SWITZERLAND Law and Practice Contributed by: Yves Klein, Monfrini Bitton Klein
• To seek to provisionally set aside the objection on the basis of a written acknowledgement of debt. The action is conducted through summary pro - ceedings. The debtor’s defences are that there is no acknowledgement of debt, that the debt is not due or that the debt has been discharged. If the creditor’s application is granted, the debtor may seek a declaratory judgment of release of the debt through ordinary proceedings. • To seek to definitely set aside the objection on the basis of an enforceable judgment, an arbitral award or an official record in the meaning of Article 347 of the CPC or Article 57 of the Lugano Convention (LC). The action is conducted through summary proceedings. The debtor’s defence is that the judg - ment, award or record is not enforceable or that the debt has been discharged. • To seek to definitely set aside the objection by bringing an action on the merits of their claim. The action may be brought in Switzerland or abroad before a court that is deemed to have jurisdiction under Swiss private international law. Continuation of the debt enforcement proceedings If no objection to the order to pay was filed in a timely manner or if it was set aside, the creditor may request the continuation of the debt enforcement proceed - ings, at the latest one year after the service of the order to pay (the period stops running during the set- aside proceedings). The debt enforcement proceedings may continue, depending on the situation, in the following manner: • seizure of the debtor’s assets (Articles 89ff, DEBA); or • bankruptcy if the debtor is subject to bankruptcy under Article 39 of the DEBA. If the claim was secured by pledged assets, a special procedure applies (Articles 152ff, DEBA). Seizure proceedings If the debtor is subject to seizure proceedings, upon receiving the creditor’s request for continuation of the debt enforcement proceedings, the debt enforcement office initiates the proceedings of seizure of the debt - or’s assets (Article 89, DEBA). The debtor is, under the
threat of criminal sanctions, summoned to appear or to be represented before the debt enforcement office (Article 91 (1), DEBA). If the debtor fails to appear or be represented, the debt enforcement office may request the police to force the debtor to attend (Article 91 (2), DEBA). The debtor has an obligation to disclose their assets, including claims against third parties (Article 91 (3), DEBA). The debt enforcement office must be satisfied that the assets disclosed are sufficient to sat - isfy the claims of the creditors, including interests and expenses (Article 97, DEBA). Third parties who hold assets for the debtor are obliged to provide information to the same extent as the debtor under threat of criminal prosecution (Article 91 (4), DEBA). Authorities are also obliged to provide information to the same extent as the debtor (Article 91 (5), DEBA). The debt enforcement office must order interim meas - ures to secure the seized assets, such as securing cash and precious metal (Article 98, DEBA). If a seized asset is a claim against a third party, such party is put on notice that they may only discharge their debt with the debt enforcement office (Article 100, DEBA). If several creditors are enforcing their claims against the debtor at the same time, they participate in the same series if they have filed their request for continuation of enforcement proceedings within 30 days from the execution of the seizure (Article 110, DEBA). Bankruptcy proceedings Bankruptcy proceedings are opened by a bankruptcy order issued by the court of the effective domicile or headquarters of the debtor (Articles 159ff, DEBA). Bankruptcy proceedings are not judiciarised in nature, and are mainly operated by bankruptcy offices, organ - ised by the Swiss cantons in accordance with the pro - visions of the DEBA. Bankruptcy order If the debtor is subject to bankruptcy proceedings, upon receiving the creditor’s request for continua - tion of the debt enforcement proceedings, the debt enforcement office serves on the debtor a bankruptcy warning (Article 160, DEBA). The creditor may file a bankruptcy request with the bankruptcy court 20 days after the service of the bankruptcy warning.
478 CHAMBERS.COM
Powered by FlippingBook