Abstract

Both the Swiss Responsible Business popular initiative and the parliamentary counter-proposal suggest applying principals’ liability to corporate group relationships for the wrongdoing of their subsidiaries. This is in line with a clear domestic and international trend. Neither draft extends the applicable liability parameters; instead, they simply give them a concrete expression, and even limit the potential scope of tort liability by requiring human rights or environmental law violations. The liability rule anchored is thus in effect rather modest if not timid. Besides giving the defendant the possibility to escape liability by bringing an exculpatory proof – just like art 55 Swiss Code of Obligations (OR), the rule imposes liability on parent companies only for wrong done by subsidiaries they effectively control. Accordingly, relative to international trends, Switzerland has thus opted for a moderate solution. Nonetheless, the Council of States, on 12 March 2019, refused to consider the counter-proposal put forward by the National Council. On 13 June 2019 however, the National Council reacted to this refusal by deciding with an overwhelming majority to maintain its counter-proposal. The Council of States will have to deal with the consequences of this decision later this year. The chances of a parliamentary compromise solution are now higher and that of a popular vote lower.