Re-registering A Deleted Company

The deletion of a company from the commercial register typically marks the definitive end of its legal existence. But what happens if, after deletion, it transpires that the liquidation was not completed or that assets remain? In such cases, the legal institution of re-registration allows for a subsequent correction of this situation. This blog post outlines the legal basis, requirements and practical aspects of re-registering a deleted company.

I. Legal basis and systematic classification

The re-registration of a deleted company is governed by Art. 935 of the Swiss Code of Obligations (CO). Under this provision, an application may be submitted to the court for the re-registration of a deleted legal entity in the commercial register, provided that a legitimate interest can be demonstrated. This wording makes it clear that re-registration does not take place automatically but requires a substantiated application and a subsequent court decision.

II. Requirements for re-registration

According to the case law of the Federal Supreme Court and the statutory provisions, several cumulative requirements must be met for the re-registration of a deleted company.

A. Legitimate Interest

The central prerequisite for re-registration is that the claimant must have a legitimate interest. According to established Federal Supreme Court case law, such an interest exists if the claimant pursues a legally recognized and protectable purpose that cannot be achieved by other reasonable means.

Art. 935 para. 2 CO cites four examples of situations in which such a protectable interest exists. This list is not exhaustive, as is evident from both the wording and the Federal Supreme Court's case law. An interest worthy of protection exists in particular if:

• not all assets of the deleted legal entity were realised or distributed after completion of its liquidation (section 1),
• the deleted legal entity is a party to legal proceedings (section 2),
• re-registration is necessary to correct a public register (section 3), or
• re-registration is necessary to terminate bankruptcy proceedings (section 4).

The Federal Supreme Court has repeatedly emphasised that the concept of a legitimate interest should not be interpreted narrowly, as Art. 2 para. 2 of the Swiss Civil Code (CC) only denies protection to an obvious abuse of rights. Nevertheless, the justification for a legitimate interest must meet certain requirements to prevent re-registration from becoming an arbitrarily applicable legal remedy. According to case law, an interest worthy of protection is absent in particular if it is clear from the outset that the claimant will achieve nothing by re-registering and taking subsequent action against the company, or at least no more than by other reasonable means.

B. Eligibility to apply

Any person with a legitimate interest in the re-registration of a deleted legal entity is eligible to apply for re-registration. This includes creditors, shareholders, former liquidators or other third parties who can demonstrate a legal interest. The right to apply is therefore contingent upon demonstrating a legitimate interest.

The deleted company itself cannot apply for re-registration, as it lacks the necessary legal personality and capacity to act until revived through re-registration. This follows from the principle that legal personality ends with deletion from the commercial register.

C. Credibility

The interest worthy of protection and the corresponding facts justifying re-registration do not have to be proven but must at least be credibly demonstrated. The standard of credibility is lower than full proof but requires more than mere assertions. To establish credibility the court must gain the impression, based on objective evidence, that the fact in question probably exists, even if circumstances could be different.

Making a case credible is sufficient because it is not the responsibility of the registry authorities or the re-registration court to decide, for example, on the existence of a creditor's claim or a claim by the company against third parties. Granting them such power could lead to them refusing to allow relevant proceedings, which would be incompatible with the purpose of re-registration. The final clarification of substantive entitlements is reserved for ordinary civil proceedings. In case of doubt, a company must therefore be re-registered.

With regard to the requirement of unrealised assets as one of the possible reasons for re-registering the company (Art. 935 para. 2(1) CO), it is generally sufficient to assert concrete facts and to substantiate them with supporting documents where possible.

However, it is particularly important whether bankruptcy proceedings were opened against the company prior to its deletion but were completed or discontinued due to a lack of assets. In such cases, it must be examined whether the relevant assets were already known then or were only discovered later.

If the assets qualify as newly discovered and cover the costs of bankruptcy proceedings, the company's re-registration must also be accompanied by the re-opening of bankruptcy proceedings or the implementation of post-bankruptcy proceedings (see sections VI.A and VI.B below).

If the assets are not considered newly discovered or if they are considered new but do not cover the costs of bankruptcy proceedings, the company must be re-registered without re-opening bankruptcy proceedings. This applies even if bankruptcy proceedings were previously discontinued due to lack of assets prior to its deletion, allowing the company's liquidation to be completed in this scenario as well (see also section VI.C. below).

III. Procedure and jurisdiction

The application for re-registration (and, where applicable, the re-opening of bankruptcy proceedings) must be submitted to the competent court which, is typically the court at the deleted company's former registered office.

The re-registration is a single-party procedure, meaning that generally only the applicant is a party to the proceedings.

IV. Decision of the court

When deciding on an application for re-registration (and, if necessary, the re-opening of bankruptcy proceedings), the court examines whether the legal requirements are met. The court has a certain discretion in this regard, although Federal Supreme Court case law favours re-registration in cases of doubt. This aligns with the principle that re-registration serves to correct an incomplete liquidation, benefitting creditors and the proper administration of justice.

