In the context of a zero balancing cash pool arrangement, the Swiss Federal Supreme Court (“Court”) noted that unsecured upstream and cross-stream loans do not meet the arm’s length test and therefore should have been treated as blocked for dividend distribution.
The Court decided that the statutory auditors wrongfully confirmed the legality of the respective amount for dividend distribution. In light of the decision of the Court it is strongly recommended that Swiss groups/subsidiaries of a group with a zero balancing cash pool review before year-end their cash pooling structure.
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