SWITZERLAND Law and Practice Contributed by: Daniel Haeberli and Simone Gloor, Homburger
Receivables A security over receivables is typically created by way of a general assignment for security purposes ( Global- und Sicherungszession ). The security assignment may cover all existing and future receivables, and the assignee or security agent obtains full title in such receivables as a fiduciary. This arrangement is more favourable for secured creditors in the event of the security provider’s bankruptcy. However, secured credi- tors will face certain limitations regarding future receivables that come into existence only after the security provider is declared bankrupt. These receivables will become part of the bankruptcy estate and will not be available as collateral to the secured creditors. To create a security assignment, it is necessary for the relevant receivables to be assignable under the governing law. However, it is impor- tant to note that the governing agreement or any applicable general terms and conditions may exclude such assignability. A written assignment agreement is required for the perfection of the assignment. Regarding operational debtors, the security assignment typically remains silent – ie, no notification will be served to the third-party debtors unless there is an event of default or in order to safeguard the rights of the secured creditors. Intra-group debtors and insurance companies are usually notified along with per- fection of the security interest. As long as the rel- evant debtor has not been notified, that debtor can still fulfil its payment obligation by discharg- ing its debts directly to the assignor. Intellectual Property Rights Security is commonly granted over existing and significant intellectual property rights, such as patents, trade marks and designs, that are mate- rial to the business of the security provider and/ or the target group. Future intellectual property
rights are not typically used as security. Security over intellectual property rights is usually estab- lished through a pledge, but it is also possible to take security by way of a security transfer ( Sicherungsübereignung ). A written agreement is all that is required to create and perfect a security interest over intel- lectual property rights. Although not necessary to perfect the security interest, registering the security in a relevant public register is recom- mended to enable the security holder to enforce its security interest against a third party who could otherwise rely, in good faith, on the infor- mation registered in the relevant public register. Real Property Security over immovable property can be cre- ated by using either of the following. • A mortgage assignment ( Grundpfandver- schreibung ) can be used to secure any type of debt, whether actual, future or contingent. The creditor of a claim secured by a mort- gage assignment can demand an extract from the land register, but said extract only acts as evidence and does not constitute a negotia- ble security. • A pledge or security transfer of a mortgage certificate ( Schuldbrief ) is the customary form of security with respect to mortgage certificates. An outright transfer has cer- tain advantages in the event of the security provider’s bankruptcy and in multi-party transactions. A mortgage certificate estab- lishes a personal claim against the debtor, secured by a property lien, and constitutes a negotiable security. It can be issued in paper form ( Papier-Schuldbrief ) or registered form ( Register-Schuldbrief ).
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