Key Benefits:
On 6 December 2012 (State 1 Er March 2013)
The Federal Financial Market Supervisory Authority (FINMA),
See art. 138, para. 3, of the Act of 23 June 2006 on the collective investment of capital (CCPC) 1 ,
Stops:
This order specifies the procedure for bankruptcy under s. 137 to 138 C CCPC applies to the holders of an authorization referred to in s. 2.
This order applies to the following institutions and persons (holders of the authorization):
1 When a bankruptcy procedure is opened, it extends to all realizable assets belonging to the holder of the authorisation at that time, whether they are in Switzerland or abroad.
2 All Swiss and foreign creditors of the holder of the authorisation and of its foreign branches are, to the same extent and with the same privileges, authorised to participate in the open bankruptcy procedure in Switzerland.
3 The property of a Swiss branch of a foreign authorization holder is considered to be the property of a foreign authorization holder of all assets established in Switzerland and abroad by the persons who acted for that branch.
1 The publications are made in the Official Swiss Trade Sheet, on the FINMA website and in the post-art publishing bodies. 39 of the Order of 22 November 2006 on collective investments 1 .
2 Communications are addressed directly to creditors whose names and addresses are known. FINMA may require creditors whose registered office or domicile is abroad to appoint an agent to receive communications in Switzerland if that contributes to the simplification of the procedure. It may waive direct communication in the event of an emergency or simplify the procedure.
3 The publication in the Swiss Official Gazette of Commerce is authentic for the calculation of time limits and legal consequences related to publication.
1 Any person who is likely to be directly affected by the bankruptcy in his or her own pecuniary interest may consult the documents relating to the bankruptcy; professional secrecy within the meaning of s. 148, para. 1, let. K, LPCC shall be preserved as much as possible.
2 Consultation of documents may be limited to certain stages of the proceedings or may be restricted or refused due to overriding interests.
3 Any person who consults documents may use the information obtained only to preserve his own direct pecuniary interest.
4 Consultation of the documents may be subject to a declaration that the information consulted is used solely for the purpose of preserving the signatory's own direct pecuniary interest. It may be accompanied by the threat of penalties under s. 48 of the Act of 22 June 2007 on the supervision of financial markets 1 And 292 of the Penal Code 2 .
5 The liquidator of the bankruptcy and, after the closure of the bankruptcy proceedings, FINMA makes the decisions concerning the consultation of the coins.
1 Any person who is affected in his or her interests by the decision, act or omission of a person to whom FINMA has assigned duties under this order may report the facts to FINMA.
2 The decisions taken by these persons are not decisions within the meaning of the Federal Act of 20 December 1968 on the administrative procedure 1 And the whistleblower does not have the quality of party within the meaning of the said Act.
3 FINMA appreciates the facts which are the subject of the denunciation, takes the necessary measures and makes a decision if necessary.
1 FINMA appoints a liquidator of the bankruptcy by way of a decision if it does not itself carry out the corresponding tasks.
2 If it appoints a liquidator of a bankruptcy, it shall ensure that the person selected is able, both temporally and technically, to exercise the mandate in a rigorous, effective and effective manner and to ensure that no conflict of interest Object to the allocation of the mandate.
3 It sets out the content of the mandate, including the costs, reporting and control of the liquidator of the bankruptcy.
The liquidator of the bankruptcy conducts the proceedings. In particular, it must:
In the event of a bankruptcy of a SICAV, the liquidator of the bankruptcy shall be assigned the following tasks in addition to those referred to in s. 8:
1 The debtor for bankruptcy shall be at the seat of the holder of the authorization or branch of a holder of the foreign authorization in Switzerland.
2 If a foreign authorization holder has several branches in Switzerland, there is only one for bankruptcy. FINMA refers to this forum.
3 For natural persons, the forum for bankruptcy is instead of commercial exploitation at the time of the opening of the bankruptcy proceedings.
