The topic I have been asked to speak about is so wide-ranging that I will concentrate on only a few specific aspects. My choice of topics may appear random, but is based on issues I have dealt with in my work as an attorney in the first four months of 1998.

The topic I have been asked to speak about is so wide-ranging that I will concentrate on only a few specific aspects. My choice of topics may appear random, but is based on issues I have dealt with in my work as an attorney in the first four months of 1998.

Enforcement of claims evoke events of default, debt enforcement procedures, and litigation. Enforcement of claims is the last resort when a bank seeks to prevent losses caused by credit risk. One of the current trends affecting the development of the banking sector is aimed precisely at avoiding the need for enforcement of claims: risk management is a means of raising awareness of minimizing and avoiding risk.1

Furnishing security is a means of protecting the creditor bank and therefore of avoiding risk. Lawyers assign security to the domain of private law. However, bank claims secured by collateral also come within the domain of supervisory law. Under the currently applicable capital adequacy regulations—which are based on the work of the Basle Committee on Banking Supervision2 and comply with the rules laid down by the European Union3—equity requirements are weighted according to credit and market risk and, in particular, to counterparty risk, the duration and the type of security lodged with the bank.4 Consequently, security has an impact on the financial situation of a bank, but also on the stability of the financial system as a whole. Furthermore, in the interest of shareholder value, banks are under pressure to reduce their equity.5

In the first part of this paper I compare two tools used for risk reduction, set-off and pledge. Such a comparison has to take into account legal aspects as well as the advances in IT and telecommunications that result in the rationalization and centralization of systems, values, and securities.

In the second part, I focus on the enforcement of claims from the point of view of the debtor and immunity against enforcement of claims to the detriment of central bank assets deposited abroad.

Pledge and Set-off as a Means of Securing Bank Claims

Constitution, Recording, and Release of Pledge

Pledging of Claims

Clients’ liquid assets deposited in bank accounts are claims against the bank. Such claims are in general not incorporated in securities. Under Swiss law claims not incorporated in securities are pledged by means of a written pledge agreement and by handing over the acknowledgment of debt (Art. 900 Civil Code). The general business terms and conditions of Swiss banks regularly provide for a general right of set-off and of pledge covering all assets on deposit with the bank. Swiss law allows the right of pledge relating to an account with a bank in favor of this particular bank. The collateral to be pledged is an obligation of the bank itself: a right of lien on the bank’s own debt is admissible.6

Value rights, i.e., uncertified financial claims, exist in the form of bookentry securities for government securities.7 Pledging of such value rights is effected according to the provisions governing the pledging of claims. Further, the right of lien must also be recorded in the register.

Pledging of Securities

Securities may be pledged in the same way as ordinary claims. In addition, a special form of pledging for securities is possible (Art. 901 Civil Code). In the case of bearer securities a written pledge agreement is not required. A verbal agreement, followed by transfer of the security to the pledgee, is sufficient (Art. 901 para. 1 Civil Code). In the case of securities made out to order, a pledging endorsement is also required (Art. 901 para. 2 Civil Code).

Securities are the main type of asset pledged as collateral in the Swiss banking business, though account balances, fiduciary investments, and precious metals may also be used. Ready marketability is the key criterion determining whether an asset is acceptable as security.8

Pledging in Practice

In principle, no register exists for chattels.9 Physical control (possession) is deemed to express the existence of a ius in rem. Therefore, the pledge must be outwardly evidenced by transfer of possession (publicity rule). Under Swiss law constructive possession in the pledging of chattels and claims is impossible: the pledgor may not retain power over the chattel on the basis of any legal relationship (Arts. 717 and 884 Civil Code). However, in place of actual transfer, two substitutes for transfer are permissible:10

  • Actual transfer of possession is not necessary if the pledgee is already in possession of the securities prior to pledging (brevi manu traditio).

  • If the security is owned by a third party, it is sufficient for pledging purposes to assign the claim for restitution against the third party to the pledgee (notice of transfer of possession, Art. 924 Civil Code).

In accordance with the principle that the pledge must be outwardly evidenced by transfer of possession (publicity rule), the pledging of securities becomes effective as soon as possession is transferred. If possession is not transferred in accordance with the law, the pledge is not effective vis-à-vis third parties (Art. 717 and Art. 888 para. 2 Civil Code).

The pledging of assets in favor of a bank is straightforward. Based on the contractual relationship that a customer enters into with the bank on opening an account (or custody account), the assets serving as security are already in the bank’s possession.11 In practice, the vast majority of securities accepted by banks as collateral (medium- and longer-term bonds and notes as well as shares) are held in collective custody by the Swiss central securities depository SEGA. Thus transfer already takes place with delivery into collective custody. Securities held by SEGA12 are therefore pledged by means of a pledge agreement not requiring any specific form and by notification to SEGA of the transfer of possession.13

Banks either conclude special pledge agreements with their clients or refer to the relevant clauses in their general terms and conditions. These clauses contain a right of lien agreed in advance for future utilization, but may only be enforced once an actual claim by the bank against the customer has materialized. Any claims originating from the business relationship between the bank and customer as it stands at present or as it can reasonably be expected to develop in future are covered.14 Clauses imposing an encumbrance on the pledgee whose effect is of indefinite duration and whose scope cannot be grasped by the pledgee are in contravention to the law. They create an excessive degree of dependence.15

Expiration of Pledge

The pledge expires if the claim is extinguished or if the pledged chattel is destroyed (Art. 889 in conjunction with Art. 899 para. 2 Civil Code). The loss of possession of the pledged chattel by the creditor also entails the expiry of the lien if the creditor is legally unable to recover the pledged chattel (Art. 888 para. 1 in conjunction with Art. 899 para. 2 Civil Code).

Subsequent Pledge

By way of exception to the principle that the pledge must be outwardly evidenced by transfer of possession (publicity rule), the law permits the subsequent pledging of securities or claims: an already pledged security is to be delivered to the second pledgee once the first has received satisfaction. For the subsequent pledge to be effective, the prior pledgee must be notified in writing (Art. 886 and 903 Civil Code). With the consent of the pledgor, even the creditor can pledge the chattel in his possession. Banks are required by law to obtain the consent of the pledgor in writing and in a special document that deals exclusively with the pledging of the security.16

Ranking of Pledges

The principle of prior constitution applies when the ranking among different pledges is to be determined (Art. 893 para. 2 in conjunction with Art. 899 para. 2 Civil Code). However, the bona fide purchaser of a pledge takes priority over any earlier constitution of a pledge (Art. 884 para. 2 Civil Code).

Pledging Under Swiss International Private Law

In a cross-border relationship, the legal situation in regard of pledging of chattels is complex and involves quite a lot of risks for the creditor. The pledging of claims and securities is not subject to the rules of one jurisdiction:

  • The pledging of claims and securities is subject to the law chosen by the parties, i.e., the pledgor and the pledgee.17 Such a choice of jurisdiction covers not only the pledge agreement but also the transfer of the possession of the chattel to the pledgee.18

  • The choice of law is only valid between the parties. For third parties, the pledging is subject to the law at the ordinary residence of the creditor for whom security in the form of claims or securities is pledged.19

  • Only the law to which the pledged rights are subject can be invoked against the debtor of the pledged claim or securities.20

Enforcement of Secured Claims

Enforcement of a Claim Through Official Realization of the Pledged Chattels

In Switzerland a separate procedure exists for execution in the case of claims secured by collateral, i.e., debt collection through the realization of a pledge.21 This special execution procedure does not take into account the interests of other creditors but focuses on the liquidation of assets set aside for the creditor by the pledging of the chattel.22 This ensures that the pledgee has priority over the other creditors.

The enforcement office is in charge of the realization of a chattel. Realization is in principle effected by public auction, or by private sale for securities and items with a market or stock exchange price, as long as the price offered is equivalent to that day’s market price.23

Enforcement of a Claim Through Private Realization of the Pledged Chattels

The creditor is free to liquidate the collateral if this has been explicitly agreed between the parties.24 The general business terms and conditions of Swiss banks stipulate in case of the customer’s default the right for the bank to liquidate the pledged assets by selling them on the market, by this avoiding to have to resort to the official procedure of liquidation for pledged assets:25

The bank has a right of lien on all assets it holds for the account of a client whether in its own custody or placed elsewhere .… Immediately upon default by the client the Bank shall be entitled without further notice to dispose, either by forced sale or in the open market, of any assets over which it has a right of lien.

Private realization is effected by the sale of the pledged item to a third party or, in the case of claims, either by sale to a third party or by calling in the amount owed. Pledged assets are preferably sold by auction or by sale on an open market such as a stock exchange. If the assets are listed or have a market price, the bank may itself act as a counterparty, in which case the assets pass into its ownership.26 It is not admissible, however, to include a cancellation clause providing for the collateral to become the property of a creditor who is not satisfied (Art. 893 Civil Code). Private realization allows the creditor solely to satisfy his demands from the proceeds of the sale. With private realization, therefore, the creditor is obligated to provide settlement details and pay out any surplus.27

Private realization of pledged assets is inadmissible if the debtor is the subject of bankruptcy proceedings, or if execution has been levied on the pledged assets by third-party creditors, or if the pledged assets have been seized.28

Enforcement of Claims Secured by Chattels in the Event of Bankruptcy

Neither of the two modes of realization described above is applied when the debtor of a claim secured by collateral becomes bankrupt. The right to dispose of a pledge by way of special execution procedure can no longer be exercised. A private realization clause is not effective with respect to other creditors in general execution proceedings.29 Pledged chattels belonging to the debtor form part of the bankrupt’s estate under Swiss law30 and are disposed of together with the debtor’s remaining assets.31 The pledgee is entitled to a payment from the proceeds of the collateral with priority over the other creditors.32

If the pledged collateral is held by a third party, it also forms part of the bankrupt’s estate. In case of doubt concerning ownership, the receiver in bankruptcy will base his actions on the statements made by the creditor.33 If, however, the collateral is the property of a third party, i.e., if collateral deriving from third-party assets has been pledged, the claim is, in the final analysis, to the debit of the debtor’s assets. The debt thus remains undiminished. However, separate debt collection proceedings against the third-party pledgor for the realization of this collateral are admissible.34 The creditor’s claims are transferred to such a third party either because the collateral has been realized or because it has been redeemed by the third party.35

The exact time of pledging is immaterial. However, what may be contested is pledging collateral within the one year prior to the adjudication of bankruptcy for the purpose of delivering collateral at a time when the debtor (pledgor) is already over-indebted.36 In such a case the receiver in bankruptcy may institute proceedings against the person who benefits from the chattel.37

Set-off Under Swiss Law

Swiss legislation differs from other jurisdictions in that set-off falls under substantive law and not procedural or bankruptcy law.38

Set-off According to Statutory Law

Under Swiss statutory law, set-off empowers persons to change a legal relationship to which they are a party by unilateral act (einseitige Gestaltungsbefugnis).

