L'exécution des jugements et des titres authentiques sous l'angle du principe d'égalité.
(The enforcement of
judgements and authentic instruments in respect of the equal protection
principle)
By Francesco Naef
Published in: Revue suisse de procédure civile 2006, pp. 329-344
La Revue Suisse de
Procédure Civile est accessible depuis sa création sur www.legalis.ch
The enforcement of foreign judgements in
Switzerland under the Lugano Convention and especially the implementation of
its art. 39 (i.e. the protective measure against the property of the party
against whom enforcement is sought) is a very debated issue. In fact, neither the
Lugano Convention nor the Swiss federal statutes provide a definition of such protective
measures, and this issue has not yet been straightforward answered
by the Courts.
The draft of the new Federal Code of Civil
Procedure does not deal with such problems and keep unchanged the present
chaotic situation.
A pure
shame, since by adopting a new article of the Debt Enforcement
and Bankruptcy Act, similar to that that the federal Parliament
adopted in 1888
and that did not come into force by mistake, would solve all the problems.
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Segreto bancario e accordo di Schengen.
(Bank secrecy and the
Schengen treaty)
By Francesco Naef
Published in: Nuova Rivista di diritto Commerciale e Processuale 2005
, pp. 30-46
The legal regime of reservations to international
treaties has been codified in the Articles 19 to 23 of the Vienna Convention,
but there is no clear rule neither about the "information declarations"
nor the "interpretative declarations", which are often difficult to distinguish
from reservations. An example of such problem is the Swiss
declaration to the treaty of Schengen. This treaty includes some rules on the
international cooperation in criminal and tax matters, that could affect the Swiss
banking secrecy.
According to the Swiss Government, the Swiss
"interpretative declaration" made in connection with such treaty will
avoid all problems, since such cooperation will not cover the matter of tax
evasion of direct taxes.
Will this be a true statement or a wishful
thinking?
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La legittimazione del fallimento estero a procedere in Svizzera.
(The powers of a foreign bankruptcy liquidator in Switzerland)
By Francesco Naef
Published in: Nuova Rivista di diritto Commerciale e Processuale 2005
, pp. 134-148
According to Article 166 of the Swiss Private International Law Act, a foreign judgment opening insolvency proceeding made in the debtor's Country of domicile may be recognised in Switzerland upon application by the foreign liquidator, provided that such judgment is enforceable in the Country in which it was made, that minimal procedural requirements were met and that the Country in which the judgment was made would reciprocally recognise a similar Swiss judgment. The Swiss judgment confirming recognition of the foreign bankruptcy has the same effect on the debtor's Swiss assets as a domestic declaration of bankruptcy: The bankrupt loses its capacity to dispose of its assets in favour of the Swiss bankruptcy authority who is in charge of realising all Swiss assets, distributing the proceeds to specified groups of creditors domiciled within the Country and handing over any surplus to the foreign insolvency proceeding authority.
What happens if the foreign judgment is not recognised? May the foreign individual or corporation under bankruptcy procedure still be able to sue its debtors before the Swiss courts?
According to an obiter dictum in a recent decision of the Swiss Supreme Court the answer seems to be negative: as the foreign judgment of bankruptcy has no effects in Switzerland without recognition, the foreign bankrupt corporation may not sue its debtors in Switzerland.
This answer is not consistent with the prevailing case law on this issue. There may be two different answers to this question, depending on whether the debtor subject to the insolvency proceeding be a natural or legal person.
The foreign natural person may act (alone, i.e. without the consent of the foreign liquidator) before the Swiss courts until recognition of the bankruptcy judgment; in fact, the automatic assignment to the liquidator of the totality of debtor's assets is a typical effect of the insolvency proceeding that needs the recognition, in order to become effective in Switzerland. After that, neither the foreign natural person nor his liquidator may act in Switzerland, because the ancillary Swiss proceeding is conducted by the Swiss bankruptcy authority only.
The foreign legal person may also act in Switzerland until the bankruptcy judgment is recognised, but only through its foreign liquidator, who replaced its directors; as the discharge of directors is not a typical effect of bankruptcy, it may produce itself without recognition: in fact, the formation, existence, dissolution, and the agency of directors of a corporation are determined by the law of the State of its incorporation. After the recognition, only the Swiss bankruptcy authority may act in Switzerland and collect the bankrupt's assets.
