Bär & Karrer’s Till Spillmann and Luca Jagmetti discuss its practical consequences.
The Swiss Federal Supreme Court ruled in a recent decision that up-stream and cross-stream loans granted by Swiss companies must be entered into on arm’s-length terms. If not at arm’s length, the decision seems to suggest that such loans constitute de facto distributions and may only be granted for an amount not exceeding the lender’s freely distributable reserves. If already granted, it reduces the lender’s ability for future dividend distributions by the amount corresponding to the nominal value of the loan. The court also imposed stringent requirements on satisfying the arm’s length test.
Further, the court raised the question of whether Swiss companies are allowed to participate in zero-balancing cash pools at all.