If two persons have entered into mutual obligations and owe each other pecuniary debts or claims of equivalent character, either party may unilaterally invoke set-off and so cause the mutual claims to be compensated and thereby extinguished. Compensation operates up to the amount of equality in claims and leaves the remaining part of the higher claim unaffected.

Four conditions are essential for set-off according to statutory law:39

  • mutuality of claims and counterclaims between two parties;

  • the claim of the party declaring set-off must be due;

  • claims must be of equivalent character (which is always the case for pecuniary debts);

  • claims to be set off must be suable.40

The discharge does not operate automatically, but requires a declaration of the party refusing payment on grounds of setting off its counterclaim.41

Set-off is not permitted for certain obligations, notably obligations to restore items deposited.42

Set-off According to Agreements Between the Parties

The pertinent legislation regarding compensation is of a nonmandatory nature. By and large the parties may define the modalities of set-off under a private law agreement. Such an agreement has the effect of overriding legal provisions for unilateral set-off wherever it contains any specific provision regarding compensation.43 Acceleration clauses in particular are widely used in the general business terms and conditions of Swiss banks, allowing the bank to declare set-off at any time:44

The bank has a right … of set-off as regards all funds credited to a client’s account in respect of all claims the bank may have against the client, irrespective of the due dates of such claims .…

Bank customers may freely dispose of their assets until the time the bank declares set-off.45 A bank that relies on its right of set-off cannot be sure whether there will be a credit balance on the customer’s account at the time the set-off declaration is exercised. This situation may be modified to the bank’s advantage through the contractually agreed inclusion of a current account clause in the bank’s favor (Art. 124 para. 3 Code of Obligations): the current account clause contains an agreement between the bank and its customers to defer all claims arising from their mutual business relationship until the settlement date. Debts due are not claimed individually but are merely treated as accounting items for striking the balance. In Swiss banking practice, the claims are set off continuously after each operation and automatically, i.e., without a separate declaration of set-off.46/47

Set-off Under Swiss International Private Law

If set-off is agreed contractually, the set-off agreement is governed by the law chosen by the parties.48 If no jurisdiction is specified, the characteristic performance arising from the set-off agreement between the bank and its customer is logically the activity of the bank that operates the current account.49

Compensation by unilateral declaration (not based on a set-off agreement) is subject to the law governing the claim against which set-off is invoked.50 If a bank invokes set-off against its client, set-off is subject to the law applicable to the client’s claim against his bank.51

Enforcement of Set-off

Set-off in Civil Procedure

If a set-off agreement has been signed, then in the event of litigation this agreement must be judged and enforced by a court of law.

If set-off is based on statute, the party that wishes to refuse payment must declare a set-off (Art. 124 para. 1 Code of Obligations). Set-off has the simultaneous effect of cancelling the claim and counterclaim in question. The claims lapse retroactively: the law stipulates that set-off take effect from the time when the claim and counterclaim can be offset against each other (Art. 124 para. 2 Code of Obligations).52

If the set-off declaration is declined by the party toward which it is proposed, this party need not file an objection to the declaration. It is sufficient for this party to enforce its own claims through the usual legal channels and to contest the validity of the set-off in this way.53

In civil proceedings, set-off generally serves as the defendant’s instrument of defence. The defendant raises his objection against set-off with the plaintiff and the question of set-off thereby becomes the object of the proceedings. In the eyes of the law, however, the objection to set-off is not identical to the set-off declaration: the latter must be submitted to the counterparty, whereas the objection must be lodged with the court.54

Set-off in Bankruptcy

Statutory law not only permits set-off in bankruptcy but even favors it: first, the adjudication of bankruptcy facilitates the fulfillment of the statutory requirements that the claims must be both of equal character and due: it makes all obligations of the debtor become due (Art. 208 para. 1 Federal Law on Debt Collection and Bankruptcy) and converts claims not relating to a sum of money into monetary claims (Art. 211 para. 1 Federal Law on Debt Collection and Bankruptcy). Second, set-off is in principle permissible against the bankrupt’s estate.55 The set-off option is of advantage to the creditor who is at the same time a debtor in respect of the bankrupt’s estate, as his claim is satisfied in full and not merely to the extent of the bankruptcy dividend.56

Set-off is not permitted in bankruptcy if used in an abusive manner. Set-off is ruled out if the counterparty of the bankrupt debtor becomes a party to the offsetting contract only after the adjudication of bankruptcy,57 or if the counterparty of the bankrupt debtor entered into the contract making set-off possible with the intention to deceive.58

The Competitive Advantage of Set-off Over the Pledge of Chattels

Comparison of Pledge and Set-off

For modern cross-border banking operations, the institution of the pledge is no longer of practical use. Its inflexibility becomes apparent, for example, in the need to transfer possession of the pledged chattels to the creditor (publicity rule), in the burdensome procedures for enforcement in bankruptcy, and in the difficulties of finding a simple solution to the questions of international private law.

Pledging of chattels does not seem to be an area in which the legal harmonization for cross-border transactions can be easily established on a voluntary basis, i.e., without the need for governmental action. This statement may be illustrated with the following chart comparing pledge and set-off.

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Collective Custody and Dematerialisation of Securities

These days, securities are mostly held in collective custody in order to improve the efficiency of securities trading and pledging. In some countries, legislation has resulted in physical securities being superseded by book entries.60

In Swiss banking practice, the securities are held in collective deposits. The immediate possessor is the central securities depository SEGA. The investors’ banks have first-rank intermediate copossession of the securities deposited while the investors themselves only have second-rank intermediate copossession. This form of possession is not outwardly apparent. Transfer of ownership or pledging is executed simply by making entries in the books of the central depository. It is not apparent at first sight why the rules governing in rem rights are applicable, since with regard to the investors, i.e., the owners of the securities, at least the immediacy of possession—evidence of an in rem right (publicity rule)—is lacking.61 The transactions are executed in much the same way as debit and credit entries on bank accounts.62

With the creation of the European economic and monetary union on January 1, 1999, a new payment system known as TARGET (Trans-European Automated Real-Time Gross-Settlement Express Transfer System) will be introduced. In TARGET, payment instructions will only be processed if sufficient funds are available.63 The European Monetary Institute and the central banks of the individual countries have agreed among themselves on the cross-border utilization of collateral within Target. This means that chattels may be pledged on a pan-European basis, regardless of their physical location.64 The European Monetary Institute requires that securities settlement systems and procedures ensure speedy, smooth, and reliable transactions.65 On a European level, only collective custody or book-entry securities will allow the necessary rationalization and centralization regarding pledging of chattels. Among the various procedures available, the European Monetary Institute is particularly in favor of a Real Time System that settles transfer instructions for both securities and funds on a trade-by-trade (gross) basis, with final transfer of securities at the same time as final transfers of funds. In the German version of the European Monetary Institute’s report, “delivery” of securities is translated as “Wertpapierverrechnung,” or “set-off of securities,”66 suggesting that physical possession is replaced by a book entry similar to a claim against the registrar. Offsetting of bonds and shares—this wording might be an erroneous translation or used on purpose. In any case it gives the impression that the practical handling of the claim against the central depository seems more similar to an in personam right than to an in rem right, by this avoiding the need for a fictitious transfer of possession.