The organs of the re-registered company cannot challenge the re-registration in their capacity as organs, as they lack the right of appeal due to the absence of a violation of their rights. Re-registration merely restores the company's legal capacity to complete its liquidation. However, the re-registered company or its organs are entitled to challenge the re-opening of bankruptcy proceedings.

Re-registration generally occurs without any modification of the previous entries, i.e. the new entry must contain the same facts and legal relationships that existed at the time of deletion. The commercial register entry must, however, expressly state that the company has been re-registered upon request.

The organs of the re-registered company are typically the same as at the time of the original deletion, provided they still exist and are capable of acting. If no such organs exist, the court must appoint an administrator or liquidator as part of the re-registration process.

The court may also correct previous entries if changed circumstances have created deficiencies in the legal organisation of the company to be re-registered.

An organisational deficiency may also arise if the company's articles of association no longer comply with current law. For instance, due to legal changes enacted since the deletion. A practical example is the statutory conversion of bearer shares into registered shares on 1 May 2021. However, in a recent ruling, the Federal Supreme Court clarified that the company's articles of association do not need to be adapted to the conversion at the time of re-registration; the adaptation can be made when the articles of association are next amended (Federal Supreme Court ruling 4A_497/2024 of 31 March 2025).

In all other cases of organisational deficiencies, the court must ensure that the company's organisation meets legal requirements before re-registration takes place.

V. Legal consequences of re-registration

The re-registration of a deleted company has far-reaching legal consequences. When the commercial register enters the re-registration, it revives the legal personality of the company. The company is then treated as if it had never been deleted, although the re-registration takes effect ex nunc, i.e. from the date of re-registration.

Re-registration also revives the company's liquidation status. The re-registered entity is a company in liquidation whose purpose is limited to completing the liquidation. It may no longer engage in advertising activities but must instead carry out the remaining liquidation procedures. These include realising any remaining assets, settling any outstanding liabilities and distributing any surplus to the shareholders.

The liquidators of the re-registered company must fulfil all obligations applicable to an ordinary liquidation. However, a new call for claims is not required.

Re-registration also impacts the company's legal standing. The company regains its capacity to be a party to legal proceedings and to sue and be sued and can appear as a party in court. This is particularly relevant if the re-registration's sole purpose is to enable participation in court proceedings, which is considered part of the liquidation process.

VI. Re-registration with or without bankruptcy proceedings

Whether or not re-registration leads to the re-opening of bankruptcy proceedings, or whether post-bankruptcy proceedings are conducted, depends on the circumstances.

The court will re-open bankruptcy proceedings, if newly discovered assets cover the bankruptcy proceedings costs. However, if a schedule of claims already exists, the court will conduct post-bankruptcy proceedings instead (see also sections VI.A and VI.B below).

Re-registration without re-opening bankruptcy proceedings is the only option if the assets were already known during the previous bankruptcy or if they do not cover the proceeding costs (see also section VI.C. below).

A. Re-opening of bankruptcy proceedings

A key practical application for re-registration arises when assets are discovered or claims must be asserted after bankruptcy proceedings have been discontinued due to lack of assets and the company has been dissolved. In such cases, re-registration is necessary to re-open the bankruptcy proceedings and properly liquidate the newly found assets.

However, the requirements for re-registration and for re-opening bankruptcy proceedings must be examined separately.

For a company to be re-registered, it is not necessary that the assets were newly discovered, in contrast, when re-opening bankruptcy proceedings, it must be determined whether the found assets are new or were already known before the bankruptcy proceedings were discontinued due to lack of assets. In this context, the Federal Supreme Court has specified that an asset is only considered known when all essential facts giving rise to a claim are known. To establish the existence of new assets, it is sufficient if there are no indications that an asset was already known during the initial bankruptcy proceedings. However, if the asset was inventoried in the initial bankruptcy proceedings, even if only for information purposes, it may be considered known depending on the circumstances.

If the assets were already known before the proceedings were discontinued, a creditor could, depending on the circumstances, have demanded the continuation of the bankruptcy proceedings and advanced the costs, requested the assignment of the corresponding claims in the bankruptcy proceedings under Art. 260 Federal Act on Debt Enforcement and Bankruptcy (DEBA) or objected to the company's deletion. In such cases, there is no legitimate interest in re-opening the bankruptcy proceedings.

B. Post-bankruptcy

Closely related to re-registering a company to re-open bankruptcy proceedings is the institution of post-bankruptcy.

Post-bankruptcy differs from re-opening of bankruptcy proceedings in that it follows a bankruptcy that has already been concluded with a legally binding schedule of claims. In contrast, re-opening resumes bankruptcy proceedings were discontinued due to a lack of assets and thus concluded without a schedule of claims.

Post-bankruptcy also serves the purpose of realising newly discovered assets after the conclusion of bankruptcy proceedings.

An asset is only considered 'newly discovered' if the majority of creditors entitled to participate in the second creditors' meeting were already aware of it, as only this meeting can validly waive the assertion of claims. In summary bankruptcy proceedings, this requires a majority of the collated creditors.

According to Federal Supreme Court case law, the assets of a bankrupt company can generally be realised after its deletion in the context of post-bankruptcy proceedings without requiring re-registration. However, if the assets consist of claims against third parties that must be enforced in court, re-registration is a prerequisite for the company to have legal capacity in civil proceedings.

