SWITZERLAND Law and Practice Contributed by: Aurélie Conrad Hari, Pascal Hachem, Julien Renaud and Arthur M. Urben, Bär & Karrer
meaning of civil law; the creditor simply obtains the right to assert the rights of the estate in court and a preferential right of satisfaction in order to encourage the creditor to act. The creditor therefore acts based on a procedural mandate, in their own name, but also on behalf of the other creditors. Thus, any decision (or transaction) relating to claims is binding not only on the acting creditor and their adversary, but also on the other creditors and the bankruptcy estate. Although the acting creditor also asserts the rights of the other creditors and a decision in this respect binds each individual creditor (who is not necessarily known), it is not strictly speaking a collective action aimed at satisfying individual rights. Finally, under Article 105 of the Federal Act on Merg- ers, Demergers, Transformations and Transfers of Assets and Liabilities (“MergA”), if – at the time of a merger, demerger or transformation – the shares or membership rights are not adequately maintained or if the compensation is inadequate, each shareholder may demand, within two months of publication of the merger, demerger or transformation decision, that the court set an adequate compensation payment. The ruling applies to all the shareholders of the participat- ing company, provided that they have the same legal status as the plaintiff, without these other sharehold- ers having any real possibility of opting out in order to protect themselves against this effect. 2.2 Scope of Areas of Law to Which the Legislation Applies Consumer Protection and Competition Law Article 10 (2) of the UCA allows authorised profes- sional and trade associations, as well as organisations devoted to consumer protection, to seek rulings on unfair or anti-competitive behaviour. Similarly, Article 56 of the TmPA grants associations and organisations the right to pursue actions for declaratory judgment and enforcement regarding the protection of indica- tions of source. Collective Labour Rights and Protection Against Discrimination Article 357b of the SCO allows for collective enforce- ment of individual claims from collective agreements concerning employment contracts – although only declaratory actions are permitted. Under Article 15 (2)
of the Participation Act, employers’ and employees’ associations are entitled to bring an action for a dec- laration that the Participation Act has been infringed. Furthermore, Article 7 (1) of the GEA permits organi- sations aiming to promote gender equality or defend workers’ interests to bring an action in their own name for a finding of discrimination in the workplace. Finally, Article 9 (1) of the DDA provides for a right of appeal and a right of action for certain organisations in cases of discrimination affecting a substantial number of persons with disabilities. Collective Investment Schemes According to Articles 85 and 86 of the CISA, if the open-ended collective investment scheme is unlaw- fully denied asset entitlements or if benefits are with- held from it, the investors wishing to pursue a claim for damages in favour of the open-ended collective investment scheme concerned may request that the court appoint a representative. The representative will have the same procedural rights as the investors. Debt Enforcement and Bankruptcy Article 260 of the DEBA allows a creditor to ask the bankruptcy estate to assign to the creditor the right to enforce the rights of the estate in court and, in exchange, to obtain priority payment from the pro- ceeds of the sale. Although the creditor in question also asserts the rights of the other creditors and a decision in this respect is binding on each creditor, the assignee creditor acts in their own name – based on a procedural mandate – so this is not strictly speaking a collective action to satisfy individual rights. Bond Loans According to Articles 1157 et seq of the SCO, creditors automatically form – by law – a community of credi- tors, which has the capacity to take legal action. Thus, the representative of the community of creditors may assert the rights of the creditors if the representative has received the power to do so from the meeting of creditors, which at the same time excludes the credi- tors from exercising their rights independently. This instrument is similar to a collective action, allowing the collective defence and satisfaction of creditors’ rights in a single procedure by a common representa-
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