SWITZERLAND Law and Practice Contributed by: Urs Hoffmann-Nowotny, Marcel Jakob and Benno Strub, Schellenberg Wittmer Ltd
to the competent Swiss court from either the foreign insolvency administrator or a creditor. The requirements for the recognition of a foreign bank - ruptcy decree are set out in Article 166 of the PILA: • The foreign decision amounts to a bankruptcy decree that qualifies as an order initiating an authoritative procedure in which the assets of an insolvent debtor are divided equally among all creditors. • The bankruptcy decree to be recognised must have been issued (a) in the debtor’s state of domi - cile or (b) in the state of the debtor’s COMI, pro - vided that the debtor was not domiciled in Switzer - land when the foreign proceedings were opened. • The bankruptcy decree must be enforceable. • The recognition of the foreign bankruptcy decree must not be manifestly incompatible with Swiss public policy. • The debtor must have had the opportunity to express its viewpoint in the proceedings leading to the bankruptcy declaration or it must be shown that the debtor had been summoned accordingly. The petition for recognition must be filed where the debtor’s assets are located in Switzerland. The peti - tioner must provide evidence of the existence and location of these assets. Since 2019, recognition no longer necessarily entails the opening of ancillary bankruptcy proceedings. Ancillary bankruptcy proceedings may be waived under the following conditions: • the foreign bankruptcy administration requests so; • no secured or privileged Swiss creditors have announced any claims following the call to the creditors published after the recognition of the foreign bankruptcy decree; or • the Swiss court is of the view that the claims of ordinary Swiss creditors are adequately considered in the foreign proceedings. If no ancillary bankruptcy proceedings are opened, the foreign bankruptcy administration has the power to transfer assets out of Switzerland and to conduct
legal proceedings there, but cannot exercise acts of public authority or adjudicate claims. Recognition of Foreign Insolvency-Related Judgments (See 2.4 Unsecured Creditors concerning the recog - nition of ordinary judgments prior to the opening of insolvency proceedings.) Since 2019, the recognition of foreign insolvency- related judgments in Switzerland is in principle pos - sible if (1) the foreign insolvency decree has been rec - ognised in Switzerland, (2) such judgments have been rendered or are recognised in the state of origin of the foreign insolvency decree and (3) the defendant was not domiciled in Switzerland. Regarding the qualification of foreign decisions to be recognised in Switzerland as insolvency-related, Arti - cle 174c of the PILA refers to “judgments on avoid - ance claims or otherwise relating to acts prejudicial to creditors, which are closely connected with” the insolvency proceedings. Liability claims against direc - tors and officers (see 7. Duties and Liability of Offic - ers and Directors ) are generally considered as falling under this definition. However, this possibility of recognising insolvency- related judgments in Switzerland only applies to judg - ments against foreign persons. If an insolvency-relat - ed claim is to be enforced against a person domiciled in Switzerland, the substantive proceedings must be conducted in Switzerland. 6.5 Co-Ordination in Cross-Border Cases Since 2019, Switzerland has a legal basis for the co- ordination of Swiss authorities with their foreign coun - terparts. Co-ordination is supposed to include all forms of co-operation mentioned in Articles 25 et seq. of the UNCITRAL Model Law on Cross-Border Insolvency (1997) such as the co-ordination of concurrent pro - ceedings and of the administration and supervision of the debtor’s assets and transactions, and direct communication between the authorities.
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