Compared with these developments, the legal situation in Switzerland seems outdated. The legal character of collective custody is complex under Swiss law: by analogously applying statutory provisions tailored to different legal relationships, it is possible to establish on a contractual basis co-ownership of securities held in collective custody. However, this is not entirely co-ownership within the meaning of the law.67 Only theoretical legal relationships exist between the investors, who represent a fortuitous community of interest brought together by banks. As a result of banking secrecy, it is impossible to disclose the identity of the investors and to constitute a community of co-owners as provided for by the law. Moreover, the termination of co-ownership in the event of the withdrawal of one investor does not take place as legally provided for with the participation of all co-owners. The bank takes the place of the community of co-owners. According to traditional legal doctrine these deviations from the provisions of the law contradict the principle of a numerus clausus of rights in rem: the Civil Code recognizes only the three forms of ownership governed by law (sole ownership, joint ownership, and co-ownership), which are the only forms that may be legally entered into.68 Legal doctrine regards the provisions concerning deposits of fungible goods as the basis for this kind of co-ownership and sees Art. 484 paras. 2 and 3 Code of Obligations as applying also to rights in rem; this provision takes precedence as a lex specialis over the regulation of co-ownership in the Civil Code.69

The definition of securities in the Swiss Federal Act on Stock Exchanges and Securities Trading is clearly a step forward: securities are defined as “standardised certificates which are suitable for mass trading, rights not represented by a certificate with similar functions (book-entry securities) and derivative instruments.”70 For the purposes of capital markets, securities in tangible form and book-entry securities are treated identically. The same should apply also to legal issues falling under private law like the transfer of ownership or pledging.71 Swiss private law must in my eyes be amended regarding book-entry securities and value rights in order to fit into the fast developing European financial market.72 In particular, the new legislation should make explicit that any securities held in a central depository operated from Switzerland are deemed to be sited in Switzerland and that Swiss law governs the settlement and pledging of such securities, irrespective of the actual place of custody of these securities. Further, the new legislation should allow that book-entry securities and value rights can be purchased in good faith from a person who is not the owner and, in case of bankruptcy of the central depository, ownership in book-entry securities and value rights allows demanding these securities and rights back from the bankrupt’s estate, similar to the vindicatio for goods.73

The Example of Netting

Netting agreements are widely used for interbank payment orders and financial contracts that involve reciprocal commitments for future payments in the same or different currencies. Netting agreements are risk-reduction tools based on private law contracts. The concept of netting is not precisely defined in law, but it widely uses set-off as a means, first, of reducing the numbers of payments to be made (payment netting) and, second, as a means of calculating replacement values in case of premature termination of nonperformed contracts (close-out netting).74

Netting agreements have been widely recognized as enforceable in insolvency procedures and as a valid method for reducing equity capital requirements for off-balance-sheet assets and liabilities.75

The Example of Cash Pooling

At multinational groups, cash management is difficult to perform at an international level owing to the global nature of these companies’ activities. Depending on their business, the national subsidiaries of a multinational holding company may have either a shortage or an overabundance of liquidity. This is why banks offer cash pooling services to such multinational companies.

One way to establish cash pooling is to set up a special purpose vehicle (SPV). The sole objective of such SPVs is to smooth out intra-group financing flows. Based on a master agreement with the SPV, group companies lend surplus capital to the SPV, which the SPV then lends to group companies requiring additional liquidity. The payments are executed by the bank offering the cash pooling facility. This bank has to keep a separate current account for each group company and each currency. Implementation of cash pooling inevitably results in debit balances in one currency whereas in other currencies the SPV has a credit balance towards the bank.

In principle, the debit balances count as unsecured claims and need to be backed by equity with a risk weighting of 100 percent.76 This weighting could be reduced to 0 percent by way of pledging assets: under the Swiss capital adequacy rules, claims of banks that are backed by cash deposits that are pledged to the bank or at least equally well secured have a risk weighting of 0 percent.77

Pledging of the SPV’s claims to the bank as security for loans granted in other currencies is generally impossible in practice. When raising funds, multinationals usually exclude any pledging of their assets by way of negative pledges in which they promise to the creditor not to burden any assets with pledges in favor of third parties.

In the case of cash pooling, the bank may offset its claims arising from loans denominated in one currency against the SPV claims arising from this vehicle’s cash deposits in other currencies, provided such an option is explicitly allowed for in a set-off agreement. In Switzerland, banks are in principle not permitted to offset on-balance-sheet assets and liabilities.78 The accounting regulations of the Swiss Federal Banking Commission do allow exceptions to this rule, but only when the assets and liabilities concerned are denominated in the same currency.79 This restrictive attitude is based on the assumption that a bank is exposed to the exchange rate risk as long as set-off has not been declared or executed on a contractual basis.80

In off-balance-sheet business, it is permissible to set off the positive and negative replacement values of derivative instruments based on an enforceable netting agreement.81 The Swiss Federal Banking Commission shared the view expressed by a bank that a set-off agreement for a cash pooling facility should be placed on an equal footing with the netting of off-balance-sheet assets and liabilities.82 By this, set-off replaces the pledging of assets for the purpose of assessing equity requirements for loans.

However, the Basle Committee on Banking Supervision has just launched a consultation on the principles that should govern on-balance-sheet netting. One of the conditions under which on-balance-sheet netting of loans and deposits of a bank to or from its customer should be permitted is the denomination of the claim and counterclaim in the same currency; the modalities of permitting cross-currency netting still have to be explored.83 This proposal has already been criticised as a step backwards.84

Immunity of Central Bank Assets in Switzerland

According to Art. 92 no. 11 Federal Law on Debt Collection and Bankruptcy, assets of a foreign state or a foreign central bank that serve a sovereign purpose are unseizable—a precept based on international law.85 This provision was incorporated in Swiss law only in 1997, when substantial amendments of the Federal Law on Debt Collection and Bankruptcy came into force.86

Immunity of Foreign States to Judicial and Execution Proceedings in Switzerland

As a basic principle, foreign states and their representatives in Switzerland enjoy immunity from judicial and execution proceedings of other states. The primary purpose of immunity is to protect the sovereignty and independence of the foreign country and to prevent international conflicts. The rationale behind immunity must, however, be weighed against the state’s interests in exercising its court-empowered sovereignty and the plaintiff’s right to legal protection.87 The scope of sovereign immunity must be interpreted in a restrictive manner.88

Switzerland adheres to the principle of limited or relative immunity, i.e., only acts of a government (acta iure imperii) enjoy immunity whereas a state’s acts of commercial nature (acta iure gestionis) do not.89

In Switzerland, the distinction between the sovereign and commercial acts of a state does not stem from statutory law but has developed from judicial and administrative practice.90 Art. 30a Federal Law on Debt Collection and Bankruptcy contains a general provision in favor of treaties under international law and in favor of the Federal Law on International Private Law. If a treaty exists between Switzerland and a foreign state, the provisions of the treaty take precedence. On July 6, 1982 Switzerland signed the European Convention on State Immunity.91

The main criterion for distinguishing iure imperii acts from iure gestionis acts is not the purpose of the act but the nature of the legal relationship in which the foreign state is involved and to which it has recourse. Sovereignty is jeopardized when the domestic judge is able to impede the exercise of significant government tasks.92 The decisive question is thus whether the state has performed an act based on its public powers or whether there is a legal relationship of the kind that may be entered into between private entities.93

Indicators for iure gestionis acts include cases where the foreign state performs a transaction on another state’s territory without diplomatic relations with that state being affected.94 If a foreign state acquires a claim that was issued by a private individual, it does not follow that the claim will become a sovereign one.95 The issue of government bonds is regarded as a commercial act by the state;96 likewise the purchase of German coal-mining shares by the Italian state.97

The lex fori, i.e., Swiss law, is decisive in distinguishing iure imperii acts from iure gestionis acts. The Federal Court, however, also takes account of the foreign public law of the country in question.98

Immunity of State-Controlled Organizations

In principle, organizations with their own legal personality cannot claim sovereign immunity. Exceptions would only be conceivable if such organizations have acted with sovereign powers.99

If a bank enjoying close financial links with a government were to compete freely with privately run banks for international transactions while at the same time exploiting its immunity to avoid the consequences of judicial and execution proceedings, this would meet with general disapproval.100

Domestic Relationship

Even if the foreign state’s actions are iure gestionis, Swiss jurisdiction only applies if there is a particular connection to Switzerland. This requirement is derived not from international law but purely from Swiss legal practice.101 Ultimately, the requirement of a domestic connection does not concern immunity but international competence: in a specific case, which of several possible countries should be competent for judging a dispute involving a foreign relationship?102

A “litigious claim belongs to the Swiss territory”103 if the debtor’s legal relationship was established or entered into in Switzerland, or is to be performed here, or at least if the debtor has performed acts that indicate Switzerland as the place of performance.104

The indication of a domestic connection was considered to be adequate when the contract was concluded in Switzerland;105 an employment contract was concluded and performed in Switzerland;106 for a bond issue, a paying agent in Switzerland was designated;107 a place of jurisdiction in Switzerland was designated.108

A domestic connection was ruled out when no Swiss paying agent was specified;109 the presence of the debtor’s assets in Switzerland was the sole relationship with Switzerland;110 the creditor can freely choose the place of performance (or, as the case may be, the judge can freely choose the place of jurisdiction) and Switzerland is chosen as such.111

Intended Purpose of the Items for Which Attachment Is Sought

In addition to the general immunity of foreign states and public-law entities, immunity in execution proceedings is also possible in respect of specific items and assets that the foreign state possesses in Switzerland (independently of the nature of the legal dispute) that it has earmarked for its diplomatic service or for other duties devolving from its position as a public authority.112 In such cases it is not the (in any case vague) intrinsic nature of the legal relationship that counts but the intended purpose of the foreign state’s acts; immunity is granted for such specific purposes.113

In respect of bank accounts opened by foreign embassies, there is a tendency favoring sovereign purpose.114 For cash, bank balances and securities accounts, the Federal Court admits immunity only if specific sums or securities are earmarked for sovereign purposes.115 In the absence of such “ring-fencing,” immunity is not admitted.116

Case Law

The following cases predating the coming into force of Art. 92 no. 11 Federal Law on Debt Collection and Bankruptcy may be cited:

  • The Kuwait Investment Authority (KIA) is an autonomous legal entity under Kuwaiti law whose purpose is to administer state assets. Based purely on KIA’s legal autonomy, immunity was denied by the Federal Court.117

  • “Istituto per le Opere di Religione” (IOR) is an autonomous legal entity registered in Vatican City. It is not the Vatican’s official state bank but a monetary institution based in this state.118 IOR’s relationship with a Swiss bank in respect of IOR’s balances with this bank were ascribed to the Vatican’s commercial acts and immunity was denied.119

  • The custody account of the Central Bank of Libya at the Swiss National Bank (containing a certificate of debt of the International Bank for Reconstruction and Development) does not enjoy immunity to an attachment against the Libyan state. Every state and every state bank owns not only assets dedicated to sovereign purposes but also assets that are not used for performing sovereign tasks (state assets for investment purposes and not serving sovereign purposes) and that can thus be equated to the assets of private entities. Execution proceedings in respect of such assets can only be excluded if the assets in question are recognizably dedicated to a sovereign purpose. Cash and securities must be clearly reserved for such purposes, e.g., the maintenance of diplomatic missions.120