To the extent possible, FINMA and the liquidator of the bankruptcy coordinate their actions with the Swiss and foreign authorities and bodies.
1 When FINMA recognizes, in accordance with ss. 138 C CCPC and 37 G The Bank Act of 8 November 1934 (LB) 1 , a declaration of bankruptcy abroad, the provisions of this Ordinance shall apply to the heritage in Switzerland.
2 Even in the absence of reciprocity, FINMA may accept a request for recognition to the extent that it serves the interests of the creditors concerned.
3 It refers to the unique forum for bankruptcy in Switzerland and the circle of creditors referred to in s. 138 C CCPP and s. 37 G , para. 4, LB.
4 It publishes the recognition and circle of creditors.
5 If it recognizes another measure of foreign insolvency, it shall determine the applicable procedure.
1 FINMA notifies the authorisation holder of the bankruptcy decision and publishes it at the same time as the call to creditors.
2 The publication should include the following information:
3 The liquidator of the bankruptcy may issue a copy of the publication to the creditors and the known investors.
In the event of the bankruptcy of a SICAV, the publication must contain the following particulars, in addition to those referred to in s. 13:
1 If the liquidator of the bankruptcy considers it appropriate to call a meeting of creditors, he or she makes the proposal to FINMA. The latter decides on the powers of the meeting of creditors, as well as the quorum of attendance and votes required for decision-making.
2 All creditors have the right to participate in or be represented in the meeting of creditors. In case of doubt, the liquidator decides on the admission of a person.
3 The liquidator of the bankruptcy conducts the proceedings and draws up a report on the state of the assets of the holder of the authorisation and on the progress of the proceedings.
4 Creditors may also make decisions by way of a circular. A proposal by the liquidator of the bankruptcy is deemed to be accepted by a creditor if the creditor does not expressly reject it within the specified time limit.
1 On the proposal of the liquidator of the bankruptcy, FINMA decides on the appointment and composition of a supervisory board and defines its tasks and competences.
2 FINMA appoints the chairperson, determines the procedure for making decisions and establishes compensation for members.
1 The liquidator of the bankruptcy shall carry out an inventory of the assets forming part of the bankrupt estate.
2 Unless otherwise provided in this order, the taking of inventory shall be carried out in accordance with Art. 221-229 of the Federal Act of April 11, 1889 on the Prosecution of Debts and Bankruptcy (LP) 1 .
3 The liquidator of the bankruptcy shall submit to FINMA the measures necessary for the conservation of the assets of the estate.
4 It shall submit the inventory to a person selected by the owners of the authorisation holder as an organ. He invited him to declare whether she considered the inventory to be accurate and complete. His statement must be recorded in the inventory.
As part of the inventory, the liquidator of the bankruptcy shall deposit in a separate section the goods belonging to a compartment.
1 The debtors of the holder of the authorization, as well as persons who hold property of the holder of the authorization as a pledge or in any capacity, have an obligation to announce them to the liquidator of the bankruptcy within the period of Production referred to in s. 13, para. 2, let. E, and make them available to them.
2 Debts must also be announced when they are compensated.
3 Any right of preference shall be extinguished if the advertisement or making available is unjustifiably omitted.
1 The securities and other financial instruments used as security rights shall not be surrendered to the extent that the legal conditions for their realization by the beneficiary of the security rights are met.
2 These assets, as well as the proof of the right to their realization, must, however, be announced to the liquidator of the bankruptcy, who must mention them in the inventory.
3 The beneficiary of the security rights must agree with the liquidator of the bankruptcy on the calculation of the proceeds of the realization of those assets. A possible surplus shall be paid to the bankrupt estate, respectively, in the corresponding compartment.
The assets and rights of an investment fund are distracted according to Art. 35 LPCC. The claims of the management of funds under s. 33 CCPCs are reserved.
