Switzerland - Attachment of Assets
André Brunschweiler, Sandrine Giroud, and Catherine A. Kunz Lalive, Geneva and Zurich, Switzerland
Originally from Attachment of Assets
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 (e.g., specific performance) and monetary claims (i.e., payment of an amount of money). 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 holds true for interim measures aiming at securing the enforcement of a judgment. 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 is that 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 assets attached (Article 271 et seq. DCBA). Depending on the type of assets, the local Debt Collection Office (“DCO”) in charge of the execution of the attachment may also request that such assets be placed in custody, which is, however, rare in practice.
The 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 restricted from disposing of the said assets or from transferring them.