Rs 961.015.2 Order From The Federal Supervisory Authority Of Financial Markets In October 17, 2012, The Bankruptcy Of Insurance Undertakings (Ordinance Of The Finma On The Bankruptcy Of Insurance, Ofa-Finma)

Original Language Title: RS 961.015.2 Ordonnance de l’Autorité fédérale de surveillance des marchés financiers du 17 octobre 2012 sur la faillite des entreprises d’assurance (Ordonnance de la FINMA sur la faillite des assurances, OFA-FINMA)

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$20 per month, or Get a Day Pass for only USD$4.99.
961.015.2 order of the federal authority for supervision of the financial markets on the bankruptcy of insurance undertakings (Ordinance of the FINMA on the bankruptcy of insurance, OFA-FINMA) of October 17, 2012 (status 1 January 2013) the federal supervisory authority of financial markets (FINMA), view the art. 54, al. 3, of the Act of December 17, 2004 on the monitoring of insurance (LSA), stop: Section 1 provisions general art. 1 purpose this order embodies the bankruptcy proceedings according to art. 53 to 59 LSA.

Art. 2 scope this order applies to all physical or legal persons performing activities subject to monitoring as an insurance undertaking according to the LSA.

Art. 3 universality when a bankruptcy proceeding is opened, it extends to all possible assets belonging to the business of insurance at this time, they are in Switzerland or abroad.
All the Swiss creditors and foreign to the business of insurance and its foreign branches are equally and with the same privileges, allowed to participate in the procedure of bankruptcy opened in Switzerland.
Are considered as being a Swiss branch of a foreign insurance company assets all assets in Switzerland and abroad by persons who acted for this branch.

Art. 4 publications and communications publications are carried out in the official Swiss trade and worksheet on the FINMA website.
The communications are sent directly to creditors whose name and address are known. FINMA can require the creditors whose headquarters or domicile is located abroad to designate an agent to receive communications in Switzerland if it helps to simplify the procedure. She may give up direct communication in an emergency or to simplify the procedure.
The Swiss publication in the official journal of commerce authoritative for the calculation of the time limits and the legal consequences associated with the publication.

Art. 5 consultation of the parts anyone who makes it likely that he is directly affected in its own pecuniary interests by bankruptcy can consult the documents concerning this bankruptcy.
The parts can be limited at certain stages of the procedure or be restricted or denied due to overriding contrary interests.
Anyone who views parts cannot use the information obtained to preserve its own direct pecuniary interests.
The consultation of the parts may be subject to a statement which indicates that the consulted information is only used to maintain the own direct pecuniary interests of the signatory. It can be accompanied by the threat of penalties to the art. 48 of the law of June 22, 2007 on the monitoring of financial markets and 292 of the penal code.
The liquidator of bankruptcy and after the closure of bankruptcy proceedings, FINMA decisions relating to consultation of the parts.

RS 956.1 RS 311.0 art. 6 denunciation to the FINMA anyone is affected in its interests by the decision, act or omission of a person to whom the FINMA has entrusted tasks under this order can report the facts to the FINMA.
Decisions made by these people are not the decisions within the meaning of the Federal Act of 20 December 1968 on administrative procedure (PA) and the informant has no standing as a party within the meaning of the Act.
FINMA appreciate the facts that are the subject of denunciation, shall take the measures required and makes a decision if necessary.

RS 172.021 art. 7 use a liquidator of bankruptcy the FINMA appoints a liquidator of bankruptcy by decision if she does not itself assume corresponding tasks.
If she appoints a liquidator of bankruptcy, it ensures that the person is able, both in terms of time on a technical level, to exercise the mandate in a rigorous, efficient and effective and that no conflict of interest to oppose the mandate.
It sets the content of the mandate, particularly with respect to costs, reporting, and control of the liquidator of bankruptcy.

Art. 8 tasks and powers of the liquidator of bankruptcy bankruptcy liquidator led the procedure. It shall in particular: a. establish the technical and administrative conditions required for the proper conduct of the procedure; b. ensure conservation and the realisation of the assets; c. ensure the management of the company to the extent necessary for bankruptcy proceedings; d. represent the bankrupt before the courts and other authorities; e. establish claims guaranteed by the fortune linked under contracts of insurance; f. ensure the payment of the proceeds of fortune linked according to art. 54A LSA.

Art. 9 for bankruptcy for bankruptcy is at the headquarters of the business of insurance or the branch of a company of foreign insurance in Switzerland.
If a foreign insurance company has several branches in Switzerland, there is only one single for the bankruptcy. FINMA refers to that forum.
For individuals, the bankruptcy Forum is instead of commercial exploitation at the time of the opening of bankruptcy proceedings.