1 The liquidator of the bankruptcy determines whether the goods claimed by third parties must be returned to them.
2 If it considers a claim to be valid, it offers the creditors the opportunity to request the assignment of the right to challenge it within the meaning of s. 260, para. 1 and 2, LP 1 And sets a reasonable period of time for this purpose.
3 If it considers that a claim is unfounded or if the creditors have requested the assignment of the right to challenge it, it fixes the claim for a time limit during which the creditor may refer the claim to the judge of the bankruptcy court. The claim is deemed to have waived its claim if it does not act within the prescribed time limit.
4 In the case of an assignment of the right, the claim action must be directed against the creditors who have surrendered the right. The liquidator of the bankruptcy informs the claim of the identity of the assignees at the time of setting the deadline for action.
1 The debts due to the estate are cashed by the liquidator of the bankruptcy, if necessary by the track of the suit.
2 The liquidator of the bankruptcy examines the claims of the estate on the securities that are in the possession or co-session of a third party, or on real property that is entered in the land registry on behalf of a third party.
3 It examines whether legal acts can be revoked in accordance with art. 285 to 292 LP 1 . The duration of a consolidation preceding the commencement of the bankruptcy shall not enter into the calculation of the time limits referred to in Art. 286 to 288 LP.
4 If the liquidator of the bankruptcy intends to bring to justice a disputed claim or a claim of mass within the meaning of paras. 2 or 3, he asks FINMA for his authorization and the necessary instructions.
5 If the creditor does not take any action, he or she may offer the creditors the opportunity to apply for an assignment under s. 260, para. 1 and 2, LP or to carry out the claims concerned and the other claims in accordance with Art. 33.
6 If it offers the creditors the opportunity to apply for the assignment, it sets a reasonable period of time for that purpose.
7 Realization under s. 33 is excluded for revocation claims within the meaning of s. 3 as well as those relating to liability within the meaning of Art. 145 LPCC.
1 The liquidator of the bankruptcy examines the claims of the estate which, at the time of the opening of the bankruptcy, were already the subject of a civil trial or administrative procedure, and made a proposal to FINMA as to their prosecution.
2 If FINMA decides not to pursue such a trial or proceeding, the liquidator of the bankruptcy offers the creditors the opportunity to request the assignment of the rights under s. 260, para. 1 and 2, LP 1 And sets a reasonable period of time for this purpose.
1 If the assets are not sufficient to carry out the bankruptcy proceedings, the liquidator of the bankruptcy proposes to FINMA to suspend the procedure due to lack of assets.
2 In exceptional cases, FINMA continues the procedure, even in the absence of sufficient assets, in particular if it is of particular interest.
3 If FINMA intends to suspend the proceedings, it will inform FINMA by publishing it. It mentioned that the procedure would be continued if a creditor provided, within a certain period of time, the security rights required for proceedings fees that were not covered by the assets. FINMA sets the time limit and determines the type and amount of security rights.
4 If the security rights required are not provided within the specified time limit, each secured creditor may request the completion of its pledge within the time limit specified by the FINMA. FINMA mandates a liquidator of the bankruptcy for the realization of the guarantees.
5 FINMA orders the realization of the assets of a legal entity when no secured creditor has requested it to be carried out within the specified time limit. If a product remains after payment of the costs of realization and the charges on the realised assets, it shall be paid to the Confederation after coverage of the expenses of FINMA.
6 If the bankruptcy proceedings against a natural person have been suspended due to lack of assets, s. 230, para. 3 and 4, LP 1 Applies to the prosecution procedure.
1 The liquidator of the bankruptcy examines the claims produced as well as those arising out of the law. In this context, it may conduct its own investigations and request creditors to provide additional evidence.
2 Claims entered in the Land Register, including current interest, are considered to be derived from the Act.
3 The liquidator of the bankruptcy shall consult the person designated by the owners of the holder of the authorisation for an officer as a body in relation to claims.
