SWITZERLAND Law and Practice Contributed by: Urs Hoffmann-Nowotny, Marcel Jakob and Benno Strub, Schellenberg Wittmer Ltd
( Nachlassgericht ), respectively. Formally, these are different courts, but they are part of the same courts of first instance and often the same judges assume both roles. In general, there will be single judges. Appeals against decisions of the bankruptcy and composition courts may be lodged with the higher cantonal court and subsequently with the Swiss Supreme Court (SSC). 2. Supervisory Authorities A complaint may be lodged against any decision of the bankruptcy administration and the administrator and liquidator in composition proceedings with the supervisory authorities, which are lower or higher can - tonal courts. An appeal can then be made to the SSC. 3. Bankruptcy Office Bankruptcy proceedings are always administered by the bankruptcy office, a state authority. It acts as the legal representative of the bankruptcy estate/debtor, ie, it handles all matters relating to the preservation and liquidation of the bankruptcy estate and repre - sents the bankruptcy estate in court. The head of the bankruptcy office, their deputy, and other officials and employees are subject to the supervision and disci - plinary authority of the cantonal supervisory authority, and the canton is responsible for their actions (state liability). 4. Non-Official Bankruptcy Administration In ordinary bankruptcy proceedings, the creditors decide at the first creditors’ meeting whether they want to retain the bankruptcy office as the bankrupt - cy administration or appoint a so-called non-official bankruptcy administration, ie, a private individual or company. The non-official bankruptcy administration is subject to the same regulations as the bankruptcy office. If bankruptcy is carried out in summary proceedings, the appointment of a non-official bankruptcy admin - istration is not possible. However, the office may appoint private auxiliary persons to assist it. The law does not require any specific qualifications to perform the duties of a non-official bankruptcy admin - istration; ie, creditors are free to choose, eg, lawyers,
notaries, fiduciary companies, etc. Accordingly, there is no regulated professional group of private bank -
ruptcy administrators. 5. Creditors’ Meetings
Creditors’ meetings are mandatory in ordinary bank - ruptcy proceedings but are only called exceptionally in summary bankruptcy proceedings. The law provides for two creditors’ meetings, but additional meetings may also be convened: the first shortly after the open - ing of bankruptcy proceedings, at which the creditors may elect a private bankruptcy administration and a creditors’ committee and pass resolutions on urgent matters, and the second after the publication of the schedule of claims. Regarding composition proceedings, see 4.3 The End of the Restructuring, Rehabilitation and Reorganisa- tion Procedure . 6. Creditors’ Committee In ordinary bankruptcy proceedings, creditors may elect a creditors’ committee. It acts as an auxiliary and supervisory body for the bankruptcy administra - tion. The creditors’ committee generally has the fol - lowing tasks: • monitoring the management of the bankruptcy administration, assessing the issues submitted by the bankruptcy administration and, if neces - sary, objecting to measures and decisions of the bankruptcy administration that are contrary to the interests of the creditors; • authorising the continuation of the bankrupt party’s business operations; • approving invoices, and authorising the conduct of legal proceedings and the conclusion of settle - ments; • approval of the schedule of claims; • ordering interim payments on the dividend to credi - tors; and • convening of additional creditors’ meetings. A creditors’ committee usually consists of three to five members and should have representatives from the various interest groups (employees, financial credi - tors, etc).
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