SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
rights, as legally protected by the applicable provision of the SPC, have been directly harmed by a crime may be admitted as plaintiffs. In civil proceedings, legal standing is usually given to the person who has a substantive claim. There exist few exceptions, such as the derivative action of the shareholder on behalf of the company provided for at Articles 754ff, SCO (see 3.3 Shareholders’ Claims Against Fraudulent Directors ). Third parties may join civil proceedings by: • principal intervention (Article 73, paragraph 1, SCCP), where the intervenor claims to have a bet - ter right in the object of a dispute, to the total or partial exclusion of both parties; • accessory intervention (Article 74, SCCP), where the intervenor shows a credible legal interest in having a pending dispute decided in favour of one of the parties; • third-party notice (Article 78, paragraph 1, SCCP), where a party notifies a third party of the dispute if, in the event of being unsuccessful, they might take recourse against or be subject to recourse by a third party; and • third-party action (Article 81, paragraph 1, SCCP), where a party notifies a third party, asserting the rights that they believe they will have against the notified third party in the event that they are unsuc - cessful in the court that is dealing with the main action. 4.2 Service of Proceedings out of the Jurisdiction Courts and authorities’ orders and decisions are served on parties by official channels. Notice by the parties is not considered proper service. Improper ser - vice of documents instituting proceedings will entail the nullity of the proceedings and of the final deci - sion. Therefore, it is not advisable to circumvent the process of service provided for in international trea - ties (notably the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters) and Swiss domestic law as this would eventually jeopardise the chances of recovery in Switzerland.
The Federal Office of Justice (FOJ) publishes an online guide on mutual assistance in civil and criminal mat - ters, with a country index, which is frequently updat - ed. All information on requirements for service in each specific jurisdiction is accessible there. The FOJ guide is published for guidance purposes only. For proper civil service, Article 141, paragraph 1, SCCP provides for alternative service by publication in specific circumstances. Service shall be effected by notice in the official gazette of the canton or in the Swiss Official Gazette of Commerce where: • the whereabouts of the addressee are unknown and cannot be ascertained despite making reason - able enquiries; • service is impossible or would lead to exceptional inconvenience; and • a party with domicile or registered office abroad has not provided a domicile for service in Switzer - land despite being instructed to do so by the court. In this respect, the FOJ guide mentions the foresee - able duration of service in the requested state, from a few months to impossibility of service. Where the FOJ guide mentions that service in a country is impossible, Swiss case law and practice of courts impose a duty of effective attempt of service through official chan - nels, which can take several months. Money judgments are enforced under the DCBA and are executed by local debt collection offices. Non- money judgments are enforced under the SCCP, with assistance from the civil courts. Enforcement follows the domestic procedures appli - cable to money and non-money judgments. If the debtor is domiciled in Switzerland, enforce - ment proceedings will usually be instituted by a sim - ple request to issue an order to pay sent to the local debt collection office. The claim does not need to be documented at this stage. If the debtor opposes to the order to pay, the creditor may file a request to set 5. Enforcement 5.1 Methods of Enforcement
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