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Conto corrente e rigetto provvisorio dell'opposizione.
(Current account and Temporary Order Setting Aside a Debtor's Objection to a Payment Injunction)
By Francesco Naef
Published in: Rivista di diritto amministrativo e tributario ticinese II-1997, pp. 247-257
Under Swiss Law, a creditor can initiate debt enforcement proceedings
against a debtor without great difficulties: on simple request the Office of Collection and Bankruptcies (OCB) serves upon the debtor an injunction to meet his obligations.
If the debtor files an objection, the creditor must then turn to the ordinary
courts to uphold his claim and have the debtor's objection set aside. If the creditor has
a written acknowledgement of debt signed by the debtor (Section 82 Federal Debt Enforcement and Bankruptcy Act: LEF), he may ask the court in a summary proceeding - i.e. in
an easy and rapid proceeding -
to temporarily set aside the debtor's objection.
Thus the courts are often called upon to examine the matter whether or not a document is an
acknowledgement of debt.
Oddly in Switzerland - the Country of the banks - the issue of whether and under which conditions
a statement of account is an acknowledgement of debt is hotly disputed; the issue has not yet been answered unambiguously by the Courts.
An examination of the various opinions shows that, as a matter of principle, a statement of account signed by the debtor is sufficient cause,
together with the credit agreement, to temporarily set aside the debtor's objection pursuant to Section 82 LEF, provided
that the agreement is terminated, and that subsequently to the statement of account the balance
has not been brought forward and no new transactions are being performed on the account.
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The duty of confidentiality of banks in Switzerland: where it stands and where it goes.
Recent developments and experience. The swiss assistance to, and cooperation with the italian authorities
in the investigations of corruption among civil servants in Italy (the "clean hands" investigation): how much is too much?
By Daniele Calvarese and Paolo S. Grassi
Published in: Pace International Law Review 1995, Vol. 7, pp. 329-372
The duty of confidentiality of banks (commonly called bank secrecy) has always played an important role in Switzerland as a social-political value. Especially abroad, the Bank secrecy has gained a reputation which does not live up to the country's juridical situation. Although Switzerland has developed strong bank secrecy rules, the confidentiality can obviously not be absolute. On the contrary, in the last years the limits set to this juridical principle have been increased, particularly within the framework of international assistance in criminal matters.
The first part of the article deals with the description of the limits to the duty of confidentiality under Swiss civil and public laws and the consequences for it's breach.
In the second part, the legal bases and general principles by which international assistance in criminal matters is given, are determined, with particular attention to bank information. Lastly, Swiss Court decisions related to the request for assistance by Italy in connection with the prosecution of corruption among Italian politicians are dealt with in the closing part.
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Divagazioni sul potere cognitivo del giudice delle rogatorie internazionali
(Digressions on jurisdiction in relation to international rogatory letters)
By Francesco Naef
Published in: Aktuelle Juristische Praxis 1997, pp. 290-302
According to the Swiss Federal Court, Swiss magistrates have only limited jurisdiction in
cases concerning international judicial assistance in criminal matters.
A magistrate is bound by the requesting authority's summary of the facts. On the other hand, adherence to the principle of proportionality is verified only approximately: only an obvious breach of that principle can
justify the refusal of the requested judicial assistance. Finally, the bar against fishing expedition
and the rules intended to protect unconcerned third parties are implemented very prudently.
This trend in the decisions of the courts is not justified by either domestic or international law.
It engenders a discrimination between a Swiss judge and a foreign judge: a foreign judge can restrict the fundamental
rights - provided by the Federal Constitution and by the European convention on human rights - more than a
Swiss judge may do.
The position of the precedent on this issue therefore needs to be reviewed.
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Sulla causalità della costituzione della cartella ipotecaria al portatore
(About the causa of the creation of the bearer mortgage certificate)
By Francesco Naef
Published in: Aktuelle Juristische Praxis 1999, pp. 1083-1092
A bearer mortgage certificate can be created by contract or, in the case of «the owner's mortgage certificate», by
unilateral will of the owner.
