Switzerland collection profile

 

Switzerland
       

Switzerland

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Complexity of collecting debt:

grading
notable High Very High Severe


Executive summary

  • The paying behavior of Swiss companies is very good. Most payments tend to be made in advance or within 30 days.
  • Domestic courts are fairly efficient in dealing with disputes in a timely manner; however collecting debt through negotiation remains the most effective option.
  • Indeed, even though mechanisms designed to increase debt renegotiation and company rescue have been put into place, liquidation would seem to remain the default procedure at this time, thus leaving little chances for unsecured creditors to collect debts from insolvent debtors.
 
General Information GENERAL INFORMATION arrow-transparent
 
Collection Practices COLLECTION PRACTICES arrow-transparent
Court Proceedings Court PROCEEDINGS arrow-transparent
 
Insolvency Proceedings INSOLVENCY PROCEEDINGS arrow-transparent
 
General Information 

GENERAL INFORMATION

Days Sales Outstanding (DSO)

The payment behavior of Swiss companies is very good. Most payments tend to be made in advance or within 30 days, whilst delays of up to 10 days may appear occasionally.

 

Late payment interest

Article 73 and 104 of the Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations) provide that interest amounting to at least 5% of the debt is due from the date of the payment request (Mahnung/Mise en demeure). As a means to harmonize domestic law with EU regulation 2000/35/EC, Swiss Parliamentarians suggested that a penalty interest of 8

percentage points above the Swiss National Bank’s interest rate (i.e. 10.68 in total) might at some point be applied to late payers, however no such has been put in place as of March 2014.


According to Art. 27 III SchKG, costs for third party collection costs cannot be charged to the debtor.  Collection occurs through the intermediary of the Municipal Debt Collection Office (Betreibungsamt / Office des Poursuites), which then imposes fees (calculated on the basis of the complexity of the case, the process duration, etc.) on the debtor prior to redistributing the amounts to the creditor.

 
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collection practice 

COLLECTIONS PRACTICES

Orchestrated negotiation first

Although domestic courts are efficient and reliable, amicable settlement opportunities should always be considered as a serious alternative to formal legal proceedings. Before starting legal proceedings against a debtor, assessing their assets is important as it allows verification as to whether the company is still active and whether recovery chances are at best. In addition, it is essential to be aware of the debtor’s solvency status: if insolvency proceedings have been initiated, it indeed becomes impossible to enforce a debt (see below). In addition, conciliation or mediation proceedings before a Justice of the Peace prior to commencing formal legal action is mandatory unless i) the a dispute falls within the jurisdiction of the Commercial Court of Zurich, ii) the parties have agreed to ignore this opportunity when the claim is above CHF 100,000, iii) the proceedings concern certain actions filed under the Federal Debt Enforcement and Bankruptcy Act, iv) the proceedings concern the enforcement of a judgment rendered by a competent court as provided under the Lugano Convention of 1988. If the parties cannot agree on a settlement, the conciliation authority will issue a writ (Klagebewiligung) permitting the claimant to bring the dispute before the competent District Court within three months (failure to submit a statement of claim to the competent court within three months does not preclude a case but the claimant would have to resubmit the claim for conciliation).

 
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Court Proceeding 

COURT PROCEEDINGS

Switzerland is a federal state composed of twenty-six cantons, where the rules are codified and the case law only has a limited law-creating role. Cantons retain all powers and competencies not delegated to the Confederation by the Swiss Federal Constitution, and are responsible for law enforcement (beside healthcare, welfare, public education and power of taxation). Although the courts have been bound by a unique Civil Procedures Code since January 2011, the cantons' civil or administrative courts may deal with claims in the first and second instance. Only four cantons (Aargau, Bern, St. Gallen, Zürich) would provide for specialized commercial courts. All four Commercial Courts usually deal with international commercial disputes depending on the place of jurisdiction. At the federal level, the Federal Administrative Court and the Supreme Court of Switzerland (Lausanne) would have final jurisdiction to reconsider decisions rendered at the cantonal level.

If the amicable phase fails or if the debtor questions the claim, the option of starting legal proceedings remains. Swiss law provides for two types of proceedings for the enforcement of money claims respectively referred to as "special execution proceedings" (Spezialexekution, i.e. the seizure of assets) and "general execution proceedings" (Generalexekution, i.e. bankruptcy). Both types of enforcement proceedings may be initiated by a creditor (or a private individual/ company claiming to be a creditor) by filing an enforcement request with the competent debt enforcement authority (Office des Poursuites / Betreibungsamt) and asking for issuance of a payment summons to the debtor. Without assessing the substance of the alleged claim, the Authority summons the debtor to pay within twenty days or to bring a defence within ten days. In the absence of any reaction, the creditor may request a default judgment ordering attachment on the debtor’s assets. When a claim is certain and undisputed, or when the creditor has already obtained an enforceable judgment against the debtor, the dispute may be solved through summary proceedings in which documentary evidence prevails over hearings (which are inexistent) and in which the debtor's right to oppose the claim is waived. When the claim is disputed by the debtor, the court may decide to either set the objection aside and authorize continuation of the enforcement proceedings (under Article 88 SchKG) with the competent debt enforcement authority, or to have the dispute solved through full court proceedings within one year of service of the payment summons. It should be noted that, since 2011, the Swiss Procedural Code has introduced a significant pre-trial discovery method into proceedings which allows the parties to request evidence from the other party prior to commencing litigation. The courts would typically award remedies in the form of compensatory damages, specific performance, seize and sell orders, declaratory judgments, etc. Punitive damages are however not available. In practice, using a lawyer is highly recommended at all stages because debts are frequently questioned without any justification being required. Having said this, any action against a debtor will be kept on public records for five years, which may constitute a source of pressure whilst collecting debt.

 
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insolvency Proceeding 

INSOLVENCY PROCEEDINGS

Swiss bankruptcy legislation is based on the Federal Law of 1889 on the pursuit of debts and bankruptcies (as amended in 1994). Each canton however has its own Debt Collection Office in charge of collecting complaints, improving the communication between the several parties at play, processing seizures or writing assets inventories. The debt collection process is initiated when the debtor or creditors file a request with the local Office.

 
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