SWISS ATTACHMENT LAW: OVERVIEW AND RECENT DEVELOPMENTS
Attachment or freezing orders are an important element of the Swiss legal system. The existence and granting of such measures enables creditors to safeguard the enforcement of monetary claims against debtors. Attachment orders ensure that debtors may not dispose of (frozen) assets before and as long as legal proceedings are pending and that they comply with monetary obligations according to the verdict resulting from the ordinary proceedings. Attachment orders, thus, ensure that creditors are not deprived of the fruits of their possible legal victory.
The following comments describe some main aspects of the Swiss attachment law system with a special emphasis on attachment requests against debtors that have assets but no domicile in Switzerland.
Attachment law in Switzerland
First of all, it should be noted that Swiss attachment law operates ‘in rem’ and not ‘in personam’. In other words, the attachment order is not directed against the debtor in person, but towards the debtor’s assets which need to be specified in the course of the attachment proceedings.
A creditor may receive an attachment of specified assets of a debtor in case he shows prima facie evidence that: (i) he has a claim against the debtor which is due and unsecured; (ii) there are assets at hand belonging to the debtor; and (iii) one of the statutory grounds for an attachment order is met.
A statutory ground for obtaining an attachment order is met in case the creditor shows prima facie evidence that: (i) the debtor has no permanent domicile; (ii) the debtor is attempting to conceal assets or is planning to leave Switzerland to evade the fulfilment of its obligations; (iii) the debtor is passing through Switzerland or conducts business in Switzerland on markets and trade fairs; (iv) the debtor has no domicile in Switzerland and the claim has a sufficient connection with Switzerland or is based on a recognition of debt by the debtor; (v) the creditor is in possession of a provisional or final certificate of shortfall against the debtor; or (vi) the creditor is in possession of an enforceable judgment against the debtor.
Oct-Dec 2015 issue
Suter Howald Rechtsanwälte