Art. 10 claims and commitments recorded in the books a receivable or a commitment of the insurance undertaking are considered as validly registered if the books of the insurance undertaking are required in accordance with the requirements, and if the liquidator of bankruptcy can actually take knowledge of the existence and the amount of the claim or the commitment.

Art. 11 coordination in the extent possible, the FINMA and the liquidator of bankruptcy are coordinating their actions with the authorities and Swiss and foreign bodies.

Art. 12 recognition of decisions of bankruptcy and the foreign measures when FINMA recognizes, in accordance with art. 54d LSA, a pronounced abroad, bankruptcy decision the provisions of this order apply to the assets located in Switzerland.
Even in the absence of reciprocity, FINMA may accept an application for recognition insofar as this serves the interests of the creditors concerned.
It refers to the unique forum of bankruptcy in Switzerland and the circle of creditors referred to in art. 54d LSA and art. 37g, al. 4, of the law of 8 November 1934 on the banks.
It publishes the recognition and the circle of creditors.
If she recognizes another measure of foreign insolvency, it determines the applicable procedure.

RS 952.0 Section 2 Procedure art. 13 publication and appeal to the creditors the FINMA notifies the insurance company the bankruptcy decision and publishes it along with the call to creditors.
The publication must include the following information: a. the name of the insurance undertaking, headquarters and its branches; b. date and time of the commencement of the bankruptcy c. bankruptcy for; (d) the name and address of the liquidator of bankruptcy; e. the demand made to creditors and to people who have claims on property held by the insurance undertaking to produce in the hands of the liquidator of bankruptcy in the time limit, their debts or claims, and put their means of proof; f. recall of claims that are deemed to have been produced within the meaning of art. 54, art. 1, LSA; g. the reminder of the obligation of announcement and provision to the senses of the art. 17 to 19.

If claims within the meaning of para. 2, let. e, are claims arising from insurance contracts, creditors should also describe the basis in the insurance contract.
The liquidator of bankruptcy may provide a copy of the publication to the known creditors.

Art. 14 meeting of creditors if the bankruptcy liquidator believes that it is appropriate to call a meeting of creditors, he made the proposal to FINMA. The latter decides to the powers of the meeting of creditors as well as the quorum of attendance and the votes necessary for the decision-making.
All creditors have the right to participate in the meeting of creditors or be represented. In case of doubt, the liquidator decides the admission of a person.
The liquidator of bankruptcy leads discussions and prepare a report on the State of the assets of the insurance undertaking as well as on the progress of the procedure.
Creditors can also make decisions by circular. A proposal of the liquidator of the bankrupt is deemed to be accepted by one creditor if it don't rejects not expressly within the time limit.

Art. 15 monitoring commission on a proposal from the liquidator of bankruptcy, FINMA decided designation and composition of a monitoring commission and defines the tasks and skills.
FINMA appoints the Chair, determines the procedure of decision-making, and fixed compensation of members.

Section 3 assets from bankruptcy art. 16 taking inventory the liquidator of bankruptcy proceeds to the inventory of property forming part of the bankrupt.
If the insurance company is a branch of a foreign insurance company, the liquidator of bankruptcy records possible bail in the inventory.

Unless otherwise provided by this order, inventory in accordance with the art. 221 to 229 of the Federal law of April 11, 1889, on debt collection and bankruptcy (LP).
The property belonging to the tied assets must be recorded in sections separated as part of the inventory. If there are several related fortunes, they will be held in separate sections.
The liquidator of the bankrupt shall submit to FINMA measures necessary for the conservation of the assets of the estate.
He submits the inventory to a person chosen by the owners of the insurance company to officiate as a body. He invites her to declare whether she considers the inventory accurate and complete. The declaration of this person must be recorded in the inventory.

RS 281.1 art. 17 obligation of provision and ad them debtors of the insurance undertaking as well as those who hold property of the IU as a pledge or in any capacity whatsoever are required to announce them to the liquidator of bankruptcy in the period of production referred to in art. 13, al. 2, let. e, and put at its disposal.
The debts must also be announced when they are the subject of compensation.
Straight preferably shuts off if the ad or provision is omitted unjustifiably.

Art. 18 exceptions to the obligation of providing securities and other financial instruments as collateral must not be put to the extent where the legal conditions for their implementation by the beneficiary of the security are met.
However, these goods as well as proof of the right to their realization must be announced to the liquidator of bankruptcy, which must be mentioned in the inventory.
The beneficiary of the collateral must agree with the liquidator of bankruptcy on the calculation of the proceeds of the realization of these goods. A potential surplus is paid to the bankrupt.

