Standing Of A Swiss Ancillary Bankruptcy Estate To Contest A Schedule Of Claims
Published date | 24 June 2021 |
Subject Matter | Insolvency/Bankruptcy/Re-structuring, Insolvency/Bankruptcy |
Law Firm | Loyens & Loeff |
Author | Mr Robin Moser, Remo Wagner, Johanna H'dinger and Céline Barth |
A recent decision of the Swiss Federal Supreme Court clarified the question whether a Swiss ancillary bankruptcy estate has standing to contest a schedule of claims of a bankrupt Swiss third-party debtor if the foreign bankruptcy estate filed the respective claims directly and regardless of the recognition of the foreign bankruptcy decree. In essence, the Swiss Federal Supreme Court denied the standing of the ancillary bankruptcy estate as it may in such cases not be considered a creditor of the respective claims. The decision underlines the importance of having a foreign bankruptcy decree recognized before rights are asserted in Switzerland.
Foreign bankruptcy decrees must be recognized
Foreign liquidators must apply for a recognition of a foreign bankruptcy decree in accordance with the principle of territoriality before they can act in Switzerland (cf. our post dated 22 June 2020). The recognition serves as a form of legal assistance in favor of the foreign bankruptcy proceedings. If the foreign bankruptcy decree is recognized, the debtor's assets located in Switzerland are subject to the Swiss bankruptcy law and usually so-called ancillary bankruptcy proceedings (Hilfskonkursverfahren) are opened.
Foreign liquidators may not act in Switzerland
The foreign liquidator is entitled to apply for recognition but, in general, does not have the power to perform acts in Switzerland in relation to debt collection. It is neither entitled to file claims nor to contest a schedule of claims of a bankrupt Swiss third-party debtor. In principle, only the (Swiss) ancillary bankruptcy estate may assert claims and exercise rights. Under certain limited circumstances the court may abstain from opening ancillary bankruptcy proceedings and authorize the foreign liquidator to act directly on Swiss soil. Such an authorization has however not been granted in the case at hand.
In the present case, the foreign liquidator filed claims in the bankruptcy of a third-party debtor both before and after the foreign decree was recognized. The liquidator of the third-party...
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