  • The Federal Court turned down an application for sovereign immunity submitted by the Banca de la Nacion (Peru), ruling that in respect of the bank transactions concerned the Banca de la Nacion had not been acting in a sovereign capacity.121

In a case concerning the Turkish central bank, the Federal Court’s ruling shows that legally autonomous institutions of foreign states may under certain circumstances invoke sovereign immunity. If the economic circumstances are taken as the basis, the externally apparent legal form is not decisive. Furthermore, Art. 27 European Convention on State Immunity also allows autonomous state institutions to have recourse to sovereign immunity if they are exercising sovereign powers.122

Immunity of the Foreign-Exchange Reserves of Central Banks

The legal significance of foreign-exchange reserves must be defined as such under both Swiss and foreign law.123 Swiss law has expressly singled out central bank assets as being unseizable, provided that such assets serve sovereign purposes.124

Federal Court rulings on central bank assets to date are not sufficiently relevant and are not adequate to the current importance of foreign-exchange reserves. We have to go back to the 1980s to find a ruling concerned explicitly with central bank assets. Since then, Switzerland has joined the International Monetary Fund and has started revising both its monetary constitution125 and its National Bank Act.126 Those parts of the latter revisions relating to foreign-exchange reserves became effective on November 1, 1997.127 Especially the documents preparing and explaining the revised provisions define the position of foreign-exchange reserves in Switzerland far more closely than was the case in the 1980s.

Under Swiss law, the central bank’s money-issuing activities are limited by the requirement of having assets to match the banknotes issued.128 According to the National Bank Act and the Federal Constitution, the foreign-exchange reserves are part of these counterbalancing assets.129 Art. 39 para. 7 Swiss Federal Constitution stipulates that the banknotes issued be covered by gold and short-term balances. This coverage is further defined by Art. 19 National Bank Act. According to Art. 19 para. 1 National Bank Act, the countervalue of the banknotes in circulation must be available in precisely defined assets, among them “… balances held in foreign currencies with maturities not exceeding six and twelve months respectively.”

Switzerland’s foreign-exchange reserves meet a number of monetary and currency-related purposes. First, they allow the central bank to intervene on the forex markets in the event of currency turbulence and ensure stable currency conditions.130 Second, the central bank needs foreign-exchange reserves for international payment purposes; the reserves form a “working balance” for the payment requirements of the bank and the Swiss Confederation.131 And finally, the reserves are a safeguard against crises: for a country like Switzerland that has close economic links with foreign countries, large foreign-currency assets are essential and the National Bank is responsible for procuring them.132 In short, Switzerland holds foreign-exchange reserves primarily to allow the central bank to pursue its monetary and currency policies. They are the assets that the central bank can use for international payments, i.e., that it can dispose of freely for influencing exchange rates and safeguarding against crises.133

How large do a country’s foreign-exchange reserves need to be if the central bank is to satisfactorily perform its duties? This depends above all on the size of the economy and the degree of a country’s international involvement. In Switzerland it is assumed that this requirement grows in step with the growth in foreign trade and capital transactions. A rule of thumb is that the unsecured foreign-exchange reserves need to be increased at least in line with nominal GNP.134 In addition, Switzerland’s foreign-exchange reserves are used as an instrument for regulating money supply. If the central bank wants to increase the money supply, it buys a foreign currency from the banks and supplies them with the equivalent in Swiss francs. At the same time, it sells the foreign currency forward (foreign exchange swap) so as not to enter into any exchange rate risk.135 The precise size of the secured foreign-exchange reserves cannot be stated but is determined by the needs of money supply control.

The investment of foreign-exchange reserves is fundamentally a sovereign activity under Swiss law. Only where reserves are used neither for exchange rate control nor for money supply control would a suspicion of iure gestionis be justified. This interpretation is confirmed by an unpublished ruling of the Federal Court mentioned in the literature.136

Under Swiss law foreign-exchange reserves are in principle regarded as serving sovereign purposes. Only if the reserves were disproportionately large could it be argued that the currency balances abroad were being held purely for the private-law acts of the foreign country.137

Overview on Attachment Against a Debtor’s Assets Under Swiss Law

The Term “Attachment” and Procedures

“Attachment” signifies seizure of a debtor’s assets by the authorities, the purpose being to ensure the success of an imminent execution proceeding by restricting the debtor’s access to the assets. Attachment is purely a conservatory measure.138

The attachment of a debtor’s assets presupposes that a matured money claim against the debtor exists, that the debtor has assets in Switzerland, and that sufficient grounds for attachment exist. The creditor must furnish prima facie evidence in support of his claim, of the debtor’s assets, and of the existence of ground for attachment (Art. 272 Federal Law on Debt Collection and Bankruptcy). He must make these elements plausible to the judge.

The judge at the place where the assets to be attached are located is competent for the granting of attachment.139 This judge decides in the so-called “summary procedure” (Art. 25 no. 2 lit. a Federal Law on Debt Collection and Bankruptcy) in which only limited instruments of proof are admitted. Furthermore, the judge decides based on the assertion of the creditor alone. The debtor has “no right to be heard” at first hand (see below, III. C).

“Making plausible” stands somewhere in between pure assertion and strict proof. More or less trustworthy assertions are not sufficient for “making something plausible.” Objective indications are necessary for a prima facie evidence.140 The arguments of the creditor must be conclusive and must appear true in all likelihood.141 An argument of a party is made plausible to the court if the judge—not being convinced fully of its truth—nevertheless takes it predominantly for true, although not all doubts have been eliminated.142

Grounds for Attachment

The law (Art. 271 para. 1 no. 1–5 Federal Law on Debt Collection and Bankruptcy) provides an exhaustive list of the circumstances justifying attachment.143 These are:

  • debtor has no fixed domicile;

  • debtor’s dishonest conduct, e.g., the debtor intends to evade his or her obligations or is about to escape, or tries to conceal his assets;

  • debtor’s presence in Switzerland is only temporary, e.g., the debtor is passing through the country or visiting a market or trade fair;

  • debtor has no domicile in Switzerland;

  • debtor insolvent; the creditor has a definitive or provisional certificate of loss against the debtor.

Attachment of Assets Belonging to Persons Resident Abroad

Debtor Resident Abroad

The assets in Switzerland of a debtor without domicile in Switzerland can be attached (Art. 271 no. 4 Federal Law on Debt Collection and Bankruptcy). Debtors without domicile in Switzerland are debtors whose place of residence or registered office is abroad. The debtor’s nationality is not decisive. The sole relevant factor is that the debtor does not have a place of debt enforcement in Switzerland.144

In international dealings, the concept of “place of residence” or “registered office” is defined according to Arts. 20 and 21 Federal Law on International Private Law.145 The domicile stated in a company’s articles of incorporation and bylaws is regarded as its registered office (Art. 21 para. 2 Federal Law on International Private Law).

Claim for Which Attachment Is Requested

The claim to be secured by attachment must be a claim for a monetary payment or for the rendering of monetary security (Art. 272 para. 1 no. 1 Federal Law on Debt Collection and Bankruptcy). It must not be backed by pledge (Art. 271 para. 1 introductory clause Federal Law on Debt Collection and Bankruptcy). As a rule, the claim must have fallen due (Art. 271 para. 1 introductory clause Federal Law on Debt Collection and Bankruptcy)146 and be enforceable.147

The existence of a claim and its legal basis must be made plausible by prima facie evidence to the judge.148 In the case of attachment of assets belonging to persons resident abroad, at least the debtor has his place of residence outside Switzerland, which means that the case is necessarily an international one. Consequently, the legal foundation of the claim can only be judged on the basis of the jurisdiction applicable to the claim relationship. Evidence must be produced to substantiate the existence of the alleged claim under the applicable jurisdiction. No detailed information on the foreign law is required149 in the attachment procedure.150

Subject of Attachment

Only realizable assets of the debtor may be the subject of an attachment order (Art. 272 para. 1 no. 3 Federal Law on Debt Collection and Bankruptcy), i.e., those assets that can be seized. Items belonging to third parties and, for example, “assets of a foreign state or of a foreign central bank serving sovereign purposes” cannot be seized.151

The creditor must substantiate by prima facie evidence first the existence of the assets and second the attached debtor’s ownership of these assets. This makes it difficult to effect a “fishing expedition” request for attachment, i.e., a request for seizure without concrete evidence that the debtor holds assets with third parties to be attached,152 and increases the protection of third parties against unwarranted involvement in another party’s attachment procedure.153 The seizure of assets made out to a third party (e.g. assets held for the debtor by a third-party on a fiduciary basis) is admissible provided the creditor can show that the third-party assets to be attached are actually the debtor’s property.154

With the attachment of bank accounts, the prima facie evidence requested for making the assertion plausible consists in naming the bank considered as third-party debtor and specifying its link with the debtor. Credit balances constitute a claim by the customer against his bank. Such credit balances in favor of the debtor will be subject to attachment at the bank (as third-party debtor) if the debtor does not have a fixed place of residence in Switzerland.155 Attachment is effected at the location of the bank branch if the claim is based on business dealings with that branch.156

If the individual items subject to attachment cannot be precisely specified, it is admissible to describe them in a generic way rather than naming them individually. However, the location of the items and the custodian must be specified.157

An attempt to attach a foreign central bank’s currency reserves held in Switzerland would then probably be regarded as an inadmissible “fishing expedition” request if the creditor requests an identical attachment for a large number of banks because he has no indication as to where the reserves are deposited.158 It is doubtful and left to the court’s discretion whether an identical application for the attachment of a foreign central bank’s assets described only in a generic way at all three of the big Swiss banks (CS, SBC, and UBS) would be admissible.

