IDENTIFYING ASSETS IN THE JURISDICTION
1.1 Options to Identify Another Party's Asset Position
The identification of the debtor's assets is key in the enforcement of judgments or awards. Under Swiss law, the resources available to a party to identify another party's assets are quite limited, save for the information which is publicly available. Indeed, there is no disclosure order that can be obtained in Switzerland according to which the debtor is obliged to disclose all its assets. Such disclosure will only occur at a late stage of the debt enforcement proceedings according to the Debt Enforcement and Bankruptcy Act (DEBA), meaning that such a debt enforcement or bankruptcy proceeding is first to be initiated. Such recovery proceedings can only occur in Switzerland provided that the debtor is domiciled or seated in Switzerland or has assets located in Switzerland that have triggered an attachment to be ordered here.
With respect to enforcement of a domestic or foreign judgments or awards, the best way to secure such enforcement is the attachment of the debtor's assets, which will ensure the freezing of these assets pending the enforcement proceedings - this is generally what a creditor will seek first.
However, an attachment under Swiss law can only be granted provided that the claimant (i) holds a final judgment or award (or an acknowledgment of debt, among other possible requirements which are of less relevance here) and (ii) is in a position to establish, on a prima facie basis, that the debtor holds assets in Switzerland. No fishing request is allowed and absent any evidence demonstrating the existence of such assets, the attachment request is denied. Such attachment is obviously generally requested prior to initiating any enforcement measure and this is why it is recommended for the creditor to first identify the debtor's assets, if possible, prior to starting any enforcement measures.
For such identification, it is to be noted that, although quite limited, there are several publicly available resources that could potentially provide information on a person's assets. Typically, each Canton operates a land registry, which holds records of the rights associated with each plot of land located in Switzerland. Part of these records are available to the public, including the identity of the owner(s) of a plot and building thereon. The land registry, however, only provides for information in connection with a specific plot and does not allow for direct identification of the properties held by a person, which limits the usefulness of such records.
Beside, some Cantons grant partial access to tax returns, provided that the requesting party can demonstrate a legitimate interest. This is the case in the Canton of Vaud, for example.
Absent any information, a creditor may aim at investigating the patrimonial situation of the debtor. By doing so, the creditor must ensure that only lawful methods will be used to identify any possible assets; any evidence obtained illegally shall be considered by a judge only if there is a strict necessity for finding the truth, which is applied restrictively by the courts.
2.1 Types of Domestic Judgments
There are essentially two types of domestic judgments in the Swiss legal framework - final judgments and interim judgments. Distinction can also be drawn between monetary and non-monetary judgments, as well as between declaratory and injunctive judgments.
Final judgments are judgments ending the proceedings either by deciding on the merits of the claim (granting or denying it) or by declaring the claim inadmissible.
A Swiss Court may also issue interim judgments, which address only certain aspects of the case that must be decided before a final judgment could be issued. Therefore, interim judgments do not end the proceedings, but merely relate to aspects of the case other than the merits, such as procedural requirements or substantive issues that must be solved beforehand.
2.2 Enforcement of Domestic Judgments
Under Swiss law, the enforcement of domestic judgment is characterised by a dichotomy. One shall distinguish (i) the monetary judgments (ie, judgments relating to the payment of an amount of money or securities) that shall be enforced according to the provisions set out by the DEBA from (ii) the non-monetary judgments that shall be enforced in accordance with the SCPC.
To enforce the judgment ruling on a pecuniary claim, the creditor must process enforcement under the DEBA. Depending on whether the debtor is a company or a private person, the proceedings will then go on through bankruptcy proceedings or follow the path of enforcement by seizure. When such an enforcement proceeding is started further to a final judgment having been rendered, the means of the debtor are quite limited. Indeed, a judgment, which is enforceable, constitutes, among others, a final discharge within the meaning of the DEBA. A final judgment also grants the creditor the possibility to request an attachment (see above, 1.1 Options to Identify Another Party's Asset Position) that will generally be requested prior to starting any recovery proceeding under the DEBA.
The other decisions (ie, non-monetary) are enforced in accordance with Article 335 et seq of the Swiss Civil Procedural Code (SCPC). These provisions neither apply to judgments that modify a legal relationship (Article 87, SCPC) nor declaratory judgments (Article 88, SCPC), but only to decisions requiring the unsuccessful party to adopt a specific behaviour.
To enforce a judgment, the prevailing party must submit a request for enforcement to the court. The question of the enforcement of a decision generally does not arise before the trial judge, who is only entrusted with deciding the substantive issues. It is only in exceptional cases that a decision may directly be enforced and the trial judge would immediately order enforcement measures (see below, 2.3 Costs and Time Taken to Enforce Domestic Judgments). The enforcement proceedings occur on an adversarial basis and the defendant will be given the opportunity to raise its views.
For enforcement to start, a judgment must be enforceable. According to Article 336 SCPC, a domestic decision is enforceable if it is legally binding and the court has not suspended its enforcement or if its early enforcement has been authorised notwithstanding any possible appeal.
Therefore, judgments are in principle enforceable, when there is no further possibility to appeal the decision (as a rule, an appeal under Swiss law bears a suspensive effect).
According to Article 343 (1) of the SCPC, a Swiss judge can use different measure to ensure enforcement, such as:
issue a threat of criminal penalty under Article 292, SCC1; impose a disciplinary fine not exceeding CHF5,000; impose a disciplinary fine not exceeding CHF1,000 for each day of non-compliance; order a compulsory measure such...
Enforcement Of Judgments
|Author:||Ms Aurélie Conrad Hari|
|Profession:||Baer & Karrer|
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