For a foreign decree to be recognisable in Switzerland, it is according to the Swiss International Private Law Act, required that the foreign bankruptcy decree is enforceable in the state where it was issued, and there must not be any grounds for refusing recognition, e.g. a violation of Swiss public policy. Furthermore, the decision must have been issued either in the state where the debtor has its seat or domicile or in the state where the debtor has its centre of main interests.

If bankruptcy proceedings are commenced against a debtor or if a debtor enters into a court-approved composition agreement with an assignment of all of its assets, transactions executed by the debtor during the last five years are subject to scrutiny.

The purpose of claw back claims is to recover assets extracted from or given away by an insolvent debtor for the benefit of its insolvency estate and ultimately its creditors. Transactions may be subject to claw back actions if:

1.1 Are there international treaties and/or cross-border instruments applicable?

The restructuring Q&A provides a comprehensive overview of some of the key points of law and practice of restructuring in Switzerland.

1.1 What formal insolvency proceedings are available in Switzerland? 

On 19 June 2020, following the consultation, the Federal Council adopted the dispatch on the partial revision of the Swiss Federal Banking Act (Bundesgesetz über die Banken und Sparkassen, Bankengesetz). The legislative amendment intends to strengthen customer and depositor protection and promote system stability.

The partial revision focuses on three main areas: (i) the restructuring proceedings for banks, (ii) deposit insurances and (iii) intermediated securities.

On 8 March 2019 the consultation on the partial revision of the banking act was initiated by the Federal Council. The amendments have an impact on bank restructurings, deposit insurance and intermediated securities. The consultation period will close on 14 June 2019.

Insolvency and restructuring measures

With two decisions (No. 1895/2018 and No. 1896/2018), both filed on 25 January 2018, the Court of Cassation reached opposite conclusions in the two different situations

The case

The Constitutional Court (6 December 2017) confirmed that Art. 147, para. 5, of the Italian Bankruptcy Law does not violate the Constitution as long as it is interpreted in a broad sense

The case

With the decision No. 1195 of 18 January 2018, the Court of Cassation ruled on the powers of the extraordinary commissioner to require performance of pending contracts and on the treatment of the relevant claims of the suppliers

The case

The Court of Cassation with a decision of 25 September 2017, No. 22274 confirms that Art. 74 of the Italian Bankruptcy Law provides a special rule, which does not apply to cases to which it is not explicitly extended

The case