Special Preconditions for the Attachment of Assets Belonging to Persons Resident Abroad

The statutes specify four special preconditions for the attachment of assets belonging to persons resident abroad. One of them is restrictive (absence of other grounds for attachment—discussed under point (1), below), while the other three—sufficient connection to Switzerland, enforceable court decision, acknowledgement of indebtedness—are alternative conditions (discussed under points 2–4).159

1. Absence of Other Grounds for Attachment

Attachment of assets belonging to persons resident abroad is subsidiary to the other four grounds for attachment. If one of the other four grounds as stated in Art. 271 para. 1 Federal Law on Debt Collection and Bankruptcy is present (see above III. B. 1.), attachment against a debtor not resident in Switzerland can be instituted even if the special preconditions for attachment of assets belonging to persons resident abroad (sufficient connection to Switzerland, enforceable court decision, acknowledgment of indebtedness) are not met.160

2. Sufficient Connection Between the Claim and Switzerland

The draft legislation originally specified that the claim subject to an attachment order must have a “close connection” to Switzerland.161 The revised Federal Law on Debt Collection and Bankruptcy was supposed to prevent unjustified attachment orders that had nothing to do with Switzerland.162 Parliament, however, sought to assist creditors seeking attachment and changed the wording to the less restrictive “sufficient connection.”163 When the legislation was being drafted, repeated reference had been made to the requirement of a “domestic connection” developed by judicial practice in matters relating to the immunity of foreign states.164 Such a link is not justified, as the reason for desisting from measures of constraint is based on the sovereignty of foreign states and is thus not relevant to private relationships.165

The formulation “sufficient connection” is naturally very loose. Legal doctrine and court practice favor a lenient interpretation of the concept, i.e., they do not subject the prima facie evidence for the existence of “sufficient connection” to overly strict criteria.166 In the following situations, a claim would be seen as having a sufficiently close connection:

  • creditor resident in Switzerland, whereby the Swiss place of residence must be closely connected with the creditor’s claim and must not merely be established retrospectively as a way of facilitating enforcement;167

  • conclusion of a contract (after prior negotiations) in Switzerland;168

  • applicability of Swiss law to the claim, based on the agreed place of jurisdiction or the law applicable to claims arising from contracts;169

  • Switzerland as the place of performance for at least one of the principal obligations in the contract (particularly the place of payment);170 this covers the settlement of payments through banks in Switzerland, which open and confirm letters of credit, as well as the issuing of a guarantee by a Swiss bank;171

  • a tort has been committed or has taken effect in Switzerland;172

  • Switzerland as the designated place of jurisdiction;173

  • appointment of a court of arbitration based in Switzerland.174

The mere existence of assets in Switzerland, the claim being denominated in Swiss francs or the assets being insured by a Swiss company does not constitute a “sufficient connection.”175

3. Enforceable Court Decision

An “enforceable court decision” refers primarily to the decision of a court or arbitrator in Switzerland.

To satisfy the requirements for attachment, a foreign decision must be enforceable in Switzerland. An “enforceable court decision” is a ruling of an ordinary court of law or arbitrator abroad that is capable of having the effect of being executed in the context of exequatur proceedings. The preconditions for enforcement of foreign decisions are based on Art. 25–31 Federal Law on International Private Law. Any foreign decision against which no further appeal can be lodged shall be recognized in Switzerland if the judicial or administrative authorities of the state in which the decision was rendered had jurisdiction (Art. 25 Federal Law on International Private Law). Furthermore, recognition is excluded because of manifest incompatibility with Swiss law (Art. 27 Federal Law on International Private Law).

The attachment creditor must be able to substantiate the decision and those facts that, by reason of the law, have to be documented for the judge as part of the proceedings leading to a subsequent exequatur decision.176 The attachment creditor must therefore examine, on the basis of the applicable laws regarding the recognition and enforcement, which facts he must be able to prove fully in the procedures leading subsequently to enforcement, and that he must substantiate by prima facie evidence in the attachment procedures.177

4. Acknowledgement of Indebtedness

An acknowledgement of indebtedness is a document signed by the debtor in which he declares that he owes a particular sum to a specified person at a particular time (see Art. 82 para. 1 Federal Law on Debt Collection and Bankruptcy).178 The existence of an acknowledgement of indebtedness is judged according to Swiss law regardless of the law applicable to the claim.179

It is not clear as yet whether the existence of an acknowledgement of indebtedness needs to be proved absolutely to the judge competent for granting attachment or only needs to be made plausible to him by prima facie evidence. As a rule, legal doctrine favors merely a provisional investigation by the judge, as a decision on the quality of a document as an acknowledgement of indebtedness will be made later as part of the standard debt-collection proceedings.180 Consequently, it is sufficient here to make the existence of the acknowledgement of indebtedness plausible rather than providing documentary proof.


If the judge181 denies authorization for the attachment, the creditor may—depending on the applicable code of procedure—appeal against this decision.182

If the judge authorizes the attachment, he forwards the attachment order to the enforcement office at the debtor’s place of residence or at the third-party debtor’s place of business (Art. 274 Federal Law on Debt Collection and Bankruptcy). The enforcement office must not examine the attachment order materially but must simply execute it.183

The debtor has the option of objecting against the attachment order (Art. 278 Federal Law on Debt Collection and Bankruptcy). This objection gives the attachment debtor an initial opportunity to be heard184 and can thus be seen as a continuation of the attachment authorization procedure. Consequently, appeal does not have any effect of deferral (Art. 278 para. 4 Federal Law on Debt Collection and Bankruptcy).

An appeal must be lodged within ten days (Art. 278 para. 4 Federal Law on Debt Collection and Bankruptcy).

Any party whose legal position is affected by the attachment is entitled to lodge an objection, regardless of whether this legal position is based on property ownership or on a contractual relationship with the debtor; such parties thus include both the debtor and third-party custodians of the debtors such as banks.185 The creditor requesting attachment is not entitled to appeal.186

Admissible grounds for objection include any circumstance that casts doubt upon the legitimacy of the attachment—all of the preconditions for authorizing attachment can be challenged in the objection procedure.187 A sovereign purpose of the central bank assets can also be asserted.188

The judge confirms, modifies, or reverses his decision. The decision may be challenged by appeal to a higher cantonal authority. New facts may be brought to the attention of this higher authority (Art. 278 para. 3 Federal Law on Debt Collection and Bankruptcy).

The only way to appeal against the decision of this higher authority is to lodge a constitutional complaint with the Federal Court on the grounds that the decision of the cantonal authority was so manifestly wrong as to be arbitrary and therefore in violation of the principle of equality before the law (as laid down in Art. 4 Swiss Constitution).189

In the event of an inadmissible attachment of the assets of a foreign state, the state in question needs not go through the cantonal courts but can appeal directly to the Federal Court by lodging a constitutional complaint on the grounds of an arbitrary decision (Art. 86 para. 2 Federal Law on the Organisation of the Federal Juridical Procedures).190 The availability of this option to a foreign central bank in respect of assets serving sovereign purposes is—to the best of my knowledge—without prejudice.

Within ten days of the granting of the attachment, the creditor must pursue his claim by initiating legal proceedings against the debtor to validate the attachment (Art. 279 Federal Law on Debt Collection and Bankruptcy). The pursuit must be made either by debt collection proceedings or by filing a lawsuit in validation of the attachment, both at the Swiss place of attachment (Art. 4 Federal Law on International Private Law).


Attachment is served in Switzerland on the basis of unilateral arguments of the creditor. An attachment on assets of a foreign central bank that are deposited with banks in Switzerland, including subsidiaries and branches of foreign banks in Switzerland, is possible only if the creditor succeeds in convincing the attachment judge that the currency reserves do not serve a sovereign purpose (Art. 92 no. 11 Federal Law on Debt Collection and Bankruptcy). Based on past rulings of the Federal Court as outlined above, this must be regarded as possible.

In my view, the currency reserves of foreign central banks held in Switzerland solely as currency reserves, i.e., for regulating money supply and influencing exchange rates, do not have a sufficient connection to Switzerland. The only connection is that the assets are deposited in Switzerland.

Attachment in accordance with Art. 271 para. 1 no. 4 Federal Law on Debt Collection and Bankruptcy is possible, however, if the assets of the foreign central banks are used at a Swiss-domiciled bank for payments in connection with the creditor’s claim. The processing of payments through banks in Switzerland will in itself meet the requirement of “sufficient connection” stipulated by the law. Depending on how the foreign economy’s payment transactions with other countries are organized, this may give rise to difficult problems of subsuming such payments under Art. 271 Federal Law on Debt Collection and Bankruptcy. If payments to foreign countries are handled in a centralized fashion via the central bank, a sufficient connection between the claim and Switzerland may well exist in many cases. If payments to foreign countries are handled by commercial banks, it will probably seldom be the case that foreign central bank assets in Switzerland are linked to the enforced claim.


Zuberbühler D., Der Wandel des Aufsichtsrechts zur Risikoerfassung, in Aktuelle Rechts- probleme des Finanz- und Börsenplatzes Schweiz 6/1997, Berne 1998, pp. 89, 115 ff.


Committee on Banking Regulations and Supervisory Practices, International Convergence of Capital Measurement and Capital Standards, July 1988.


See Council directives 89/299/EEC, April 17,1989, on credit institutions’ own funds, 89/647/EEC, December 18, 1989, on solvency ratio for credit institutions, and 93/6/EEC, March 15, 1993, on the capital adequacy of investment firms and credit institutions.


