In a landmark decision published on 27 May 2026 (5A_53/2026), the Swiss Federal Supreme Court ruled that shareholders cannot block such court-approved pre-packs. Facing immediate bankruptcy, a Swiss LLC in moratorium received court approval for an urgent sale of its entire business. The minority shareholder tried to block this transaction, arguing that it required shareholder approval, which had not been obtained. The Federal Supreme Court fully rejected his appeal. This follows a 2021 ruling of the Federal Supreme Court (147 III 226) that already barred creditors from challenging such decisions.

Selling all or a material part of the operating business may qualify as a de facto change of corporate purpose or an informal liquidation, which would require shareholder approval based on Swiss corporate law. The Federal Supreme Court has now clarified that once court-supervised restructuring proceedings are initiated, creditor interests override shareholder approval rights regarding court-approved transactions. The power to finally approve a pre-pack transaction rests entirely with the restructuring court upon the administrator's request. Therefore, shareholders also lack standing to appeal the court approval of such transactions during a composition moratorium.

While shareholders lose their veto power, court approval does not shield the board and the administrator from liability: they remain liable according to the standard legal concepts for directors' and administrators' liability. Claims by creditors or shareholders may arise, for example, if directors approve a pre-pack below market value or favor a related party. Finally, as already confirmed in previous decisions, court approvals may be null and void in exceptional cases involving a severe, material procedural or substantive flaw.

This ruling prevents blockages by uncooperative shareholders, ensuring that distressed Swiss businesses can be restructured quickly and with high legal certainty, but the board, administrator and court are not handed a blank check. Due process, proper disclosure, and experienced advisory support remain critical to ensuring the validity of a restructuring court's approval and avoiding liability.

If you have any questions about this topic, your usual Schellenberg Wittmer contact or any of our lawyers in our Restructuring & Insolvency or Mergers & Acquisitions teams will be happy to assist you.