Swiss Civil Procedure Law in a Nutshell (Volume 11 of 12)
This blog series provides litigators and corporate counsel from other jurisdictions with a practical understanding of the mechanics, advantages, and limits of litigation before State Courts in Switzerland.
Enforcement of Money Claims
Money claims are enforced by virtue of the Debt Enforcement and Bankruptcy Law. The creditor may either initiate enforcement by virtue of an ex parte freezing order (attachment) or else by a normal summons to pay.
On 1 January 2019, the revised Section of the Swiss Private International Law Act (PILA) regarding cross-border insolvencies entered into force. The revision became necessary as the previous regulation was criticised in particular for its protectionist elements, which also were a recurring topic in discussions with foreign colleagues and insolvency practitioners. Particularly compared to other European countries, Switzerland had apparent modernisation potential.
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
Cross-border insolvencies are often complicated and time-consuming. In the regulated financial sector, significant efforts have already been made in Switzerland and internationally to streamline these processes and to facilitate cooperation between the relevant authorities across jurisdictions. Forthcoming changes to the Swiss Law on Private International Law (PILA) seek to modernise the general regime applicable in Switzerland to cross-border insolvencies outside of the regulated financial sector. The revised rules are expected to enter into force at some point in 2019.
The attachment of a debtor's assets is a very convenient tool for securing the recovery of an outstanding claim. Besides conventional assets, such as bank accounts or real estate, the creditor may also consider attaching more exotic items owned by the debtor: luxury cars, artworks or, why not, a private jet. We set out below the key requirements and certain practical aspects to consider when seeking the attachment of an aircraft located in Switzerland.
The requirements for attaching an aircraft: two different routes
Insolvency and international cooperation in insolvency matters have undergone major and constant redevelopment, both in the European Union and internationally, as required by the UN Commission on International Trade Law. However, aside from its banking sector, Switzerland has not fully participated in this modernisation process.
In decision 5A_375/2017, which is slated for official publication in the court reporter, the Swiss Supreme Court ruled for the first time that the statute of limitation for a claim evidenced by a certificate of shortfall is governed by the Swiss Debt Enforcement and Bankruptcy Law (DEBA), irrespective of whether foreign or Swiss substantive law is applicable to the original claim (i.e. the claim resulting from two arbitral awards rendered in Singapore) . This may allow the award creditor enforcing an arbitral award in Switzerland to benefit from a much longer limitation period.
The Swiss Debt Enforcement and Bankruptcy Act (DEBA) allows the initiation of debt enforcement proceedings before a court becomes involved. A creditor can request the competent debt enforcement office (normally at the domicile of the debtor) to issue a payment order to the debtor. The office serves that payment order without verifying the existence and enforceability of the purported claim; however, the debtor may declare its objection, within 10 days, to the debt enforcement office.
Swiss Civil Procedure Law in a Nutshell (Volume 9 of 12)
This blog series provides litigators and corporate counsel from other jurisdictions with a practical understanding of the mechanics, advantages, and limits of litigation before State Courts in Switzerland.
No Class Actions
Mit einer Änderung des Schuldbetreibungs- und Konkursgesetzes (SchKG) per 1. Januar 2019 sollen Personen, die grundlos oder missbräuchlich betrieben wurden, besser geschützt werden. Konkret wird ein neues und einfaches Verfahren eingeführt, mit welchem man sich gegen ungerechtfertigte Eintragungen im Betreibungsregister wehren kann. Folgender Beitrag vermittelt einen allgemeinen Überblick über die wichtigsten Rechtsbehelfe, die einem zu Unrecht Betriebenen ab dem 1. Januar 2019 zur Verfügung stehen.
Betreibungsverfahren in der Schweiz