/2026, the value in dispute was below the threshold of CHF 30,000. In the absence of a legal issue of fundamental importance, only the subsidiary constitutional complaint remained. The Federal Supreme Court was therefore only permitted to examine violations of constitutional rights. In judgment 4A_115/2026, the appeal was directed against a decision on interim measures. Here too, the review under Article 98 of the Federal Supreme Court Act (BGG) was limited to constitutional violations. The hurdles for a successful appeal are correspondingly high in such proceedings. In particular, it is not sufficient merely to describe the lower court’s legal assessment or evaluation of the evidence as incorrect. Anyone claiming a breach of the prohibition of arbitrariness under Article 9 of the Federal Constitution must, rather, demonstrate in a substantiated manner why the contested decision is manifestly untenable. The mere fact that a different assessment also appears possible or preferable is not sufficient. It is therefore crucial to present legal arguments and evidence fully and carefully before the cantonal courts. In some circumstances, insufficient reasoning cannot be rectified before the Federal Supreme Court.

Recommendations for minority shareholders

The following recommendations arise in particular from both decisions:

1. Provide specific grounds for requests for information and access. Shareholders should specify exactly which documents they require and for the exercise of which shareholder rights these are necessary. In the case of older documents, it is advisable to provide additional justification of their relevance.
2. Choose the correct claim and the appropriate type of proceedings. The general right of inspection, the specific right of access to general meeting minutes and the right to the preservation of subscription rights are subject to different conditions. These must also be taken into account when seeking judicial enforcement.
3. In the case of capital increases, distinguish between the resolution and its implementation. A possible infringement of pre-emption rights during the implementation of a capital increase does not necessarily mean that the relevant General Meeting resolution is invalid. Applications for legal protection must therefore be directed at the specific action being challenged.
4. Provide clear evidence of financial detriment. Anyone contesting the issue prices of new shares as unreasonable should base their argument on specific valuation criteria and the financial circumstances at the relevant point in time.
5. Act promptly and check the procedural requirements. Whether in relation to the right of inspection or planned capital measures, time limits, standing to sue, power of representation and the precise wording of the legal claims can be decisive for the success of proceedings.

These judgements are also relevant for members of the board of directors. They demonstrate the importance of handling requests for information in a transparent manner, preparing capital measures carefully and implementing general meeting resolutions in accordance with the law. The obligation to safeguard shareholders’ rights is not negated by the fact that a shareholder fails to enforce their rights through the courts.

Conclusion: Protection of minority shareholders begins before legal proceedings

The two Federal Supreme Court judgements from the summer of 2026 make it clear that statutory minority rights under Swiss company law do not automatically guarantee successful enforcement through the courts. Whilst judgment 4A_144/2026 emphasises the requirements regarding the necessity of business documents and the importance of choosing the correct type of proceedings, judgment 4A_115/2026 demonstrates how crucial the distinction between general meeting resolutions and their implementation is. The judgements do not fundamentally call into question the statutory protection of minority shareholders. Rather, they demonstrate that careful preparation, precise reasoning and the choice of the correct legal remedy are essential for the effective exercise of shareholders’ rights. Particularly in the context of corporate law disputes, minority shareholders should therefore assess their rights at an early stage and carefully prepare any potential legal action.

Sources

Official and statutory sources

• Federal Supreme Court 4A_144/2026 of 29 June 2026: Shareholders’ right to information and inspection, in particular E. 1–3 and 6.
• Federal Supreme Court 4A_115/2026 of 21 July 2026: interim measures in connection with capital increases, in particular para. 1, 4–7

HÄRTING articles on the thematic context

• New Companies Act: What you should bear in mind for the next AGM
• Current status of the revision of company law