This article explains under which conditions a legal entity may act as an independent proxy. It outlines the legal requirements regarding independence, binding instructions, and liability, and illustrates the practical implementation in general meetings.
Introduction
The independent proxy is a key instrument of Swiss corporate law to ensure the effective exercise of shareholders’ rights. Particularly where shareholders do not attend the general meeting in person, it enables a structured and legally compliant exercise of voting rights.
With the revision of Swiss corporate law, the legislator deliberately expanded the range of eligible holders of this function. In addition to natural persons and partnerships, legal entities may explicitly be appointed as independent proxies (Art. 689b para. 5 CO).
This development goes beyond a purely formal extension. In practice, it raises fundamental questions regarding organisation, liability, and the actual implementation of proxy voting.
Role and Purpose of the Independent Proxy
The independent proxy was introduced to safeguard the unaltered formation of shareholders’ will. Earlier models sometimes resulted in votes without clear instructions being cast effectively in line with the board of directors.
The legislator aimed to eliminate precisely this risk. Accordingly, the function is deliberately strict: the independent proxy has no discretion but must strictly implement the shareholders’ instructions.
In practical terms:
- Votes must be exercised exactly in accordance with instructions
- In the absence of instructions, abstention is mandatory (Art. 689b CO)
This “mechanical” logic is not incidental—it is the core of the entire concept.
Legal Basis: Legal Entity as an Eligible Proxy
Art. 689b para. 5 CO explicitly allows legal entities to act as independent proxies. This detaches the function from a specific individual and opens it to organisational structures.
This enables professional organisation of proxy voting and efficient handling of more complex shareholder structures. However, the choice of a legal entity does not alter the underlying legal requirements.
The legal entity therefore acts not as a simplified alternative, but as a structured bearer of the same obligations.
Requirements for Using a Legal Entity
The statutory requirements remain stringent and must be fully complied with. Key elements include independence, strict adherence to instructions, and organisational reliability.
Independence must be ensured both in fact and in appearance (Art. 689b para. 4 CO). Not only actual neutrality matters, but also how it is perceived by shareholders.
Equally central is the binding nature of instructions. The independent proxy has no discretion. Votes must strictly follow instructions, and abstention is required where no instruction exists.
For legal entities, proper internal organisation is an additional requirement. It must be ensured that the duties can be reliably fulfilled at all times. This includes in particular:
- Clear allocation of responsibilities
- Internal substitution arrangements
- Structured processes for handling voting instructions
Legal doctrine further requires that a responsible natural person be designated within the organisation.
Liability and Attribution
Even when a legal entity acts as independent proxy, the underlying legal logic remains unchanged. Legal entities do not act themselves but through their organs (Art. 55 CC).
This means that operational execution is always carried out by natural persons. They receive, review, and implement the instructions at the general meeting.
At the same time, the legal entity remains the responsible party. It is the contractual counterparty of the shareholders and is liable for the diligent and faithful performance of its duties (Art. 398 CO). Organisational or execution errors are attributed to it.
In practice, this results in a clear structure: the legal entity provides the framework and external representation, while internally a designated individual ensures proper execution.
Practical Implementation with Konsento
An integrated approach such as Konsento demonstrates how this structure can be efficiently implemented in practice. Proxy voting is not treated in isolation but as part of the overall organisation and execution of the general meeting.
Within Konsento, independent proxies can be appointed for all types of general meetings. Shareholders submit their instructions electronically, ensuring early structuring and consolidation of the process.
The independent proxy is provided with a dedicated digital tool tailored to their role, enabling intuitive handling of instructions and full transparency over all submitted votes.
Operational execution is supported in a targeted manner:
- Electronically submitted instructions are automatically pre-recorded
- Written instructions can be added and integrated manually
- All instructions are transparently reviewable
- Voting is conducted in a structured way (e.g. via drag-and-drop), without manual entry of shareholdings
At the same time, the general meeting tool fully reflects all representation relationships, including direct votes and representation by independent, corporate and custodian proxies. Results are available within seconds after each agenda item, enabling legally compliant minutes suitable for notarisation.
A key aspect in this context is that Konsento AG itself may be appointed as independent proxy. At the same time, legal requirements are respected, as an experienced general meeting specialist attends and performs the function operationally.
This approach combines the advantages of a legal entity with the necessary human accountability and the efficiency of intelligent software.
Conclusion
Swiss corporate law explicitly allows legal entities to act as independent proxies (Art. 689b para. 5 CO). This opens new possibilities for the professional and scalable organisation of general meetings.
However, strict compliance with legal requirements remains essential. Independence, strict adherence to instructions, and clear allocation of responsibilities are fundamental.
In practice, the combination of a legal entity with clearly defined human responsibility proves particularly robust. It combines organisational efficiency with legal reliability and aligns perfectly with the structure of the law.
How to implement proxy voting correctly in practice
If you want to organise your general meeting efficiently while ensuring that proxy voting is fully compliant with the law, it is worth taking a closer look at integrated solutions. In a non-binding conversation, you will learn how to seamlessly integrate independent proxies into your processes while achieving maximum transparency and control.