SWITZERLAND Law and Practice Contributed by: Yves Klein, Monfrini Bitton Klein
Debt enforcement proceedings Debt enforcement proceedings are not judiciarised in nature, and are operated by debt enforcement offices, organised by the Swiss cantons in accordance with the provisions of the DEBA. Initiation of debt enforcement proceedings A creditor initiates debt enforcement proceedings by requesting the competent debt enforcement office (usually that of the Swiss domicile or registered head - quarters of the debtor) to issue an order to pay against its purported debtor. The request for debt enforcement proceedings is typically a one-page form, indicating: • the name and address of the creditor and its Swiss legal representative; • the name and address of the debtor; • the amount of the claim (in Swiss francs); • the yearly interest and its starting date; and • the cause of the claim (eg, contract, tort or judg - ment). The debt enforcement office does not verify the merits of the claim, only whether the information above has been provided, and issues the order to pay, which requests the debtor to pay the claim within 20 days on the debt enforcement office’s bank account. The order to pay is served on the debtor by the debt enforce - ment office or by the Swiss postal service. Objection to the order to pay Within ten days from having been served with the order to pay, the debtor may file an objection with the debt enforcement office. The objection must be timely, but does not need to be reasoned. If no objec - tion is filed, the creditor is informed and may, at least 20 days from the service of the order to pay but at the latest within one year from such service, request the continuation of the debt enforcement proceedings (see below). If the creditor filed a timely objection to the order to pay, the creditor must initiate proceedings to set aside the objection. Setting aside of the objection to the order to pay To set aside the objection to the order to pay, the creditor has three choices, depending on the situation:
For example: • a recusal decision (Article 50 (2), CPC); • a decision on accessory intervention (Article 75 (2), CPC); • a decision on third-party action (Article 82 (4), CPC); • a decision admitting or refusing new facts and evidence (Article 229, CPC); and • a decision admitting or refusing the amendment of the statement of claim (Articles 227 and 230, CPC). An order of instruction relates to the preparation and conduct of the proceedings. In so far as they are not binding or res judicata, they are subject to change at any time. Examples include: • the setting of time limits for the submission of pleadings (eg, Article 223 (2), CPC for the state - ment of defence); • the extension of limitation periods set by the court (Article 144 (2), CPC); • the summons to appear (Article 133, CPC); and • the taking of evidence (Article 231, CPC). 2.2 Enforcement of Domestic Judgments The enforcement of money judgments and non-mon - ey judgments follows different procedures. Common features between the enforcement of money judgments and non-money judgments are as follows: • even though Switzerland is a federal state com - posed of 23 cantons and six half cantons with their own judicial organisation, domestic judgments are enforceable in all of Switzerland without a need for domestication; and • a domestic judgment does not need to be final to be enforced. Enforcement of Money Judgments The enforcement of money judgments (and of money claims in general) is governed by the Debt Enforce - ment and Bankruptcy Act (DEBA). A claimant hold - ing an enforceable domestic money judgment may choose to start the enforcement proceedings through debt enforcement proceedings or through attachment proceedings.
477 CHAMBERS.COM
Powered by FlippingBook