Art. 12–13 Swiss Banking Ordinance; cf. Zuberbühler D., Revision des Bankengesetzes vom 18. März 1994 und der Bankenverordnung, in Aktuelle Rechtsprobleme des Finanzund Börsenplatzes Schweiz 3/1994, Berne 1995, pp. 31 f; Swiss Federal Banking Commission, Annual Report 1997, pp. 33 ff.; Swiss Federal Banking Commission, Bulletin 27/1995, Die neuen Eigenmittelvorschriften/Nouvelles dispositions en matière de fonds propres; Swiss Federal Banking Commission, Bulletin 34/1998, Die neuen Eigenmittelvorschriften für Markt-risiken/Nouvelles dispositions en matière de fonds propres pour les risques du marché.


See NZZ-Fokus No. 1, Shareholder-Value, Zurich 1996 passim.


JFT 105 III 120; Degrandi B., Rechtsprobleme des Lombardkredites, in: Swiss Review of Business Law 1990, pp. 1 ff., p. 4; Giovanoli M., Switzerland, in: European Banking Law, The Banker Customer Relationship, London 1993, pp. 183 ff., p. 217; Oftinger K./Bär R., Das Fahrnispfand, 3rd edition, Zurich 1981, volume IV. 2.c Zürcher Kommentar zum Schweizerischen Zivilgesetzbuch, p. 414; Thalmann Ch., Das Pfand- und Verrechnungsrecht nach den Allgemeinen Geschäftsbedingungen der Banken, in: Swiss Review of Business Law 1989, p. 136 ff., p. 138.


See Brunner Ch., Wertrechte - nicht verurkundete Rechte mit gleicher Funktion wie Wertpapiere, Zurich 1996, pp. 110 ff. regarding the Swiss “Federal Law on the Debt Register of the Confederation” for debt register claims and on money market book-entry securities. For Germany, see Canaris C.W., Grosskommentar Handelsgesetzbuch, Bankvertragsrecht 3rd volume, 3rd part, Berlin 1981, pp. 1037 ff.


Degrandi (FN 6), pp. 3 ff.


Exceptions to this principle are the public registers for chattels (see Art. 885 Civil Code), aircraft and ships.


See for Germany: Canaris (FN 7), p. 1029 f.; for Switzerland: Oftinger/Bär (FN 6), pp. 162–186.


Degrandi (FN 6), p. 4; Thalmann (FN 6), pp. 136 ff.


More precisely, co-ownership shares in these securities; see below after FN 60.


Giovanoli (FN 6), p. 220; Oftinger/Bär (FN 6), p. 520 f. It is disputed among legal writers whether the notification to the registrar, e.g., SEGA, is an indispensable requirement for the pledge.


See Bauer Th., Commentary on Art. 884 - 894 Swiss Civil Code, in Kommentar zum Schweizerischen Privatrecht, Schweizerisches Zivilgesetzbuch II, Art. 457–977 ZGB, Basel 1998, pp. 2011 ff., pp. 2044 ff.; Thalmann (FN 6), pp. 139, 141 f.


JFT 51 II 281 f; Oftinger/Bär (FN 6), pp. 134 f.


Art. 17 Federal Banking Act; see Bodmer D./Kleiner B./Lutz B., Kommentar zum Bankengesetz, Zurich 1997, N. 2 on Art. 17 Banking Act.


Art. 105 para. 1 Federal Law on International Private Law.


Heini A., Kommentar zu Art. 97 - 108 IPRG (Federal Law on International Private Law), in: IPRG-Kommentar, Zurich 1993, pp. 791 ff., p. 836.


Art. 105 para. 2 Federal Law on International Private Law, see Bauer (FN 14), p. 2065; Heini (FN 18), p. 837.


Art. 105 para. 3 Federal Law on International Private Law, see Heini (FN 18), p. 838.


Arts. 41 and 151–158 Federal Law on Debt Collection and Bankruptcy.


See Amonn K./Gasser D., Grundriss des Schuldbetreibungs- und Konkursrechts, 6th edition, Berne 1997, p. 261 ff.


Art. 156 in connection with Art. 125 ff. and 130 Federal Law on Debt Collection and Bankruptcy.


JFT 116 III 23, 106 Ib 91; Bauer (FN 14), pp. 2101 ff.; Giovanoli (FN 6), p. 217; Oftinger/Bär (FN 6), pp. 298 ff.


Art. 8 (abridged) of the General Conditions of Credit Suisse; see Degrandi (FN 6), p. 8; Oftinger/Bär (FN 6), pp. 298 ff.; Thalmann (FN 6), p. 138.


Bauer (FN 14), p. 2102 f. and p. 2105.


Bauer (FN 14), p. 2120 ff.; Oftinger/Bär (FN 6), pp. 303, 325.


Amonn/Gasser (FN 22), p. 263; Bauer (FN 14), p. 2106 f.; Degrandi (FN 6), p. 9.


JFT 44 III 49.


Art. 198, Art. 199 para. 1 Federal Law on Debt Collection and Bankruptcy.


Art. 206 Federal Law on Debt Collection and Bankruptcy.


Art. 219, para. 1 Federal Law on Debt Collection and Bankruptcy; Amonn/Gasser (FN 22), pp. 342 ff.


JFT 104 III 24.


Art. 206 para. 1 second sentence Federal Law on Debt Collection and Bankruptcy; Amonn/Gasser (FN 22), p. 332.


JFT 93 III 52; Art. 110 section 1 Code of Obligations.


Art. 287 para. 1, section 1 Federal Law on Debt Collection and Bankruptcy; Amonn/Gasser (FN 22), pp. 430 ff.


Art. 290 Federal Law on Debt Collection and Bankruptcy.


See Heinrich G., Rechtsvergleichende Aspekte der Verrechnung als Kreditsicherheit, in: Swiss Review of Business Law 1990, pp. 266 ff., pp. 270 f.


See Art. 120–125 Code of Obligations; Guhl Th./Merz H./Koller A., Das Schweizerische Obligationenrecht, 8th edition, Zurich 1991, pp. 275 ff.; Heinrich (FN 38), pp. 271 ff.


As an exception, a claim forfeited by the statute of limitations may be set off if at the time when it could have been set off against the other claim, it was not yet forfeited under the statute of limitations (Art. 120 para. 3 Code of Obligations).


Art. 124 para. 1 Code of Obligations.


Art. 125 para. 1 in connection with Art. 481 Code of Obligations; see Thalmann (FN 6), p. 140.


Heinrich (FN 38), p. 270 f.; Thalmann (FN 6) pp. 140 f.; von Tuhr A./Escher A., Allgemeiner Teil des schweizerischen Obligationenrechts, 3rd edition, Vol. II, Zurich 1974, p. 208 f.


Art. 8 (abridged) of the General Conditions of Credit Suisse.


Thalmann (FN 6), p. 140.


JFT 104 II 192, 100 III 83; Aepli V., Kommentar zu Art. 114–126 Obligationenrecht, volume V.l.h, Zürcher Kommentar zum Schweizerischen Zivilgesetzbuch, 3rd edition Zurich 1991, p. 54 f.; Kleiner B., Bankkonto-Giro-und Kontokorrentvertrag, in Innominatverträge, Festgabe zum 60. Geburtstag von W.R. Schluep, Zurich 1988, pp. 273 ff., 275 f.


Acknowledgement of the balance implies novation (Art. 117 para. 2 Code of Obligations). A balance is regarded as acknowledged if it has been submitted to both parties and been tacitly or explicitly approved. In practice, the nonbank customer’s balance is acknowledged on receipt of a statement of account. According to the general conditions of the Swiss banks, statements of accounts are deemed to have been approved if the customer raises no objections within one month. After the one-month period has elapsed, novation occurs. Novation is not an abstract legal transaction. The current account debtor still has the possibility of providing evidence to the effect that the acknowledged debt had never actually existed. The party concerned might contest erroneous entries. The acknowledgment of the balance, however, implies that the respective party will refrain from asserting deficiencies of intention previously known, as also from raising contentious and doubtful objections unless this right remains explicitly reserved (JFT 100 III 85 f., 104 II 196).


Art. 148 para. 3 in connection with Art. 116 Federal Law on International Private Law; see Aepli (FN 46), p. 170.


Art. 117 para. 3 let. c. Federal Law on International Private Law.


Art. 148 para. 2 Federal Law on International Private Law.


See Aepli (FN 46), pp. 166 ff.; Heinrich (FN 38), p. 282.


von Tuhr/Escher (FN 43), p. 207 f.


Aepli (FN 46), p. 298 f.


Aepli (FN46), pp. 152 ff.


Art. 213 para. 1 Code of Obligations; Art. 213 para. 1 Federal Law on Debt Collection and Bankruptcy.


Aepli (FN 46), N. 7 on Art. 123 Code of Obligations; Heinrich (FN 38), pp. 278 f.


Art. 213 para. 2 Federal Law on Debt Collection and Bankruptcy.


Art. 214 Federal Law on Debt Collection and Bankruptcy.


Guhl/Merz/Koller (FN 39), p. 275.


Regarding France, see Brunner (FN 7), pp. 89 ff. and Zobl D./Lambert C., Zur Entmaterialisierung der Wertpapiere, in Swiss Review of Business Law 1991, pp. 117 ff., pp. 122 ff.; regarding the USA, see Brunner (FN 7), pp. 99 ff.


Regarding Germany, see Canaris (FN 7), pp. 1019 ff; regarding Switzerland, see Brunner (FN 7), pp. 30 f., Meier-Hayoz A., Abschied vom Wertpapier, in Zeitschrift des Bernischen Juristenvereins 1986, pp. 385 ff., p. 396.


Brunner (FN 7), pp. 32 ff., p. 211; Canaris (FN 7), p. 1023, pp. 1026 f., p. 1031; Kleiner B., Zäher Abschied vom Wertpapier im Effektenbereich, in Swiss Review of Business Law 1995, pp. 290 ff., p. 293; Zobl/Lambert (FN 60), p. 132.


