SWITZERLAND Law and Practice Contributed by: Urs Hoffmann-Nowotny, Marcel Jakob and Benno Strub, Schellenberg Wittmer Ltd
ed with the intention of impairing the creditors, and the counterparty to the transaction either noticed or should have noticed this bad intent. For related parties, the law reverses the burden of proof, meaning the related party that benefited must prove that it was unaware of the debtor’s intention to grant the preference and that this intention was not recognisable to a bona fide party. Notably, companies within a group are considered related parties. 8.2 Claims to Set Aside or Annul a Transaction or a Transfer The bankruptcy administration or the liquidator in composition proceedings can bring an action to have a transaction or transfer undertaken by the debtor prior to the insolvency proceedings declared null and void and to recover the assets for the benefit of the estate. However, such claw-back actions cannot be brought during the composition moratorium or if the composition process ends as a result of restructuring (with or without the conclusion of an ordinary compo - sition agreement).
If the creditors decide that the action should not be pursued by the estate itself, one or more individual creditors can request authorisation to pursue the claim on behalf of the bankruptcy estate, enjoying certain privileges regarding the proceeds (Article 260 DEBA). Claw-back actions must be filed within three years from the opening of the bankruptcy proceedings or the confirmation of a composition agreement with the assignment of assets. A claw-back action can be brought against the direct counterparties to a transaction, as well as against third parties that were indirect beneficiaries. If the action succeeds, the debtor must return the relevant assets in exchange for any consideration received (if the debtor is still enriched thereby). A creditor that has repaid a payment received in a voidable transaction regains its original rights.
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