1. IDENTIFYING ASSETS IN THE JURISDICTION
1.1 Options to Identify Another Party's Asset Position
Switzerland is generally a difficult jurisdiction in which to obtain information about another party's assets due to strict privacy rules and culture.
Publicly available information is limited and does not include judgments.
It should also be mentioned that Article 271 of the Swiss Penal Code (the Swiss "blocking statute"), which protects Swiss sovereignty, severely limits the possibility of obtaining evidence in Switzerland in support of foreign proceedings or by foreign officeholders such as liquidators of a foreign insolvency.
1.1.1 Public Information
Public information is limited to the following two sources:
- the cantonal Registers of Commerce; and
- the cantonal land registers.
Judgments of first instance are generally not public, and only an action based on the Data Protection Act may, in some cases, allow access to a version of the judgment, in which the names of the parties are usually redacted. Judgments of appeal are published with a redaction of the names of the parties (with the exception of a few "famous cases") on the websites of the Federal Court and the cantonal courts (links available on the Federal Court's website).
18.104.22.168 Cantonal Registers of Commerce
All persons or entities established in Switzerland performing a trading, manufacturing or other business activity must be registered with the cantonal Register of Commerce at their headquarters or place of business. Share corporations, limited liability corporations and co-operative corporations only come into existence when they are registered with the Register of Commerce. Branch offices of Swiss and foreign business organisations must also be registered at their place of business.
The cantonal Register of Commerce contains basic information about these persons or entities, such as the date of creation, the type of activity (corporate objective), the persons empowered to represent it, the amount and type of registered capital of share corporations, and the identities and addresses of their directors and managers. All changes must be registered.
All new entries are published in the Swiss Commercial Gazette and the respective cantonal Official Gazettes.
Search by director is not available on the official websites, but is provided through private websites requiring a subscription (such as www.moneyhouse.ch).
It is possible to order a copy by post or email of the documents provided to the Register of Commerce as documentary evidence to obtain a registration or amend it. It should be noted that it is customary to only file excerpts of general meeting of shareholders' or board of directors' minutes, certified by the president of the board of directors. Consequently, the list of shareholders or directors present or represented is usually not filed with the Register of Commerce.
22.214.171.124 Cantonal land registers
Although the legislation applicable to land registers in Switzerland is essentially governed by federal law, there is no central land register for the entire country. Instead, the cantons keep their records in their own land registers. A search engine to identify which land register is competent for a certain locality is available at: www.rnrf.ch/fra/gru.php.
Some land registers allow the search of basic information through their website; others require a contact by email or letter.
A person with evidence of a legitimate interest, such as a claim or a judgment to enforce, may require the competent land register to indicate whether a certain person owns a property within its territory.
1.1.2 Access to Commercial Accounts
Pursuant to Article 957 of the Swiss Code of Obligations (SCO), any person or company who has to register with the Register of Commerce must hold commercial accounts.
The accounting records and the accounting vouchers, together with the annual report and the audit report, must be retained for ten years following the expiry of the financial year (Article 958f(1), SCO).
Corporations that have issued bonds or are listed on a stock market must publish or provide on request their annual accounts and consolidated accounts together with the audit reports (Article 958e(1), SCO).
For other undertakings, creditors with a legitimate interest may ask to inspect the annual report and the audit reports (Article 958e(2), SCO).
2. DOMESTIC JUDGMENTS
2.1 Types of Domestic Judgments
Swiss law identifies different categories of judgments.
2.1.1 Final, Interlocutory and Partial Judgments
The judgment is final when it puts an end to the proceedings, whether by a decision on the merits (on substantive law grounds) or by a decision of dismissal (on procedural grounds).
The judgment is interlocutory when the court of appeal could take a contrary decision that would put an end to the proceedings and would allow an appreciable saving of time or costs. The interlocutory judgment settles, without ending the proceedings, either a substantive preliminary question or a procedural question (see pretrial issues).
The judgment is partial when the court rules on part of the case on the merits without ending the proceedings.
2.1.2 Judgment on the Merits and Procedural Judgment
A judgment on the merits of the case decides either on the claim (admission or rejection of the action) or on a material preliminary question (admission or rejection of a substantive legal objection).
A procedural judgment is the pronouncement by which the judge decides whether they are authorised to enter into the merits of the case and, consequently, to render a judgment on the merits at a later date. The court issues either a decision of dismissal if a pretrial issue is missing, or an admissibility decision if it considers the challenge to the existence of a pretrial issue to be unfounded.
2.1.3 Contradictory Judgment and Judgment by Default
A contradictory judgment is given when both parties have been heard by the judge before the decision is made.
A decision by default is given when the defendant does not appear at the trial and the judge decides without hearing them.
2.1.4 Condemnatory, Formative or Declaratory Judgments
The condemnatory judgment corresponds to the condemnatory action that condemns the defendant to performance.
The formative judgment corresponds to the formative action that creates, modifies or removes the right that is the subject of the case.
The declaratory judgment corresponds to the declaratory action that establishes the existence of the right invoked by the claimant.
The Civil Procedure Code (CPC) deals specifically only with:
- the final judgments (Article 236, CPC);
- the interlocutory judgments (Article 237, CPC);
- the interim measures (Articles 308(1)(b) and 319(a), CPC);
- the ex parte interim measures (Article 265, CPC); and
- the "other decisions and orders of instruction" (Article 319(b), CPC).
Interim measures are to ensure the subsequent compulsory execution of a right, to provisionally settle a legal situation before the court has ruled on the merits of the case or to taking evidence today that could disappear tomorrow. They do not have the force of res judicata.
Ex parte interim measures are issued in cases of urgency; they differ from (ordinary) interim measures only in that they are issued without the opposing party being heard beforehand. If the court grants such measures, it must then promptly hear the opposing party and rule without delay on the application for interim measures (Article 265(2), CPC). It then issues a decision on interim measures that replaces the ex parte interim measures. It is not possible to appeal against ex parte interim measures.
The other decisions concern purely procedural matters. To this extent, they have the force of res judicata regarding the parties and third parties concerned.
- a recusal decision (Article 50(2), CPC);
- a decision on accessory intervention (Article 75(2), CPC);
- a decision on third-party action (Article 82(4), CPC);
- a decision admitting or refusing new facts and evidence (Article 229, CPC); and
- a decision admitting or refusing the amendment of the statement of claim (Articles 227 and 230, CPC).
An order of instruction relates to the preparation and conduct of the proceedings. In so far as they are not binding or res judicata, they are subject to change at any time. Examples include:
- the setting of time limits for the submission of pleadings (eg, Article 223(2), CPC for the statement of defence);
- the extension of limitation periods set by the court (Article 144(2), CPC);
- the summons to appear (Article 133, CPC); and
- the taking of evidence (Article 231, CPC).
Originally published by Chambers Global Practice Guide: Enforcement of Judgments 2021.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.