Terms relating to rights of representation and signing authority in companies
A company is normally represented by the members of its governing body (Exekutivorgan; organe exécutif; organo esecutivo), as registered in the commercial register. In the case of a company limited by shares, for example, this would include the following (recommended English terminology for the translation of Swiss articles of association):
|Membres du conseil d’administration; administrateurs
|Mitglieder des Verwaltungsrates; Verwaltungsräte
|Membri del consiglio d’amministrazione; amministratori
|Members of the Board of Directors; directors (stricto sensu)
|Président*e du conseil d’administration
|Präsident*in des Verwaltungsrates; VR-Präsident*in
|Presidente*ssa del consiglio di amministrazione
|Chair/Chairperson/Chairman/Chairwoman of the Board of Directors
|Vice-chair; deputy chair
|Membre et secrétaire
|Mitglied und Sekretär*in
|Membro e segretario*a
|Member and secretary
If the company’s articles of association or organizational regulations so provide, authority to represent the company may also be delegated to other persons, whose names are then also recorded in the commercial register (recommended English terminology for the translation of Swiss Commercial register extracts):
|comité de direction; direction
|executive board; management board; executive management
|membre du comité de direction
|Mitglied der Geschäftsleitung
|membro della direzione
|member of the executive board; executive manager
|délégué du conseil d’administration; administrateur délégué
|Delegierter des Verwaltungsrates
|delegato; amministratore delegato
|executive director; managing director
|directeur général; CEO
|direttore generale; CEO
|chief executive officer (CEO); general manager
|directeur général adjoint; directeur général délégué
|deputy CEO; deputy general manager
|secrétaire hors conseil
|Sekretär (nicht Mitglied)
|segretario fuori dal consiglio
|secretary, non-board member
The members of the board of directors and the executive management, the so-called “Organpersonen” / “organes” mentioned in CC art. 55 and CO art. 40, are referred to collectively in English as “corporate officers” or “directors and officers”. Thus, the “Organhaftung” / “responsabilité des organes” dealt with in CO art. 754, is normally referred to in English as “directors and officers liability” or, for short, “d&o liability”.
They should not be confused with the “corporate bodies” (organes de la société), i.e. the general shareholders’ meeting, the board of directors and the statutory auditors.
The so-called “de jure officers” (formelle Organe; organes formels) are those whose names are recorded in the commercial register and who are normally authorized to sign on behalf of the company. It is common to speak of them in English as “authorized corporate officers”, who may have individual/sole or joint signing authority. Signing authority confers on the authorized party the power to carry out all legal acts that further the company purpose including the power to enter into contracts to that end.
A non-officer authorized to act on the company’s behalf and registered as such in the commercial register is referred to in French as a fondé de procuration or fondé de pouvoir, in German as Prokurist, and in Italian a procuratore. This notion does not exist in Anglo-Saxon law, so that there is also no standard term for it in English. The term “authorized company signatory” (possibly followed by the French, German or Italian term in parentheses) can nevertheless serve as a close approximation, as it successfully conveys the notion of an employee formally authorized to represent the company without holding the rank of a (formal) officer. The terms “authorized representative” or “authorized agent” are less appropriate, as they can be applied to any authorized representative of the company (e.g., a lawyer or agent who is not a company employee), whose powers are often limited to a specific matter. Similarly, the terms “attorney-in-fact” and “proxy” generally refer to third party representatives not otherwise linked to the company. “Proxy” is used, in particular, for the authorization to represent voting rights at a general shareholders’ meeting (independent proxy = représentant indépendant; unabhängiger Stimmerchtsvertreter; rappresentante indipendente).
The signing authority (individual/sole or joint) conferred on authorized signatories empowers them to perform the same acts as officers and directors, with the exception of buying and selling real property. In some cases, it might therefore be best to speak of “limited signing authority” (which strikes us as preferable to “power of attorney”, which is used more to refer to powers of representation granted to outside parties who are not company employees). The translation “agent signature” suggested by the Swiss Register of Commere (zefix.ch) also does not strike us as ideal. The term tends to be used in English in a specific technical sense (referring to a method of applying electronic signatures), and also suggests that the individual in question is an “agent” that is, a non-company third party.
In French-speaking Switzerland, authorized company signatories append to their signatures the phrase “par procuration” or the abbreviation “p.p.”; in the German-speaking and Italian-speaking cantons, the Latin phrases “per procura”, “per procura autoritate”, or the abbreviation “ppa” are appended to the name of the signatory. In English, it is more advisable to follow the signature by the phrase “on behalf of [company name]”. The Latin phrases “per procurationem” and “per pro”, and the abbreviation “p.p.” are more commonly used in the US and the UK when one person signs on behalf of another individual (e.g., a secretary signing on behalf of the company president), rather than in cases where a person signs on behalf of a company.
Finally, there is the term “Handlungsbevollmächtigter” / “mandataire commercial” (agente di negozio), referring to an employee authorized to represent the company in the performance of the company’s usual legal acts without his or her name being recorded in the commercial register. Here, again, there is no precise English equivalent. We recommend using the term “authorized clerk” (followed, if necessary by the original French, German, or Italian term in parentheses). In the Anglo-Saxon world, “authorized clerk” is a term used primarily (1) on the stock exchange to refer to employees (not independent agents) authorized to make certain transactions on the floor, and (2) in law firms, to refer to employees authorized to sign on behalf of a lawyer for certain transactions. The advantage of adopting this term as a translation for Handlungsbevollmächtigter / mandataire commercial is that it makes clear that the individual in question is a company employee (and not an outside agent) but one who does not have the rank of a formal officer or authorized signatory. The term “commercial agent”, which is the translation most frequently suggested by Swiss authors, should in our opinion be avoided, as the term has a very specific meaning in English, namely, an independent professional intermediary who negotiates and concludes transactions on behalf of various different clients.
In Switzerland, Handlungsbevollmächtigte / mandataires commerciaux normally indicate their status by appending an identifier to their signatures: “in Vertretung” or “i.V.” in German (in French: “par ordre” or “p.o.”; in Italian: “per ordine” or “p.o.”). In English, we recommend simply adding the phrase “authorized clerk” after the signature. This provides a clearer indication of the signatory’s rank than do less specific expressions such as “by proxy”.