Art. 19 exceptions to the duty of announcement FINMA may predict that the claims of the insurance company registered in its books should not be announced by their debtor.

Art. 20 third-party claims the bankruptcy liquidator determines if property claimed by third parties must be returned to them.
If it considers that a claim is valid, it offers creditors the opportunity to request the assignment of the right to challenge within the meaning of art. 260, al. 1 and 2, LP and shall set a reasonable time for this purpose.
If it considers that a claim is unfounded or if creditors have demanded the transfer of the right to contest, he fixed to the claiming a period during which he can enter his claim for the bankruptcy judge. Him claiming shall have relinquished his claim if he does not act within the time limit.
In the event of assignment of the right, the action must be directed against creditors who got the right. The liquidator of bankruptcy informed him claiming the identity of the assignees at the time of the setting of the deadline to act.

RS 281.1 art. 21 claims, pretensions and revocations due claims of the mass are collected by the liquidator of bankruptcy, if necessary through the pursuit.
The liquidator of bankruptcy examines the claims of the mass on the security things that are in the possession or copossession of a third person, or on the buildings that are registered in the land register on behalf of a third party.
It examines whether the legal acts may be removed according to the art. 285 to 292 LP. The duration of a reorganization or a measure of safety within the meaning of art. 51, al. 1, in connection with the al. 2, let. a, b and i, LSA prior to the opening of bankruptcy does not enter the computation of time referred to in art. 286 to 288 LP.
If the liquidator of bankruptcy intends to argue in court a disputed claim or a claim of mass within the meaning of the al. 2 or 3, he asked FINMA approval and the necessary instructions.
If he committed no action, it may offer creditors the opportunity to ask for the assignment according to the art. 260, al. 1 and 2, LP or conduct concerned claims and other claims in accordance with art. 30 if he offers to creditors the opportunity to request the transfer, it shall set a reasonable time for this purpose.
The realization according to art. 30 is excluded: a. to claims in terms of revocation within the meaning of para. 3; ETB. for claims against liability: 1 founders, 2 bodies responsible for the management of the company, senior management, monitoring and control, et3. for audit companies designated by the insurance company.

RS 281.1 art. 22 pursuit of civil trials and administrative procedures the liquidator of bankruptcy examines the claims of the mass which, at the time of the opening of bankruptcy, already were the subject of a civil lawsuit or administrative proceeding, and he made a proposal to the FINMA on their continuation.
If FINMA decided not to pursue such a trial or proceedings, the liquidator of bankruptcy offers creditors the opportunity to request the assignment of rights according to art. 260, al. 1 and 2, LP and shall set a reasonable time for this purpose.

RS 281.1 art. 23 suspension for lack of assets if assets are not sufficient to complete the procedure of bankruptcy, the bankruptcy liquidator proposes to FINMA to stay the proceedings for lack of assets.
In exceptional cases, FINMA continues the procedure, even in the absence of sufficient assets, particularly if she is of particular interest.
If FINMA intends to suspend the procedure, she does know by publishing. She mentions that the proceedings will be continued if a creditor provides, within a certain time, the collateral required for procedure fees which are not covered by the assets. Deadline is set by the FINMA and determines the type of collateral and their amount.
If the required security is not provided within the specified time, each pledgee may apply to FINMA, within such time as it will take time, the realization of his gage. FINMA elects a liquidator of bankruptcy for the realization of the guarantees.
FINMA ordered the realisation of the assets of a legal person when no pledgee has requested the realization within the time limit. If a product remains after paying the costs of realization and the encumbrances of assets realized, it is paid to Confederation after coverage of costs of FINMA.
If directed against an individual bankruptcy proceedings were suspended for lack of assets, the art. 230, al. 3 and 4, LP applies to the procedure of prosecution.

RS 281.1 Section 4 liabilities of bankruptcy art. 24 audit of claims the bankruptcy liquidator examines claims produced as well as those arising from the law. In this context, it can conduct its own investigations and pray the creditors to recover from additional means of evidence.
He checks in particular to what extent and for what fortune linked according to art. 17 LSA claims may be admitted.
Are considered as under the Act: a. claims registered in the land registry, including the common interest; ETB. claims registered in the books of the business of insurance under art. 10. the liquidator of bankruptcy consulted the person designated by the owners to officiate as a body of the insurance company, about claims that are not registered in the books of the insurance undertaking.