1 In the event of a bankruptcy of a SICAV, the liquidator of the bankruptcy also verifies the existence and the amount of the claims on the various compartments.
2 Subject to para. 3, an investment compartment only responds to its own commitments. The company's compartment responds in the alternative to these commitments.
3 If the limitation of liability between the compartments in contracts with third parties is not disclosed, the compartment of the company shall respond in the first place and the investment compartment in the alternative, in proportion to its share The wealth of the fund.
1 The liquidator of the bankruptcy decides on the acceptance of a claim, its amount and rank and establishes the state of collocation.
2 If a building is part of the estate, the liquidator of the bankruptcy establishes a statement of the related charges, such as real estate, easements, land charges and annotated personal rights. The condition of the charges is an integral part of the state of collocation.
3 In the event of a bankruptcy of a SICAV, the colloked claims on the various compartments claimed for the satisfaction of the claims must be separated from each other.
1 Claims which were already the subject of civil proceedings or an administrative procedure in Switzerland at the time of the opening of the bankruptcy are initially mentioned for memory in the condition of collocation.
2 If the liquidator of the bankruptcy renounces the civil proceedings or the administrative procedure, it provides the creditors with an opportunity to request the transfer of the rights under s. 260, para. 1, LP 1 .
3 If neither the estate nor the transferee creditors continue the civil proceedings or the administrative procedure, the claim is considered to be recognized, and the creditors no longer have the right to bring an action against the condition of collocation.
4 If grantee creditors continue the civil process or the administrative procedure, the amount by which the losing creditor's share is reduced is vested in the said grantors up to the amount of their production and Their procedural costs. A possible surplus is paid to the bankrupt estate or the corresponding compartment.
1 Creditors may consult the condition of collocation within the limits set out in s. 5 for at least 20 days.
2 The liquidator of the bankruptcy shall publish the date on which the state of collocation can be consulted and in what form.
3 It may provide that the consultation will take place with the bankruptcy office in the case of bankruptcy.
4 It shall communicate to each creditor whose claim has not been colloqued as it was produced or as recorded in the Land Registry the reasons for which its production has been totally or partially excluded.
1 The liquidator of the bankruptcy decides on the mode and timing of the realization and proceeds to the realization.
2 Property on which a lien exists may be made other than by public auction only with the agreement of the winning creditors.
3 Goods can be made without delay:
1 If the maintenance of one or more investment funds is in the interest of the investors, the liquidator of the bankruptcy shall propose to the FINMA of the or transfer it to another direction of funds, with all the rights and obligations arising therefrom.
2 If there are no other fund managers ready to return to the funds, the liquidator of the bankruptcy asks FINMA to proceed with the liquidation of the fund or the funds in the context of the bankruptcy of the fund management.
1 If the maintenance of one or more compartments is in the interest of the investors, the liquidator of the bankruptcy shall propose to the FINMA of the or transfer it to another SICAV, with all the rights and obligations arising therefrom.
2 If there is no other SICAV ready to take over this or these compartments, the liquidator of the bankruptcy asks FINMA to liquidate it or these in the context of the bankruptcy of the SICAV.
1 Public auctions are conducted in accordance with Art. 257 to 259 LP 1 , unless otherwise provided for in this order.
2 The liquidator of the bankruptcy organizes the auction. It may set in auction conditions a minimum auction price for the first auction.
3 It states in the publication that it is possible to consult the conditions of the auction. It may provide that the consultation will take place at the Office of Bankruptcy or the prosecution of the place where the object is located.
1 The liquidator of the bankruptcy defines in the certificate of assignment the rights of the bankrupt estate within the meaning of s. 260 LP 1 The period during which the assignee must open the action to claim the claim. If it does not use it during that period, the assignment is then lapsed.
2 The transferee creditors shall inform the liquidator of the bankruptcy without delay and, after the closure of the bankruptcy proceedings, FINMA of the result of the action taken.
