The Restructuring Review: Switzerland

Footnotes

1 Daniel Hayek is a partner and Mark Meili is an associate at Prager Dreifuss AG.

2 Press release of the State Secretariat for Economic Affairs (SECO) dated 19 March 2020.

3 Press release of the SECO dated 19 March 2020 containing the economic forecasts by the federal government's Expert Group of spring 2020; press release of the SECO dated 7 April 2020 'The labour market situation in March 2020'.

4 Press release of the Swiss National Bank dated 19 March 2020 containing a monetary policy assessment.

5 Press release of the Federal Statistical Office dated 6 April 2020 containing figures on insolvency proceedings in the year 2019.

6 A number of laws and ordinances other than the DEBL contain additional provisions on insolvency, providing special insolvency regimes for certain types of debtors, namely financial institutions, collective investment schemes or insurance companies.

7 This chapter will only describe insolvency proceedings applicable to companies.

8 Note that estate claims that consist of claims arising out of transactions entered into after the opening of insolvency proceedings as well as the costs of conducting the proceedings are satisfied with priority before any distributions are made to other creditors.

9 Creditors entitled to request the opening of bankruptcy proceedings can also request composition proceedings under the same conditions.

10 Article 297a DEBL.

11 See Article 256 Paragraph 3 DEBL and Article 322 DEBL.

12 Notable examples of composition proceedings with assignment of assets are SAirGroup AG, Swissair Schweizerische Luftverkehr AG, Petroplus Marketing AG and Unifina Holding AG.

13 The composition court will only give approval under certain conditions, namely if the debtor's offer is reasonable compared to its financial capacities and the privileged creditors' claims are fully covered.

14 It should be noted here that covid-19 credits provided for by the Swiss Federal Council as liquidity measures of less than 0.5 million Swiss francs are not to be taken into account as debt for the calculation of over-indebtedness up to 31 March 2022. This exception does not apply to covid-19 credits of more than 0.5 million Swiss francs.

15 Article 219 Paragraph 1 DEBL.

16 Article 208 Paragraph 1 DEBL.

17 Article 297 Paragraph 1 DEBL.

18 Article 725 II CO.

19 Article 716a I CO.

20 Article 725 II CO.

21 Decision of the Swiss Federal Supreme Court of 2 October 1990, BGE 116 II 533.

22 Decision of the Swiss Federal Supreme Court of 9 June 2011, BGer 4A_91/2011 and of 2 September 2010, BGer 4A_277/2010.

23 Article 725 Paragraph 2 SCO.

24 Article 286 DEBL; Schenkungsanfechtung.

25 Article 287 DEBL; Überschuldungsanfechtung.

26 Article 288 DEBL; Absichtsanfechtung.

27 A detailed description of the status of these insolvency proceedings is contained in the Swiss chapter of The Insolvency Review (Edition 5).

28 Swiss law provides for more flexible rules on the recognition of foreign bankruptcy decrees on banks and other financial institutions.

29 The principle of reciprocity was further defined by the Swiss Supreme Court in its decision BGE 141 III 222 of 27 March 2015, stating that reciprocity is deemed to be granted where the foreign country recognises the effects of Swiss insolvency decrees in a similar – and not strictly identical – way to Swiss law. Consequently, the Supreme Court ruled that the Netherlands grant reciprocity to Swiss insolvency decrees.

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