SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
2.4 Procedural Orders If the claimant has sufficient evidence to demonstrate a likelihood of the presence of assets in Switzerland, a civil attachment may be obtained ex parte and without notice, in particular in the case of post-trial enforce - ment of judgments and arbitral awards, as well as in case the defendant is not domiciled in Switzerland and the claim has sufficient ties with Switzerland (see 1.7 Prevention of Defendants Dissipating or Secret- ing Assets ). In the case of foreign insolvency proceedings, recog - nition of the foreign insolvency decree (Articles 166ff, PILA) will be granted ex parte, without further inter partes hearings. Third parties concerned may, how - ever, appeal against the recognition (see 1.7 Preven- tion of Defendants Dissipating or Secreting Assets ). Subject to the limits provided for in the SCCP and SPC protecting the administration of justice, there is no duty of full and frank disclosure in ex parte pro - ceedings. Where criminal proceedings are opened against unknown persons, disclosure of assets and evidence, as well as the freezing of assets, may also be ordered by the public prosecutor against third parties, with the compelling order to be bound by secrecy. In principle, access to the file is not granted to the plaintiffs at this stage. 2.5 Criminal Redress As mentioned in 1.1 General Characteristics of Fraud Claims , Switzerland is a civil law jurisdiction. Due to the lack of a discovery process under the SCCP, civil proceedings in fraud-related matters are in most cas - es preceded or supported by criminal proceedings so as to obtain evidence and secure assets in support of civil claims. Rather than impeding the civil action, the instigation of criminal proceedings supplements it, and criminal proceedings do not suspend the civil action. In princi - ple, there is no secret in the investigations in criminal proceedings. The plaintiffs to criminal proceedings have the right to consult the file and to levy copy, with the right to use such in other proceedings of any kind (including arbitration), both in Switzerland and abroad.
• will be used as security for procedural costs, mon - etary penalties, fines or compensation; • will have to be returned to the persons suffering harm; • will have to be forfeited; or • will be used to cover compensation claims made by the state in accordance with Article 71, SPC. As also mentioned in 2.1 Disclosure of Defendants’ Assets , holders of assets of the accused or of third parties have the duty to hand over items and assets that may be seized pursuant to Article 263, paragraph 1, SCPP. Where the assets are held with Swiss banks, the types of documents that may be obtained include banking statements, SWIFT messages, KYC documents, visit reports and compliance reports. In principle, evidence obtained in criminal proceed - ings can be used in any other parallel proceedings, in Switzerland or abroad (see 2.5 Criminal Redress ). Pre-Trial Collection of Evidence in Insolvency Proceedings In insolvency proceedings, the debtor is obliged, under threat of penal law sanctions, to divulge all assets to the bankruptcy office and to hold themselves at the office’s disposal (Article 222, DCBA). The debtor must open premises and cupboards at a bankruptcy offi - cial’s request. If necessary, the official may use police assistance. Third parties who have custody of assets belonging to the debtor or against whom the debtor has claims have the same duty to divulge and deliver up as the debtor. Creditors and other interested par - ties have a right to consult the bankruptcy file and to use the evidence that it contains. The Swiss Federal Court ruled that in the specific con - text of insolvency, there is also a public interest in the disclosure of internal information of Swiss banks that may enable Swiss and foreign insolvency trustees to identify claims, to assess their amounts and to collect all supporting evidence for the purpose of bringing a legal action against the bank itself. In other words, the scope of the duty of banks and any other service provider to inform insolvency trustees is much broader than their contractual duty of accountability.
342 CHAMBERS.COM
Powered by FlippingBook