The articles of association of corporation Y contained an arbitration clause applicable in the case of a dispute between Y and members of its board of directors or its shareholders. On 5 January 2004, Y entered into insolvency proceedings. In March 2007, a shareholder and creditor of Y, A, filed a liability claim before the commercial court of the canton of Bern requesting that the members of Y's board of directors be ordered to pay CHF 1m. One of the respondent's board members (X) raised a plea of arbitration based on the arbitration clause contained in Y's articles of association.

On 7 July 2009, the commercial court of the canton of Bern decided that the arbitration clause did not include the dispute at hand and that the court had jurisdiction over the matter. Subsequently, X appealed the commercial court's decision to the Swiss Federal Supreme Court.

The Federal Supreme Court dismissed X’s appeal and confirmed the commercial court's holding that the arbitration clause did not apply. It held that, by filing a liability claim against Y's board members, A was not enforcing the rights of Y against its own board members, but was enforcing the rights of Y's creditors. For this reason, a board member could not mount all the defences he could have brought against a claim filed by Y itself. He could only mount the defences he had against Y's creditors.

The Supreme Court held that the plea of arbitration was not a defence X could bring against Y's creditors. It was a defence X could only bring against a claim filed by Y itself. If such a defence could be brought against Y's creditors, there would be a risk that, due to an arbitration clause in the articles of association, the enforcement of liability claims of creditors could be hindered. Since Y's creditors had no influence on the content of the articles of association, they were not bound by the arbitration clause.

Liability claims against members of a board of directors can generally, in both domestic and international cases, be submitted to arbitration. This, however, is only the case where the arbitration clause satisfies the form requirements and where, for example, the shareholders or board members, who may later become a party to the dispute, validly consent to the respective arbitration clause. The consent requirement can be satisfied if a shareholder, when purchasing the company's shares, or a member of the board, when signing the mandate, at least by way of referral to the arbitration clause in the articles of arbitration consent to such arbitration clause (Berger/Kellerhals, Internationale und interne Schiedsgerichtsbarkeit in der Schweiz, Bern 2006, ann. 446 et seq.).

On the contrary, an arbitration clause is neither binding on those shareholders who purchased their shares prior to inclusion of the arbitration clause in the articles of association, nor is it binding on the company's creditors. With respect to the latter, it is established in legal literature that an arbitration clause is, in particular, not binding in the case of an insolvent company, where a creditor files a liability claim against the board members on behalf of all creditors of that company (Böckli, Schweizer Aktienrecht, 4th edition, Zurich 2009, § 16 paras. 149 et seqq.; Forstmoser/Meier-Hayoz/Nobel, Schweizerisches Aktienrecht, Bern 1996, § 36 paras. 118 et seq.; Götz Staehelin/Stebler, Prozessuale Hürden in Verantwortlichkeitsprozessen, in: GesKR 2009, p. 484 et seq.). This case, published in the official Federal Supreme Court Case Reporter, confirms the existing view.