SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
The insolvency office holder and the creditors may open claw-back actions pursuant to Articles 286 to 288 of the Debt Collection and Bankrupt - cy Act (DCBA), in particular in cases of gifts and disposal of assets made without consideration or where the acts were performed with the inten - tion, recognisable by the other party, of preju - dicing its creditors or favouring certain creditors to the detriment of others (deceit pursuant to Article 288 DCBA). Plaintiffs will bring restitution claims in these legal actions. In fraud-related cases, criminal redress will be more efficient in this regard (see 2.5 Criminal Redress ). The forfeiture of assets that have been acquired through the commission of an offence or that are intended to be used in the commis - sion of an offence or as payment therefor shall be ordered, unless the assets are passed on to the person harmed for the purpose of restoring the prior lawful position (Article 70 paragraph 1 SPC). Restitution in favour of the person direct - ly harmed takes precedence over forfeiture in favour of the state. If illicit and licit assets held in a bank account were mingled, restitution is still possible if a connection can be established between the offence and the bank account concerned. If the paper trail is interrupted due to mingling, the assets must be forfeited and a replacement claim ordered, which will eventually be allocated to the plaintiffs up to the amount of their damage. 1.6 Rules of Pre-Action Conduct There are no specific rules of pre-action conduct in relation to fraud claims. General principles of law apply. In particular, the injured party must not allow the damage to increase inappropriately and must do whatever is required in good faith to prevent and reduce the damage (Article 44 SCO).
The legal provisions on the legal profession and the rules of professional conduct also provide that attorneys-at-law have the professional duty to endeavour to settle disputes amicably, in the best interests of their clients. They shall refrain from any behaviour likely to jeopardise the con - fidence placed in them. 1.7 Prevention of Defendants Dissipating or Secreting Assets There are three ways of securing assets: • civil attachment orders; • insolvency freezing orders; and If the claimant has sufficient evidence to dem - onstrate a likelihood of the presence of assets in Switzerland, a civil attachment may be obtained ex parte, in particular in the case of the post- trial enforcement of judgments (including for - eign interim reliefs) and arbitral awards, as well as in the event the defendant is not domiciled in Switzerland and the claim has sufficient ties with Switzerland. The mere presence of assets in Switzerland is not sufficient to meet the require - ment of “sufficient ties” . This requirement will be met if the claimant shows likelihood of the commission of money laundering in Switzerland as this entails liability in torts. Civil attachment orders are in rem orders and only affect the assets held at the moment when the order is notified. The court will not order the disclosure of assets and banking secrecy will apply until the end of the inter partes proceedings. The amount of the banking assets actually attached will be disclosed to the claimant only if the inter partes attachment proceedings are successful. • criminal freezing orders. Civil Attachment Orders One should note that documents and informa - tion obtained abroad via gag and/or without
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