The draft of the end of 2005 for a revision of the Swiss Corporate Act presented proposals regarding the introduction of a liability cap for auditors. Such cap was requested by audit firms and has already been introduced in several European jurisdictions.
This essay points out that the same arguments supporting
limited liability for auditors equally support liability caps for the members of the board of directors: Confronting board members with a liability exceeding their individual risk capacity causes risk adversity and adverse selection within the pool of potential board members. The merits of a liability cap for auditors, directors and management are discussed from a shareholder’s as well as a creditor’s perspective. Based on this discussion the introduction of an individual cap is proposed, defined for instance on a multiple of the audit fee or individual compensation.
Special emphasis is given to the role of the insurances in such revised regime of directors and auditors liability: Notably, it is proposed that with the introduction of a cap the existing practice of D&O-insurance paid for by the company should be abolished. The standards under which the actions of management and auditors are judged should be clear and foreseeable. This paper therefore proposes the formal introduction of the Business Judgement Rule, respectively an «Audit Judgement Rule», into Swiss Corporate Law.