Originally from Attachment of Assets

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1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshal?

When it comes to enforcement proceedings, Swiss law distinguishes between non-monetary claims (e.g., performance in kind) and monetary claims (i.e., payment of an amount of money or creation of a security interest). Whilst enforcement of non-monetary claims is governed by the Swiss Code of Civil Procedure (“SCCP”), in particular Article 335 et seq., enforcement of monetary claims is regulated by the Swiss Debt Collection and Bankruptcy Act (“DCBA”). 

The same dichotomy applies to interim measures sought to secure the enforcement of a claim—be it adjudicated by judgment or not—depending on whether it is monetary or non-monetary. Such measures can be applied for at any time during judicial proceedings on the merits or even before such proceedings have been initiated.

In practice, the most common situation arises where a plaintiff wishes to secure a monetary claim by attaching the debtor’s assets such as bank accounts held in Switzerland. By way of an attachment order, the debtor or garnishee (the third party holding the debtor’s assets, such as a Swiss bank) is prohibited under threat of criminal sanctions to dispose of or transfer the attached assets (Article 271 et seq. DCBA). Depending on the nature of the assets to be attached, the local Debt Collection Office (“DCO”) in charge of the execution of the attachment may also request that such assets be placed in its custody, which is, however, rare in practice.

An attachment order is merely an interim measure aiming at securing the later enforcement of a monetary claim but, as a rule, does not grant the plaintiff any preferential rights over the attached assets (for further details regarding preferential rights, see the answer to question 18). The attached assets remain the property of the debtor, who is merely prohibited from disposing of the said assets or from transferring them, as are garnishees notified of an attachment order.