Alongside the 2023 revision of Swiss company law where foundations were also inevitably affected, precisely from the perspectives of insolvency and disclosure requirements, as of 2024[1] the foundation law has become more simplified in a quest to provide for more flexibility.

The applicable changes, namely in the context of Articles 84 – 86 of the Swiss Civil Code (CC), could be summarised as follows:

• procedure in the event of imminent insolvency and over-indebtedness: board of trustees must immediately notify the supervisory authority – Article 84a
• disclosure of remuneration: annual notification to the supervisory authority by board of trustees of the paid amount, directly or indirectly – Article 84b
• formal complaint mechanism: to be lodged with the supervisory authority against acts and omissions of a foundation’s bodies – Article 84.3
• expansion of founders’ rights: extending the reservation of changes to purpose and organisation of a foundation, which in the case of joint founders the amendment request must be lodged jointly – Article 86a
• simplification of minor changes to a foundation’s deed: if such is objectively justified and does not impair third party rights – Article 86b
• clarification regarding form: amendments to a foundation’s deed in accordance with Articles 85 – 86b to be subject to a prior formal ruling, with no requirement for a public deed – Article 86c

On the other hand, the Swiss Federal Act on Private International Law (PILA) has recently[2] undergone a partial revision from the cross-border succession law perspective with the adoption of amendments on chapter 6 of the Act by the Swiss Parliament in December 2023.

While the date of entry into force of the amendments is yet to be precisely defined, a referendum deadline has been set until 18 April 2024.

The purpose behind the revision is to primarily improve the Act’s alignment with the EU Succession Regulation of 2012, applicable in all the EU Member States as of 2015 – save for Denmark and Ireland.  

With deceased’s last place of residence still serving as the primary connecting criterion, the changes aim at cutting down conflicts of jurisdiction in cases with a cross-border angle, and increasing party autonomy as per choice of applicable law to estate planning.

The changes include:

• possibility to exclude Swiss jurisdiction for Swiss nationals residing abroad;
• choice of foreign jurisdiction for foreign nationals domiciled in Switzerland, save for liquidation of matrimonial property;
• subsidiary jurisdiction of Swiss authorities in case of inaction of a foreign authority;
• right to choose the law of one of the national states to be applied to estate planning both for foreign nationals domiciled in Switzerland and Swiss nationals with dual citizenship – save for the Swiss forced heirship rules which shall continue being applicable to the estate of latter;
• application of lex fori in relation to the executor or administrator’s rights over the estate’s assets and their power of disposal.

From a practical perspective, however, the exclusion of Swiss jurisdiction as well as the choice of a national jurisdiction and applicable law must be explicitly stipulated in the testamentary disposition of a testator or testatrix.

[1] See here https://www.fedlex.admin.ch/eli/oc/2022/452/de.

[2] See here https://www.parlament.ch/centers/eparl/curia/2020/20200034/Schlussabstimmungstext%201%20NS%20D.pdf.