87 / 521
holders, where exit and squeeze-out was not possible. The judge could
have been empowered to rule for a solution other than termination.
For these reasons, Art. 636/3 TCC introduces a constructive provi-
sion that serves to promote the continuity of a company.
Specificities of the Lawsuit for Termination by Just Cause
Parties to the Lawsuit, Competent Jurisdiction
Any shareholder of a limited liability company may file a lawsuit
for its termination by just cause.
While this right is granted as a minority right in joint stock com-
panies, it is remarkable that any limited liability shareholder may file
this termination lawsuit. Nevertheless, bearing in mind the exit and
squeeze out rights granted under the fTCC and preserved under the
TCC, the right to file a lawsuit for termination by just cause must be
assessed together with the exit rights of the shareholder. Therefore, it
is appropriate for this right to be granted to any limited liability com-
pany shareholder.
The lawsuit is filed against the company.
As is the case for the lawsuit for termination of a joint stock com-
pany by just cause, the competent jurisdiction in a lawsuit of this type
is the commercial court of first instance where the headquarters of the
limited liability company is located.
Just Cause
Neither the fTCC nor the TCC clarifies the scope and content of a
just cause while regulating the termination of a company by just cause.
The legislative justification of Art. 636 TCC makes reference to
Art. 531 governing the termination of a joint stock company by just
cause. The legislative justification reaffirms that the code does not
define what a just cause is, that jurisprudence and academic opinions
shall define its scope. The justification provides for certain examples
accepted by Swiss scholars. These include the repeated illegal convo-
cation of the general assembly, constant violation of minority and indi-
vidual rights, especially that of the right to information and inspection,
COMMERCIAL LAW
71