Art. 25 collocation the bankruptcy liquidator decides the acceptance of a claim, its amount and its rank and establishes the State of collocation.
If a building is part of the mass, the liquidator of bankruptcy established a statement of the charges are related, like the mortgage, easements, land charges and annotated personal rights. The statement of the charges is an integral part of the scheme of collocation.

Art. 26 collocation of receivables arising from insurance contracts insofar as, in accordance with art. 17 LSA, a tied assets must guarantee claims, these are colloquées before the first class according to art. 219, al. 4, LP under the title separated by referring to the tied according to inventory assets. The amount uncovered is collocated in the order specified in art. 219, al. 4, LP.
If the insurance undertaking has several related fortunes, claims are colloquées in as many different sections.

RS 281.1 art. 27 claims subject to a civil suit or administrative procedure claims that already were the subject of a civil suit or an administrative procedure in Switzerland at the time of the opening of bankruptcy are initially referred to memory in the scheme of collocation.
If the liquidator of bankruptcy is not going civil trial or the administrative procedure, it offers creditors the opportunity to request the assignment of rights according to art. 260, al. 1, LP.
If neither mass nor assignees creditors pursue the civil trial or administrative procedure, the claim is considered to be recognized, and creditors no longer have the right to bring an action to challenge the scheme of collocation.

If creditors grantees continue the civil trial or administrative procedure, the amount for which the part of the creditor who succumbs is reduced is vested such creditors assignees until competition from their production and their costs of proceedings. A potential surplus is paid to the bankrupt or, where appropriate, in the corresponding tied assets.

RS 281.1 art. 28 consultation of the scheme of collocation creditors can check the status of collocation within the limits provided for in art. 5 at least 20 days.
The liquidator of bankruptcy publishes the date from which the scheme of collocation can be consulted and what form.
It may provide consultation will take place with the Agency of bankruptcy in the bankruptcy Forum.
He communicates to every creditor whose claim has not been collocated as it was produced or as she was registered in the books of the business of insurance or the land registry the reasons for which its production has been totally or partially waived.

Art. 29 action contesting the scheme of collocation actions to challenge the scheme of collocation are governed by art. 250 LP.
The time for bringing the action begins to run from the moment when it becomes possible to consult the State of collocation.

RS 281.1 Section 5 implementation art. 30 mode of realization the bankruptcy liquidator decides the mode and the moment of realization and proceeds to the latter.
Goods on which there are the rights of pledge can be made otherwise than by public auction only with the agreement of the secured creditors.
Goods can be made without delay: a. If they are part of the fortune related; (b) if they are exposed to a rapid depreciation; c. If they cause excessive administration costs; d. If they are traded on a representative market. Oue. If they have no significant value.

Art. 31 public auction public auction takes place in accordance with the art. 257 to 259 LP, unless the Ordinance provides otherwise.
The liquidator of bankruptcy organizes auction. It may fix a minimum price for the first auction under the conditions of the auction.
It shows in the publication that it is possible to consult the terms of the auction. It may provide that the consultation will take place with the Agency of bankruptcy or the proceedings of the place where the object is located.

RS 281.1 art. 32 assignment of rights the liquidator of bankruptcy sets in the certificate of assignment of the rights of the bankrupt within the meaning of art. 260 LP the time during which the creditor assignee must open the action to make the claim. If it does not use during this period, the transfer is then lapses.
Creditors assignees shall inform without delay the liquidator of bankruptcy and after the closing of the bankruptcy proceedings, FINMA of the result of the action taken.
If no creditor the assignment of rights or if no creditor does use during the time limit for action, the liquidator of bankruptcy and after the closing of the bankruptcy proceedings, FINMA decided an eventual achievement of these rights.

RS 281.1 art. 33 appeal against the achievements the liquidator of bankruptcy periodically establishes a plan of achievements that provides information on the assets must still be made and on how to proceed.
The achievements that can be performed without delay within the meaning of art. 30, al. 3, must not be mentioned in terms of the achievements.
A transfer of rights to the senses of the art. 32 is not considered as an achievement.
The liquidator of the bankrupt communicates achievements plan to creditors by outsourcing them a period of time during which they can ask the FINMA ruling subject to remedies for each expected accomplishment.

Section 6 Distribution and closing art. 34 the mass debts are covered first of all by the mass bankruptcy and in the following order: a. the commitments made by the bankrupt during the duration of the procedure; b. all fees for opening and the liquidation of bankruptcy proceedings.

