SWITZERLAND Law and Practice Contributed by: Yves Klein, Monfrini Bitton Klein
The bankruptcy court may, at the request of the credi - tor, issue interim measures to preserve the debtor’s assets from dissipation (Article 170, DEBA). Such measures may include an inventory of all the debt - or’s assets (Article 162, DEBA). The rules of seizure (Articles 90–92, DEBA) apply (see above). The debtor must ensure that the recorded assets are preserved or replaced by equivalent assets (Article 164, DEBA). The court sets a bankruptcy hearing without delay. The court decides on the bankruptcy without delay, even if the parties have chosen not to appear (Article 171, DEBA). From the moment of the bankruptcy, all assets and claims of the debtor belong to the bank - ruptcy estate (Article 197, DEBA). Assets and claims of the bankruptcy estate The bankruptcy office starts preparing an inventory of the bankruptcy estate’s assets and claims (Article 221, DEBA). The debtor is, under the threat of criminal sanctions, obliged to disclose their assets, including claims against third parties (Article 222, 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 222 (4), DEBA). Authorities are also obliged to provide information to the same extent as the debtor (Article 222 (5), DEBA). At the request of a creditor, the bank - ruptcy office must record potential claims against third parties in the inventory, without assessing the merits of such claims. Ordinary bankruptcy procedure If the rules for ordinary bankruptcy procedure apply, the bankruptcy estate is administered as follows (Arti - cles 221ff, DEBA): • the bankruptcy office publishes a notice of bank - ruptcy in the local official gazette instructing all creditors and debtors to file their claims and debts within one month and inviting creditors to a first creditors’ meeting; • the first creditors’ meeting may appoint a private bankruptcy administration acting instead of the bankruptcy office, as well as a creditors’ commit - tee, which has certain supervisory (and limited decisive) competencies;
• the bankruptcy administration decides which claims to admit; such decisions may be challenged by the debtor, the creditor concerned or other creditors; • creditors who file late claims may participate in the bankruptcy proceedings but are excluded from the interim distributions of assets that precede the fil - ing of their claims; • a second creditors’ meeting is convened to pass resolutions as to all important matters, includ - ing the commencement or continuation of claims against third parties and the method of realisation of the assets belonging to the bankruptcy estate (the actual realisation, however, is reserved to the bankruptcy administrator); • following distribution of the proceeds, the bank - ruptcy administration submits its final report to the bankruptcy court; and • if the court finds that the bankruptcy proceedings have been completely carried out, it declares them closed. Summary bankruptcy procedure A summary liquidation procedure (Article 231, DEBA) may be ordered if the proceeds of the debtor’s assets are unlikely to cover the costs of ordinary proceedings or in non-complex circumstances. In those cases, the bankruptcy office requests the court of first instance to order a summary liquidation procedure. The court authorises the summary procedure unless a creditor requests an ordinary liquidation procedure and pro - vides security for the costs of the liquidation. In the summary liquidation procedure, the bankruptcy estate is administered as follows: • the bankruptcy office publishes a notice of bank - ruptcy in the local official gazette instructing all creditors and debtors to file their claims and debts within one month; • in general there is no call for a creditors’ meeting; • upon the expiry of the deadline to produce claims, the bankruptcy office sells the debtors’ assets; in principle, without conducting an auction; • the inventory of assets and the schedule of claims are, in principle, filed together; and • the assets are distributed to the creditors at the end of the liquidation.
479 CHAMBERS.COM
Powered by FlippingBook