C. Liquidation without re-opening bankruptcy proceedings

If the conditions for re-opening bankruptcy proceedings and for a post-bankruptcy procedure are not met because the relevant assets cannot be classified as new or do not cover the costs of the bankruptcy proceedings, an application may be made to re-register the company without simultaneously re-opening the bankruptcy proceedings. This allows for the completion of an unfinished liquidation. Furthermore, post-bankruptcy proceedings are not to be carried out either.

This is because the purpose of re-registering a deleted legal entity is to complete the liquidation. Even a company whose bankruptcy proceedings are discontinued due to a lack of assets remains in liquidation after the decision on discontinuation, and its organs must ensure that the company is liquidated (see, for example, Federal Supreme Court 9С_56/2023 of 15 May 2023 E. 2.3.2.). If not all assets were realised or distributed in the process, there is also in these cases a need for a company to be re-entered in the commercial register without the opening of bankruptcy proceedings, in order to create the basis for initiating the necessary steps to enforce a claim or creditor damage. Art. 935 CO does not provide for anything else either: neither the wording nor the case law on Art. 935 CO or the previously applicable Art. 164 of the previous Commercial Register Regulation indicate that the claim justifying the re-entry of a deleted company must be new.

Furthermore, the requirements for proving a claim or a legitimate interest for re-registration following bankruptcy cannot be stricter than those for a voluntary liquidation.

Consequently, Art. 935 para. 2(4) CO does not imply that re-registration is permissible only to conclude bankruptcy proceedings.

According to Federal Supreme Court case law, the re-registration of the company is not precluded by the argument that the creditor could have previously requested the continuation of the bankruptcy proceedings be carried out at the time and advanced the costs or objected to the deletion. Even in such cases, liquidation must remain possible.

VII. Practical recommendations and conclusions

The application for re-registering a deleted company requires careful planning and execution.

If a company still has assets or requires liquidation measures after its deletion, it should be examined whether re-registration is required. Case law indicates that re-registration is generally subsidiary and should only occur if no other reasonable means can achieve the intended purpose.

The application must substantiate the applicant's legitimate interest and demonstrate the existence of assets or outstanding liquidation proceedings. A blanket assertion that assets still exist is insufficient. Instead, concrete evidence of the existence and value of the assets must be presented.

Once re-registration has taken place, the liquidators are obliged to complete the liquidation in the proper manner. This includes, in particular, the realisation of assets, the repayment of liabilities and the distribution of any surplus to the shareholders.

Particular attention must be paid to the question of whether the assets claimed were already known in the previous bankruptcy proceedings, even if the bankruptcy proceedings were discontinued due to a lack of assets. If they were known, there may be no legitimate interest in re-opening the bankruptcy proceedings because the claimant could have acted earlier. In that case, the only recourse would be to re-register the company, which may not always achieve the desired result.

VIII. Practical example (liability claims)

A creditor may have a legitimate interest in re-registering a company when they wish to assert newly discovered liability claims against the organs of the bankrupt and deleted company.

According to of the Federal Supreme Court case law, the creditor must have the deleted company re-registered to have the company's liability claims assigned to them under Art. 260 DEBA and then assert these claims in their own name. Re-registration enables the creditor to obtain the assignment of the company's claim for damages from the community of creditors.

Regarding the novelty of the asset (see sectionII.C.) the Federal Supreme Court has specified that entering liability claims in the bankruptcy inventory, even if for information purposes only or in an unspecified amount, can be sufficient evidence of their existence (in this context, it should be noted that a bankruptcy inventory is also drawn up when the bankruptcy proceedings are discontinued for lack of assets, as it forms the basis for the discontinuance). This case law is questionable, as such an entry for information purposes is standard practice, i.e. even without any indication of liability claims, but it may mean that it is no longer possible to re-open bankruptcy proceedings.

Simply re-registering the company to continue the liquidation without re-opening the bankruptcy proceedings, is not sufficient for creditors to assert liability claims. Creditors outside the bankruptcy proceedings are not entitled to do so (Art. 756 CO). However, the board of directors or, in the event of a conflict of interest, the liquidator would be authorised to assert these claims on behalf of the company. Even inventoried liability claims could still be enforced in this way. Of course, the question of financing arises (on which, at least at the relevant time, the execution of the bankruptcy proceedings had already failed).

If bankruptcy proceedings were conducted and a legally binding schedule of claims exists, any subsequently discovered liability claims not yet inventoried must be asserted in post-bankruptcy proceedings (Art. 269 DEBA).

If the bankruptcy estate or its creditors based on a first assignment under Art. 260 DEBA wish to actively pursue liability claims through settlement, debt enforcement, or legal/arbitration proceedings, the liquidated legal entity must be re-entered in the commercial register.

If the assignment under Art. 260 DEBA had already occurred before the company was deleted from the commercial register, the deletion does not affect the assignee creditor's active legal standing. In such cases, re-registration is not necessary for creditors to assert the deleted company's claims in their own name.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.