See European Monetary Institute, The Single Monetary Policy in Stage Three, Specification of the Operational Framework, pp. 37, 93.


See European Monetary Institute (FN 63), p. 90.


European Monetary Institute (FN 63), p. 40.


See Europäisches Währungsinstitut, Die einheitliche Geldpolitik in Stufe 3, Festlegung des Handlungsrahmens, Frankfurt September 1997, pp. 41–42.


Arts. 646–651 Civil Code.


Meier-Hayoz (FN 61), p. 392 f.


Brunner (FN 7), pp. 20 ff.; Meier-Hayoz (FN 61), p.393; Zobl/Lambert (FN 60), p. 126.


Art. 2 let. a Stock Exchange Act.


Brunner (FN 7), pp. 213 ff.


Brunner (FN 7), pp. 218 ff.; still hesitating: Schlussbericht der Groupe de réflexion “Gesellschaftsrecht” of September 24, 1993, p. 79.


Regarding the “Record-based Approach” of the “lex situs” issue, see Benjamin J., Immobilised Securities: Where are they?, in Butterworths Journal of International Banking and Financial Law 1998, pp. 85 ff., and the new legislation in Luxembourg, in particular Article 1 of the “Règlement grand-ducal du 7 juin 1996 portant modification du règlement grand-ducal modifié du 17 février 1971 concernant la circulation des valeurs mobilières”; regarding the bankruptcy of the central depository note that to some extent vindicatio is already possible for claims not incorporated in securities in case of a bank’s bankruptcy, see Brunner (FN 7), pp. 272 ff. on Art. 16 and 37b Banking Act.


For further references see Giovanoli M., Legal Issues Regarding Payment and Netting Systems, in Current Legal Issues Affecting Central Banks, Vol. 4, Washington 1997, pp. 517 ff.; Hess M., Netting in Switzerland, in Butterworths Journal of International Banking and Financial Law 1995, pp. 310 ff.; Hess M./Wyss A., Die rechtlichen Grundlagen des Netting, unter besonderer Berücksichtigung des Close-out Netting (Art. 211 Abs. 2bis SchKG), in: Allgemeine Juristische Praxis 1997, pp. 1219 ff.


In Switzerland, this is reflected in recent legislation: Art. 211 Abs. 2bis Federal Law on Debt Collection and Bankruptcy, Art. 12f Banking Ordinance; see Bulletin 27/1995 of the Swiss Federal Banking Commission (FN 4), pp. 55 ff., Hess/Wyss (FN 74), pp. 1229 f.; for references for other jurisdictions see Giovanoli (FN 74), pp. 532 ff.


Art. 12a No. 5.3 Banking Ordinance.


Art. 12a section 1.4 Banking Ordinance.


Art. 24 para. 2 let. i Banking Ordinance; see Bodmer/Kleiner/Lutz (FN 16), N. 88 on Art. 16 Banking Act.


See Revisionshandbuch der Schweiz 1992, vol. I, pp. 88; Swiss Federal Banking Commission, Die neuen Rechnungslegungsvorschriften/Les nouvelles dispositions régissant l’établissement des comptes, Bulletin 26/1995, Directives of December 14, 1994, p. 78: offsetting is permitted “when claims and liabilities arising from equivalent transactions exist with the same counterparty, with the same or an earlier due date in the case of claims and in the same currency, provided this cannot ever result in any counterparty risk either on the balance sheet date or prior to the time the netted transactions fall due.”


Bodmer/Kleiner/Lutz (FN 16), N. 90 on Art. 16 Banking Act.


See Art. 12f Banking Ordinance and after FN 73 above.


General accounting rules in Switzerland allow the compensation of claims denominated in different but freely convertible currencies unless one of the claims is based on an agreement that stipulates the literal performance in a defined currency (so called “effective clause”); see Revisonshandbuch (FN 79), p. 132.


See Basle Committee on Banking Supervision, Consultative paper on on-balance-sheet netting, April 7, 1998.


See British Bankers Association, Amendment to the Basle capital accord on weighting of investment firms and consultation on on-balance-sheet netting, April 9, 1998.


Amonn/Gasser (FN 22), p. 172.


The new provision of Art. 92 no. 11 Federal Law on Debt Collection and Bankruptcy is anchored in the Federal Court’s well established practice. The practice adopted by the courts and authorities with regard to the attachment against foreign states’ assets in Switzerland was last set out in a circular from the Federal Judiciary and Police Department dated July 8, 1986; see Verwaltungspraxis der Bundesbehörden (VPB) 1986 II, p. 275 ff.


JFT 110 II 259; Memorandum of the Federal Ministry of Foreign Affairs dated August 28, 1996, published in Swiss Review of International and European Law 1997, pp. 650 ff., 651.


Egli J.F., L’immunité du juridiction et de l’exécution des Etats étrangers et des leurs agents dans la jurisprudence du Tribunal fédéral, in Festschrift 100 Jahre SchKG, Zürich 1989, S. 201 ff., p. 206, JFT 113 Ia 176, 110 II 259 f.


Brownlie Ian, Principles of Public International Law, 4th edition Oxford 1990, p. 327, 332 ff.; Müller J.P./Wildhaber L., Praxis des Völkerrechts, 2. Auflage Bern 1982, p. 298; Verdross A./Simma B., Universelles Völkerrecht, 3. Auflage 1984, p. 763 f.; JFT 106 Ia 147.


See ruling of the Federal Court on January 24, 1994, published in Swiss Review of International and European Law 1995, p. 593 ff.


The Federal Court regards the European Convention on State Immunity as the manifestation of recent trends in international law (Egli (FN 88), p. 205; JFT 110 Ia 45, 104 Ia 372) while admitting that two aspects of the system put forward in the Convention diverge from Swiss jurisdiction (JFT 112 Ia 150; 111 Ia 156); Art. 23 of the Convention provides for absolute reciprocal immunity against execution proceedings between the signatories; Art. 20 of the Convention stipulates a far-reaching mutual obligation to recognize and enforce court rulings in the other signatories’ countries.


Vischer F., Bemerkungen zur Immunität des Ausländischen Staates anhand des Bundesgerichtsentscheides 110 II 255, in Schweizerisches Jahrbuch für Internationales Recht 1986, S. 236 ff., p. 245.


JFT 120 II 409; 113 Ia 175; 111 Ia 58; 104 Ia 374; 86 I 29.


JFT 110 II 260; 86 I 29.


JFT 56 I 243.


JFT 82 I 91, 44 I 49.


Federal Court ruling of June 22, 1966, consideration 7, in Schweizerisches Jahrbuch für Internationales Recht 1975, p. 224.


Cf. Brownlie (FN 89), p. 332 ff., Vischer (FN 92), p. 243 f. and the Federal Court ruling of January 24, 1994, published in Swiss Review of International and European Law 1995, p. 594 f. and JFT 111 Ia 58 f.; dissenting opinion: Gramlich would rely solely on the law of the country affected; see Gramlich L., Staatliche Immunität für Zentralbanken?, in Rabels Zeitschrift für ausländisches und internationales Privatrecht, 45 (1981), pp. 545 ff., p. 586.


JFT 111 Ia 65 f.; 110 Ia 45 f.; Egli (FN 88), p. 212; Verdross/Simma (FN 89), p. 772.


JFT 110 Ia 46; compare JFT 120 II 321 ff. for the status of Cantonal banks competing freely with commercial banks in Switzerland.


JFT 106 I 148; Egli (FN 88), p. 209.


Vischer (FN 92), p. 248.


JFT 104 Ia 370; 56 I 251.


JFT 113 Ia 175; 104 Ia 370; 56 I 251.


Egli (FN 88), p. 208.


JFT 120 II 407 and 411.


JFT 86 I 30, Egli (FN 88), p. 209.


JFT 86 I 30.


JFT 56 I 251 f.


JFT 106 Ia 150; Botschaft des Bundesrates vom 8. Mai 1991 über die Änderung des Bundesgesetzes über Schuldbetreibung und Konkurs (Federal Law on Debt Collection and Bankruptcy), in Bundesblatt 1991 III, pp. 1 ff., p. 163.


JFT 106 Ia 150.


Federal Court ruling of January 24, 1994, published in Swiss Review of International and European Law 1995, p. 595, consideration 5; JFT 112 Ia 151; 108 III 109 f.; Brownlie (FN 89), p. 331, Verdross/Simma (FN 89), p. 771.


Note of the Directorate for Public International Law of February 28, 1991, Swiss Review of International and European Law 1992, p. 271; Vischer (FN 92), p. 245 f.


Note of the Directorate for Public International Law of February 28, 1991, Swiss Review of International and European Law 1992, p. 271; Brownlie (FN 89), p. 344.


JFT 111 Ia 65.


JFT 86 I 32; Egli (FN 88), p. 211; Note of the Directorate for Public International Law of February 28, 1991, Swiss Review of International and European Law 1992, p. 271.


Federal Court ruling of January 24, 1994, published in Swiss Review of International and European Law 1995, p. 594 f., consideration 4/5.


NZZ of August 13, 1997, p. 21.


JFT 113Ib 163.


JFT 111 Ia 64 ff.


JFT 110 Ia 43 ff.


JFT 104 Ia 373.


See text at FN 98 above.


Art. 92 no. 11 Federal Law on Debt Collection and Bankruptcy.


See Bericht der Expertengruppe “Reform der Währungsverfassung,” Der neue Geldund Währungsartikel in der Bundesverfassung, Berne, October 24, 1997.


See Botschaft des Bundesrates vom 17. März 1997 über die Revision des Nationalbankgesetzes, in: Bundesblatt 1997 II, S. 977 ff.


Swiss National Bank, Annual Report 1997, p. 34.


Botschaft NBG (FN 126), p. 998.