3 If no creditor requests the assignment of rights or if no creditor makes use of it during the period set for initiating an action, the liquidator of the bankruptcy and, after the closure of the bankruptcy proceedings, FINMA decides on a possible Realization of these rights.
1 The liquidator of the bankruptcy shall periodically draw up a plan of achievements which provides information on the assets to be carried out and on how to proceed.
2 Achievements that can be made without delay within the meaning of s. 33, para. 3, should not be mentioned in the plan of achievement.
3 An assignment of rights within the meaning of s. 37 is not considered a realization.
4 The liquidator of the bankruptcy communicates the plan of achievement to the creditors by providing them with a time limit during which they can ask the FINMA to make a decision subject to appeal for each intended achievement.
1 The following are covered first by the bankrupt estate and in the following order:
2 In principle, the product of the realization of the investment compartments of a SICAV can only be used to cover the costs of inventory, management and realization of the compartment concerned.
1 The liquidator of the bankruptcy may provide for interim distributions. For this purpose, it shall draw up a provisional distribution table and submit it for the approval of FINMA.
2 When all assets have been completed and all proceedings relating to the asset and liability setting of the estate have been completed, the liquidator of the bankruptcy shall draw up the final liquidation table and the final account and submit them To the approval of FINMA. It is not necessary to await the outcome of individual proceedings by grantee creditors within the meaning of s. 260 LP 1 .
3 After approval of the distribution board, the liquidator of the bankruptcy proceeds to the payment of the creditors.
4 No payment is made for claims:
1 The proceeds from the realization of the capital assets are used to disinterest creditors.
2 The proceeds from a possible implementation of the investment fund are used to disinterest investors, in proportion to their share.
1 The proceeds of the realization of the goods serve to disinterest the creditors of the corresponding compartments.
2 A possible surplus of a compartment falls to the shareholders entitled to this compartment, in proportion to their share.
1 The liquidator of the bankruptcy sends a final report to FINMA summarising the bankruptcy proceedings.
2 The final report of the liquidator of the bankruptcy also contains:
3 FINMA adopts the necessary provisions on the recording of unremitted dividends as well as the values deposited distracted from the mass and not returned.
4 FINMA publishes the closure of the bankruptcy proceedings.
1 Creditors may request from the liquidator of the bankruptcy and, after the closure of the bankruptcy proceedings, with FINMA, against payment of a lump-sum contribution, an act of default of property for the unpaid amount of their claim, Pursuant to s. 265 LP 1 .
2 The liquidator of the bankruptcy reports this possibility to the creditors upon payment of their share.
1 FINMA decides how the bankruptcy and commercial activity must be retained after the closure or suspension of the bankruptcy proceedings.
2 The parts of the bankruptcy and the remaining commercial activity must be destroyed on the order of FINMA after a period of ten years after the closure or suspension of the bankruptcy proceedings.
3 The specific legal provisions to the contrary that govern the conservation of certain parts are reserved.
1 If property or other claims that have not been included in the bankrupt estate are discovered within ten years of the end of the bankruptcy proceedings, FINMA instructs a liquidator of the bankruptcy to resume the bankruptcy proceedings Without further formality.
2 The property or claims discovered later are distributed to the creditors who have suffered a loss and whose data are known to the liquidator of the bankruptcy. The latter may invite creditors to inform them of their current data, indicating that in default they will be deprived of their rights. It sets a reasonable time limit for this purpose.
3 FINMA may renounce the resumption of the bankruptcy procedure if it is clear that the costs incurred by this recovery will not be covered or will be only slightly exceeded by the expected product of the realization of the assets discovered Later. She then transferred the assets discovered later to Confederation.
4 Returnable assets that become available or have not been withdrawn within ten years are also made according to para. 1 and distributed according to para. 2, subject to a special legal basis to the contrary. L' al. 3 is reserved.
This order shall apply to proceedings in progress at the time of its entry into force.
This order shall enter into force on 1 Er March 2013.
