SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
notice disclosure orders, such as NPOs or dis - covery pursuant to Section 1782 of Title 28 of the United States Code, are admitted as evi - dence in Swiss proceedings. Security for damages caused by unjustified attachment may be ordered ex officio or upon In the case of foreign insolvency proceedings, recognition of the foreign insolvency decree (Arti - cles 166ff of the Private International Law Act (PILA)) will be granted ex parte, without further inter partes hearings. Third parties concerned may, however, appeal against the recognition. The publication of the decision of recognition in the federal and cantonal gazettes puts on notice all debtors on Swiss territory of the bankrupt debtor that they can no longer make payments to the latter under penalty of having to pay twice, and that the holders of the assets of the bank- rupt, in any capacity whatsoever, are required to place them immediately at the disposal of the bankruptcy office. Subject to the extraordinary application of the principle of transparency (see 3.2 Claims Against Ultimate Beneficial Own - ers ), assets of third parties cannot be frozen. Banking secrecy does not apply to the assets of the debtor. Advances for costs may be requested to secure the costs of the liquidation proceedings – main - ly court and administrative costs. Security for damages cannot be ordered against the foreign liquidators or creditors, as the duty to manage the assets of the estate relies on the state (or the appointed ancillary insolvency office holder). Criminal Freezing Orders Where criminal proceedings are instituted (see 2.5 Criminal Redress ), broad freezing of assets request of the respondent. Insolvency Freezing Orders
may be ordered by the public prosecutor in order to secure restitution to the plaintiffs, procedural costs, fines and penalties, forfeiture (Article 263 paragraph 1, litterae b-d Swiss Code of Penal Procedure (SCPP)) and replacement claims (Article 71 paragraphs 1-2 SPC). These freezing orders can be drafted in a generic form, without identification of specific Swiss assets. Banking secrecy does not apply. Security for damages cannot be ordered against the plaintiff who requires the issuance of criminal freezing orders. Where ordered under Article 263 paragraph 1, litterae b-d SCPP, the criminal freeze takes prec - edence over any civil order obtained by plaintiffs. Where ordered under Article 71 paragraphs 1-2 SPC, the state has no preferable rights over the assets otherwise seized by the plaintiffs. 2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets Civil Proceedings In civil proceedings, except in matters where the parties have a legal duty of mutual information on common assets, such as heirs or spouses, a claimant has no means to obtain disclosure of the assets of the defendant. Contrary to World Freezing Orders issued ad personam, pre-trial civil attachment of assets are orders in rem on identified Swiss assets and can only be granted if the claimant demonstrates a likelihood that there exist assets in Switzerland. Outside of the assets identified in the attachment order, the defendant cannot be compelled to disclose its Swiss or worldwide assets. Assets held with Swiss banks cannot be disclosed before the end of the inter partes proceedings of attachment.
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