Inventory costs, management and realization of goods of corresponding tied assets are covered first of all by the product of the sale of these goods. If the remaining bankrupt is insufficient for this purpose, other debts of the mass may be covered by the proceeds from the sale of the tied assets in proportion.

Art. 35 distribution of the proceeds of the sale of the tied assets covered once the commitments under art. 34, al. 2, and before the creditors of first class according to art. 219, al. 4, LP, the product of the sale of the property of tied assets allows you to refund the prorated claims covered by the corresponding tied assets.
The liquidator of bankruptcy may, with the agreement of the FINMA, proceed to the distribution according to the al. 1 prior to the entry into force of the scheme of collocation.
It specifies to what extent each claim is covered by the proceeds from the sale of the property under the control of a tied assets. Unsecured by a tied assets and the non-covered amount of debt guaranteed by a tied assets are covered by the resulting product of the bankrupt in the order specified in art. 219 SQ.
A potential surplus resulting from the realization of goods of tied assets falls into the bankrupt. The allocation of such surplus to another fortune linked to the same insurance company is excluded.

RS 281.1 art. 36 distribution of the rest of the fortune the liquidator of bankruptcy may provide interim distributions. It provides for this purpose a draft table of distribution and submit to approval by FINMA.
When all assets have been made and all the trials relating to the fixing of the assets and liabilities of the mass are completed, the liquidator of bankruptcy makes the final table of liquidation and the final account and submits them for approval by FINMA. It is not necessary to await the outcome of the lawsuits filed individually by creditors assignees in the sense of art. 260 SQ.
After the approval of the distribution table, the liquidator of bankruptcy proceeds to pay creditors.
No payment is made for claims: a. that the amount may not be fixed definitively; b. that rights holders are not known definitively; c. that are partially covered by wages abroad not made or that are covered under art. 18; Oud. for which rights holders are likely to be partially disinterested in the context of a foreign enforcement in connection with the bankruptcy proceedings.

RS 281.1 art. 37 final report and the liquidator of bankruptcy consignment send a final report to FINMA summarizing the progress of bankruptcy proceedings.
In addition, the final report of the liquidator of bankruptcy contains: a. a presentation on composition and extent of the related thus fortunes on the receivables covered wholly or partially by the proceeds from the sale of fortunes related; (b) a presentation on the outcome of each trial related to the fixing of the assets and liabilities of the mass; c. data on the State of the rights granted to creditors according to the art. 260 LP; ETD. a list of dividends not paid with an indication of the reasons for which the payment could not be run.

FINMA shall adopt the necessary provisions on the payment of dividends not paid.
FINMA publishes the closing of the bankruptcy proceedings.

RS 281.1 art. 38 Act of default assets creditors can apply with the liquidator of bankruptcy and after closure of bankruptcy proceedings, with FINMA, against payment of a flat-rate contribution, an act of default of property for the unpaid amount of their claim in accordance with art. 265 LP.
The liquidator of bankruptcy reported this possibility to creditors when paying their share.

RS 281.1 art. 39 keep parts the FINMA decided to how parts of the bankruptcy and the commercial activity of the insurance undertaking should be kept after the closure or suspension of bankruptcy proceedings.
The remaining parts of bankruptcy and commercial activity of the insurance undertaking must be destroyed on the orders of FINMA after expiry of a period of 10 years after the closure or suspension of bankruptcy proceedings.
Against specific legal provisions that govern the conservation of parts are reserved.

Art. 40 goods later discovered and consigned goods if goods or other claims which have not been included in the bankrupt are discovered in the ten years following the closure of bankruptcy proceedings, FINMA charge a bankruptcy liquidator to resume the procedure of bankruptcy without further formality.
The goods or claims found later are distributed to creditors who have suffered a loss and that the data necessary for payment are known as the liquidator of bankruptcy. The latter may invite creditors to let him know their current data by indicating that otherwise they will be deprived of their rights. He shall set a reasonable time for this purpose.

FINMA may waive use bankruptcy proceedings if it is clear that the costs of this recovery will be not covered or only will be slightly overwhelmed by the expected proceeds of goods discovered later. She then transfers later discovered property to the Confederation.
Consigned goods that become available or which have not been removed within ten years are also made according to para. 1 and distributed according to para. 2, subject to a special legal basis otherwise. The al. 3 is reserved.

Section 7 provisions final art. 41 transitional provision the provisions of this order apply to proceedings under way at the time of the entry into force of the latter.

Art. 42 entry into force this order comes into force on January 1, 2013.

RO 2012 6015 RS 961.01 State on January 1, 2013

Related Laws