Debt Collection in Switzerland

Our Law Firm / collection agency has acquired an in-depth knowledge of the legal and jurisprudential provisions in relation to the recovery in Switzerland of credits due to natural or legal persons residing/based in Switzerland, with particular reference to the notification, exequatur, and subsequent enforcement in Switzerland of Italian injunctions or judgments.

With regard to the enforcement in Switzerland of enforceablejudgments or injunctions issued by Italian courts, the procedure normally adopted is indicated below:

  1. a) notification of an enforceable Swiss writ to the debtor;
  2. b) exequatur in Switzerland of the Italian enforcement order;
  3. c) application for the final rejection of opposition (if made) to the enforceable Swisswrit;
  4. d) proceedingsare carried out against the debtor.

It should also be noted that it is necessary to pay the utmost attention to the methods of notification of Italian judicial documents in Switzerland; in fact, Switzerland has expressly opposed the use on its territory of the direct transmission (to the counterparty) of judicial documents by mail, so, in order to avoid exceptions during enforcement in Switzerland, it is necessary to proceed with notifications through the central cantonal authorities for mutual judicial assistance in civil or commercial matters (for the Canton Ticino the Court of Appeal, Rogatorie internazionali (International Letters Rogatory), via Pretorio 16, 6901 Lugano). Below is a link to the list of Swiss judicial authorities competent for notifications in civil or commercial matters:

http://www.rhf.admin.ch/rhf/it/home/zivil/behoerden/zentral.html

The Swiss Federal Court has definitively established that the Italian injunction constitutes a decision pursuant to art. 32 of the Lugano Convention and can, therefore, be recognised and enforced in Switzerland if it has a declaration of enforceability, particularly if it is thatdeclarationreferred to in art. 647 of theCPC ITA (Italian Code of Civil Procedure), especially for lack of opposition or lack of activity on the opponent’s part, that referred to in art. 653 et seq. of the CPC ITA (Italian Code of Civil Procedure), decreed in the event of rejection or partial acceptance of the opposition for other reasons, respectivelythat referred to in art. 648 of the CPC ITA (Italian Code of Civil Procedure), provisionally issued pending an opposition.

It should be noted, on the other hand, that super-provisional judgment sin audit aaltera parte are not liable to recognition under the Convention before proceedings in the State of origin could have become contradictory. This applies in particular to the injunction of Italian law pronounced ab origine in enforceable formaccording to art. 642 of the CPC ITA (Italian Code of Civil Procedure), since it does not satisfy the requirement of prior adversarial procedure even ifonly virtual and therefore cannot take advantage of the Lugano Convention’s system (consequently rendering it impossible to request its enforcement in Switzerland). Should the debtor reside in Italy, it is possible, under certain conditions, to request the preventative seizure of assets belonging to the debtor him- or herself on Swiss territory (current accounts, salary, immovable property, etc.).

Debt recovery in Switzerland can be summarised as follows:

As regards cross-border debt recovery (Italy/Switzerland and Switzerland/Italy), the cardinal principle in determining the applicable law is that of the freedom of choice of the contracting parties, who can choose the law applicable to the contract in full or inpart, by a choice expressed in writing or resulting in a reasonably certain manner from contractual provisions or the circumstances.

In the absence of choice on the part of the contracting parties, the so-called principle of proximity is applied, according to which the international contract is governed by the law of the Country with which the contract is most closely connected, with the further possibility that, should a part of the contract show a closer connection with a Country other than the one whose law governs the rest of the agreement, this part will be governed by a law other than that applied to the rest of the agreement. In addition to the principle of proximity, it is presumed that the contract is most closely connected with the Country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his or her residence (for natural persons) or its central administration (for legal entities, companies, and associations). If the party that must effect the characteristic performance concludes the contract in the course of its economic/professional activity, then the Country to be considered shall be the one where the principal place of business is located (or, if the performance must be effected from an office other than the headquarters, the Country shall be that in which this different location is situated).

Finally, as regards the competent court, the regulatory provisions referred to in the Convention concerning jurisdiction, the recognition, and the enforcement of judgments in civil and commercial matters which came into force for Switzerland on January 1, 2011 (Lugano Convention) are again applicable.

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