Your Team for Swiss Law – now also in Geneva
You have founded a startup company and you want to conquer the market with a great product or service. When the first customers don't pay on time, however, menacing clouds are starting to appear on the horizon. Failing incoming payments can squeeze your cash flow and, as a result, you might become unable yourself to settle all your payments on time. In either case, taking an efficient approach conscious of the legal framework gives you a big advantage.
Businesses nowadays structure their value chain globally. In doing so entire operations, but sometimes only individual functions (sales activities, services provided etc.), can be transferred within a group; often across borders. Such relocations of functions within a group usually occur free of compensation and have so far rarely been taxed. Nevertheless, a cross-border business restructuring can already under the current legislation lead to tax consequences; particularly, if the transferring company is not compensated in line with market conditions.
Cross-border insolvencies are often complicated and time-consuming. In the regulated financial sector, significant efforts have already been made in Switzerland and internationally to streamline these processes and to facilitate cooperation between the relevant authorities across jurisdictions. Forthcoming changes to the Swiss Law on Private International Law (PILA) seek to modernise the general regime applicable in Switzerland to cross-border insolvencies outside of the regulated financial sector. The revised rules are expected to enter into force at some point in 2019.
Schedule of claims – What is it all about?
Once bankruptcy proceedings have been opened over a debtor, the bankruptcy administration must prepare an inventory to determine the extent of the bankruptcy estate. By means of public notice, the creditors and debtors of the bankrupt are requested to come forward (so-called call for claims). Within one month, the creditors must file their claims or other demands against the bankrupt with the bankruptcy administration. Subsequently, the bankruptcy administration draws up a list of claims.
The bankruptcy administration checks the registered claims and decides whether it recognizes them and, if so, in what amount and rank. Based on these decisions, it draws up the schedule of claims. It is a schedule showing the order in which the claims of the various creditors should be satisfied. The rejected demands are also marked on the schedule of claims, together with the reason for the rejection.
Due to the increasing competition by online shops, the digital revolution has often been associated with an increase in bankruptcies. However, digitisation can also help reduce the risk of insolvency and thus the number of bankruptcies.
If bankruptcy proceedings are opened against a Swiss bank or a Swiss securities dealer (hereinafter collectively referred to as "Bank"), deposits by natural and legal persons, up to a maximum amount of CHF 100,000 per person and Bank, are treated as privileged.
The Debt Enforcement and Bankruptcy Act (DEBA) regulates the procedure by which a person in Switzerland is able to recover money from his/her debtors by means of governmental enforcement. In Switzerland, it is relatively easy to initiate a debt enforcement procedure compared to other legal systems. When a debt enforcement procedure is initiated against a person, an automatic entry is made against him/her in the debt enforcement register, which is also visible to third persons for up to five years after completion of the procedure. This can have negative consequences for him/her. The planned amendments to the DEBA are intended to provide a remedy.
The two Swiss major banks have changed their legal structure. Towards the end of 2016, Credit Suisse launched its new subsidiary Credit Suisse (Schweiz) AG, which comprises the universal bank's business for Swiss customers. UBS already spun off the areas retail & corporate and wealth management booked in Switzerland into UBS Switzerland AG in June 2015. What is the background of these structural changes? And what do they mean for the two major banks' customers?
For many companies, the outsourcing of data hosting to an external hosting provider is attractive for security and cost reasons. Before sensitive or valuable data is managed externally, however, the management should consider a possible bankruptcy of the hosting provider. Such an event raises various legal questions, of which only a few have been clarified.
Composition proceedings – What is at issue?
Composition proceedings are a legally regulated settlement of debts procedure. They basically serve the financial rehabilitation of the debtor, a natural or legal person.
Therefore, composition proceedings can be a more interesting long-term solution than bankruptcy proceedings for creditors and debtors, often yielding better results for the creditors. However, as a rule, composition proceedings also require that the creditors are willing to forego part of their claims at the beginning of the proceedings.