SWITZERLAND Law and Practice Contributed by: Yves Klein and Antonia Mottironi, Monfrini Bitton Klein and Ardenter Law
the debtor. Creditors and other interested parties have a right to consult the bankruptcy file and to use the evidence that it contains. The Swiss Federal Court ruled that in the spe - cific context of insolvency, there is also a public interest in the disclosure of internal information of Swiss banks that may enable Swiss and for - eign insolvency trustees to identify claims, to assess their amounts and to collect all support - ing 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. 2.4 Procedural Orders 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 and without notice, in particular in the case of post-trial enforcement 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 Preven- tion of Defendants Dissipating or Secreting Assets ). In the case of foreign insolvency proceedings, recognition of the foreign insolvency decree (Articles 166ff PILA) will be granted ex parte, without further inter partes hearings. Third par - ties concerned may, however, appeal against the recognition (see 1.7 Prevention 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 proceedings.
Where criminal proceedings are opened against unknown persons, disclosure of assets and evi - dence, 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 juris - diction. Due to the lack of a discovery process under the SCCP, civil proceedings in fraud-relat - ed matters are in most cases preceded or sup - ported by criminal proceedings so as to obtain evidence and secure assets in support of civil claims. Rather than impeding the civil action, the insti - gation of criminal proceedings supplements it, and criminal proceedings do not suspend the civil action. In principle, 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. Before or in parallel to civil proceedings, a per - son aggrieved by fraud may file a criminal com - plaint before the law enforcement authorities. Any individual or legal entity whose rights, as legally protected by the applicable provision of the SPC, have been directly harmed by a crime is deemed to be an aggrieved person and may be admitted as plaintiffs. Persons who are indirectly aggrieved by a crime, such as the shareholders, the directors, the employees, the creditors or the assignees of the direct victim of the crime are not considered to
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