Botschaft NBG (FN 126), p. 998; Schürmann L., Kommentar und Textausgabe Nationalbankgesetz und Ausführungseriasse, Bern 1980, N. 2 and N. 7 on Art. 19 National Bank Act.


Cf. Zurlinden M., Devisenmarktinterventionen der Schweizerischen Nationalbank 1986–1994, in: Quartalsheft SNB No. 2/1996, p. 163 ff.


Schürmann (FN 129), Art. 14 National Bank Act, N. 43.


Schürmann (FN 129), Art. 14 National Bank Act, N. 43.


Klauser P., Geld und Gold - Zur Reform der schweizerischen Währungsverfassung, in: Aktuelle Rechtsprobleme des Finanz- und Börsenplatzes Schweiz, Bern 1997, pp. 15 ff., p. 31; Lusser M., Auf dem Weg zu einer neuen schweizerischen Geldverfassung - Preisstabilität und Unabhängigkeit: Die Anker der Notenbank, in Quartalsheft SNB 2/1996, p. 155 ff., 160.


Bericht der Expertengruppe (FN 125), p. 48; Botschaft NBG (FN 126), p. 980; Swiss National Bank, Annual Report 1997, p. 36; Swiss National Bank, [German] Annual Report 1991, pp. 64 ff.


Botschaft NBG (FN 126), p. 981.


Egli (FN 88), p. 212 f., referring to an unpublished ruling of May 4, 1983.


It is important, when addressing a Swiss court, to be able to substantiate the claim that a sovereign purpose is served. The Libyan central bank failed because it was unable to document this claim; see JFT 111 Ia 66.


Gilliéron P.R., Le séquestre dans la LP révisée, in Blätter für Schuldbetreibung und Konkurs (1995), S. 121 ff., p. 121 f.


Art. 272 Abs. 1 Federal Law on Debt Collection and Bankruptcy.


Meier-Dieterle, F.C., Der “Ausländerarrest” im revidierten SchKG - eine Checkliste, in Allgemeine Juristische Praxis (1996), pp. 1416 ff., p. 1425; Ottoman R., Der Arrest, in Aktuelle Fragen des Schuldbetreibungs- und Konkursrechts nach revidiertem Recht, herausgegeben von I. Meier, Basel (1996), pp. 55 ff., p. 69.


Stoffel W.A., Das neue Arrestrecht in: Allgemeine Juristische Praxis (1996), pp. 1401 ff., p. 1409.


Vogel Oscar, Grundriss des Zivilprozessrechts, 4th edition, Berne 1995, 10th chapter, N. 26.


Specialized laws such as those on taxation and customs duties enumerate other grounds for attachment.


Amonn/Gasser (FN 22), p. 409; Meier-Dieterle (FN 140), p.1421; Ottomann (FN 140), p. 64 f.


Art. 30a Federal Law on Debt Collection and Bankruptcy; Stoffel (FN 141), p. 1405.


An exception to this “due payment” rule is set out in Art. 271 para. 2 Federal Law on Debt Collection and Bankruptcy for attachment in the event of absence of a fixed place of residence (Art. 271 para. 1 no. 1 Federal Law on Debt Collection and Bankruptcy) and of dishonest conduct by the debtor (Art. 271 para. 1 no. 2 Federal Law on Debt Collection and Bankruptcy).


See Judgment of the Higher Court of the Canton of Zurich of September 14, 1994, published in ZR 95 (1996), No. 87.


See III. A. 1. above.


Judgment of the Higher Court of the Canton of Zurich of February 23, 1995, cited in Meier- Dietcrle (FN 140), p. 1419, FN 32.


In contrast to ordinary civil proceedings on pecuniary disputes, in which the court may impose the burden of proof to the parties to supply evidence of the contents of the governing foreign law (Art. 16 para. 1 Federal Law on International Private Law).


Art. 92 no. 11 by contrast with Art. 275 Federal Law on Debt Collection and Bankruptcy; see II. F. above.


Gasser D., Das Abwehrdispositiv der Arrestbetroffenen nach revidiertem SchKG, in ZBJV 130 (1994), pp. 582 ff., p. 594 f.; Meier-Dieterle (FN 140), p. 1420; Stoffel (FN 141), p. 1408.


Gasser (FN 152), p. 594 f.; Ottomann (FN 140), p. 70, Stoffel (FN 141), p. 1408.


JFT 107 III 33 ff. Kleiner B., Ausländerarrest-Kompromiss zwischen Schuldnerverfolgung und Schädigung der eigenen Wirtschaft, in Festschrift 100 Jahre SchKG, Zürich 1989, S. 371 ff., p. 375 ff.; Ottomann (FN 140), p. 70; Stoffel (FN 141), p. 1408.


JFT 107 III 149, 112 III 95 ff.; Kroll M.J., Arrest von Wertrechten in Sammelverwahrung, in Swiss Review of Business Law 1994, p. 244.


JFT 107 III 150 f.


JFT 107 III 38; Amonn/Gasser (FN 22), p. 412 f.; Ottomann (FN 140), p. 69; Stoffel (FN 141), p. 1408.


Stoffel (FN 141), p. 1408.


Gani L., Le “lien suffisant avec la Suisse” et autres conditions du séquestre lorsque le domicile du débiteur est à l’étranger (Art. 271 al. ler ch. 4n LP) in Swiss Law Journal 92 (1996), S. 227 ff., p. 227.


Amonn/Gasser (FN 22), p. 409; Meier-Dieterle (FN 140), p. 1420; Ottomann (FN 140), p. 65.


Botschaft SchKG (FN 110), p. 162 f.; Gani (FN 159), p. 22; Gilliéron (FN 138), p. 122 ff.; Ottomann (FN 140), p. 66.


Gasser (FN 152), p. 591 f.; Gilliéron (FN 138), p. 122 ff.; Kleiner, p. 373.


Gani (FN 159), p. 22; Gilliéron (FN 138), p. 125; Ottomann (FN 140), p. 66.


As discussed above; cf. Botschaft SchKG (FN 110), p. 163; Gilliéron (FN 138), p. 128; Kleiner, p. 373.


Gani (FN 159), p. 230 f.; Stoffel (FN 141), p. 1407.


JFT 123 III 496, Gani (FN 159), p. 229/231; Gilliéron (FN 138), p. 128; Meier-Dieterle (FN 140), p. 1421; Ottomann (FN 140), p. 67; Stoffel (FN 141), p. 1407.


Amonn/Gasser (FN 22), p. 410; Gani (FN 159), p. 230; Meier-Dieterle (FN 140), p. 1422; Ottomann (FN 140), p. 66 f.; Staehelin D., Die internationale Zuständigkeit der Schweiz im Sehuldbetreibungs- und Konkursrecht, in Allgemeine Juristische Praxis (1995), S. 259 ff., p. 269; Stoffel (FN 141), p. 1407.


Amonn/Gasser (FN 22), p. 410; Gani (FN 159), p. 230; Meier-Dieterle (FN 140), p. 1422; Ottomann (FN 140), p. 66 f.; Stoffel (FN 141), p. 1407.


Gani (FN 159), p. 230; Meier-Dieterle (FN 140), p. 1422; Stoffel (FN 141), p. 1407.


JFT 123 III 494 ff.; Amonn/Gasser (FN 22), p. 410; Gani (FN 159), p. 230; Meier-Dieterle (FN 140), p. 1422; Ottomann (FN 140), p. 66 f.; Stoffel (FN 141), p. 1407.


Gani (FN 159), p. 231 f.; Meier-Dieterle (FN 140), p. 1422; Stoffel (FN 141), p. 1407.


Amonn/Gasser (FN 22), p. 410; Gani (FN 159), p. 231; Meier-Dieterle (FN 140), p. 1422; Stoffel (FN 141), p. 1407.


Amonn/Gasser (FN 22), p. 410; Gani (FN 159), p. 231; Meier-Dieterle (FN 140), p. 1422; Ottomann (FN 140), p. 67; Stoffel (FN 141), p. 1407.


Amonn/Gasser (FN 22), p. 410; Gani (FN 159), p. 231; Meier-Dieterle (FN 140), p. 1422; Ottomann (FN 140), p. 67; Stoffel (FN 141), p. 1407.


Gani (FN 159), p. 230; Meier-Dieterle (FN 140), p. 1422.


Meier-Dieterle (FN 140), p. 1422 f.; Stoffel (FN 141), p. 1406; dissenting opinion: Gani (FN 159), p. 228, who merely requires evidence of the absence of ordinary right of appeal in the country of origin.


Meier-Dieterle (FN 140), p. 1423 f.


Amonn/Gasser (FN 22), p. 128 f.; Meier-Dieterle (FN 140), p. 1424; Ottomann (FN 140), p. 66; Stoffel (FN 141), p. 1406.


Ottomann (FN 140), p. 66.


Gani (FN 159), p. 228 ff.; Meier-Dieterle (FN 140), p. 1424; Ottomann (FN 140), p. 66; Stoffel (FN 141), p. 1406.


In the Canton of Zurich this is the sole judge in summary procedures.


In the Canton of Zurich this is the nullity appeal to the Cantonal Court of Appeal.


Amonn/Gasser (FN 22), p. 416.


Botschaft SchKG (FN 110), p. 171.


Gasser (FN 152), p. 604 f.


Gasser (FN 152), p. 605.


Botschaft SchKG (FN 110), p. 173; Meier-Dieterle (FN 140), p. 1426.


See II. F. above. Cf. Amonn/Gasser (FN 22), P. 420; Gasser (FN 152), p. 610.


Gilliéron (FN 138), p. 137 f.; Ottomann (FN 140), p. 76.


Gilliéron (FN 138), p. 138; Spühler K., Die Praxis der staatsrechtlichen Beschwerde, Bern 1994, p. 157.