SWITZERLAND Law and Practice Contributed by: Yves Klein, Monfrini Bitton Klein
Attachment proceedings A creditor may request a court to order the attachment of assets located in Switzerland to secure a due claim if any of the following grounds of attachment are met (Article 271 (1), DEBA): • the debtor has no fixed domicile; • the debtor, with the intention of evading their obligations, conceals their assets, flees or makes preparation for their flight; • the debtor is passing through Switzerland or belongs to the category of persons who visit fairs and markets, for claims that, by their nature, must be fulfilled immediately; • the debtor does not live in Switzerland, and none of the other grounds for an attachment order can be invoked, provided the claim has a sufficient connection with Switzerland or is based on an acknowledgement of debt pursuant to Article 82 of the DEBA; • the creditor holds a provisional or definitive loss certificate against the debtor; or • the creditor holds a title for the definitive setting aside of an objection to a payment order against the debtor. In the first two grounds, an attachment may also be requested for a claim that is not yet due. The title for the definitive setting aside of an objection to a payment order may be: • an enforceable domestic judgment or arbitral award; • an enforceable foreign judgment issued in a state party to the LC (see 3.4 Process of Enforcing For- eign Judgments ); • a final foreign judgment in another state (see 3.4 Process of Enforcing Foreign Judgments ); • a foreign arbitral award; and • an official record in the meaning of Article 347 of the CPC or Article 57 of the LC. The creditor needs to show probable cause that the claim exists (and is due, as the case may be), that there is ground for an attachment in the meaning of Article 271 of the DEBA and that an asset of the credi - tor within the jurisdiction of the court exists. If the
debtor is in Switzerland, the competent court to file the attachment request is that of the debt enforce - ment proceedings (usually the domicile or registered headquarters of the debtor). If the debtor is not in Switzerland, the court where at least one asset is located has jurisdiction (once the condition is met, the court also has competence to attach assets in Switzerland outside its jurisdiction). The court issues the attachment order ex parte, on the basis of a writ - ten brief. The creditor is liable to the debtor and to third parties for any damage caused by an unjustified attachment (Article 273 (1), DEBA). The court may order them to provide security, sua sponte, or at the request of the debtor or an interested third party (Article 273 (2), DEBA). If the application for an attachment order is denied, the debtor is not informed. The attachment order is enforced by the competent debt enforcement office(s). The debt enforcement office at the location of the assets is competent to enforce the attachment. It does so by sending the attachment order by fax or registered letter to the person holding the attached assets, requesting them to immediately confirm the execution of the attach - ment and to indicate the attached assets and their estimated value. Due to banking secrecy, however, banks may delay the reporting of the attached assets until the end of the objection term or the end of the objection proceedings. Upon receiving the reports of the persons holding the assets, the debt enforcement office issues an attachment deed that it serves on the creditor (at the address of their Swiss counsel) and on the debtor (at the address of their Swiss counsel, if they have accepted to receive a debt enforcement notice, or at their address in Switzerland or abroad, through mutual assistance proceedings). Any person whose rights are affected by an attach - ment may, within ten days from receipt of the attach - ment deed (persons residing abroad may be granted an extension), file a motivated objection to the attach - ment order with the same court that issued the attach - ment order (Article 278, DEBA). The court rules on the objection through summary proceedings (evidence is
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