Knowing the causa of the creation of bearer mortgage certificate is essential; a mortgage agreement must be drawn up as a public deed, while a simple written deed is sufficient for the voluntary creation of the bearer
mortgage certificate. If the mortgagor has already committed himself to a mortgagee to create the certificate, he cannot do so by a simple written deed, because the causa of his act of disposition is not his free will but a contract.
In this case, the bearer mortgage certificate created by simple written deed is void, because the causa does not meet the formal requirement.
The only exception to this principle is when the mortgagor, inspite of his knowledge of the voidness
of his commitment, nevertheless voluntarily and spontaneously submits to the Real Estate Registry the request
for creation of the certificate.
This voidness can be contested by the mortgagor or by a third party in a proceeding for debt enforcement or bankruptcy.
When, as in the majority of cases, the mortgagor already came to an agreement with the mortgagee on the credit terms, before
presenting to the Real Estate Registry the request of creation of a bearer mortgage certificate, the mortgagee would be well advised to require the creation of the certificate by public deed.
A public notary, too, if he has knowledge of the mortgagor's engagement, can only choose the required
form of the public deed.
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Nozione d'insolvenza e cautio iudicatum solvi
(Notion of Insolvency and Cautio Iudicatum Solvi)
By Francesco Naef
Published in: Repertorio di giurisprudenza patria 1993, pp. 97-121
Almost all the Swiss codes of civil procedure contemplate the possibility of compelling a plaintiff to post in favor of the
defendant a cautio iudicatum solvi, i.e. a security for costs that guarantees to the victorious defendant
the reimbursement of expenses he has incurred by virtue of the trial.
Much like the Federal Act on the Organization of the Judiciary and the codes of civil procedure of other Swiss Cantons, the code of
civil procedure of the Canton of Ticino (Section 153 CPC) provides this possibility in two cases only, where it might be particularly difficult for the victorious defendant to have his legal expenses reimbursed: when
the plaintiff resides abroad, or when he is insolvent. Since many international treaties forbid any security for
costs to be exacted on the strenght of the foreign domicile of the plaintiff, the most interesting case is the second.
The notion of insolvency is defined in the Federal Debt Enforcement and Bankruptcy Act (LEF): a person is insolvent
if it is unable to pay its enforceable debts due to lack of funds.
A proper application of this definition means that a plaintiff can rarely be treated as an insolvent, and can therefore be compelled to advance a cautio iudicatum solvi; only three types of documents provided for by the Federal Debt
Enforcement and Bankruptcy Act are admissible as conclusive proof of insolvency: a bankruptcy order (Section 171 LEF), a certificate of lack of assets (Sections 149 and 265 LEF), and a moratorium order (Section 295 LEF).
It is not possible to broaden the scope of application of the cautio iudicatum solvi because it is a provision of the civil
procedure that limits or hinders the right of access to the courts. In certain cases then, the cautio iudicatum solvi could
constitute a violation of the Federal Constitution and/or the European Convention on human rights.
Prevailing case law on cautio iudicatum solvi is not always consistent with those principles and may therefore need to be reviewed in certain aspects.
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La proprietà collettiva in diritto svizzero: profili generali
(Collective property under Swiss law: outlines)
By Francesco Naef
Presented at: "Condominio, comunione e multiproprietà nei due ordinamenti", V Convegno di studio del Comitato dei notariati lombardo e ticinese, October 21
2000, Cernobbio, Italy
Under the Swiss Civil Code, collective property - i.e. that situation
where property is owned by more than one person - can exist in the form of
co-ownership or joint ownership.
In co-ownership, each co-owner owns an equal share of the property and
with regard to his share has the same rights and duties as any other ordinary
owner; he may sell or encumber his share without the consent of the others
co-owners. There are provisions both on the relation between co-owners and the
management of the property; however, co-owners may adopt different rules in the
by-laws of the co-ownership. The Civil Code also provides for the possibility
of the exclusion of a co-owner by a Court, if that co-owner disregards his duties
to the point where the other co-owners can no longer be reasonably expected to
tolerate such violations.
The Condominium - i.e. the ownership of one apartment
or one floor in a building - is a special sort of co-ownership, and is governed
by specific regulations. The tenant in common of a condominium is very similar
to a co-owner, but he has the right to the exclusive use of a particular part
of the building as sole owner.
Joint ownership is ownership by several persons based on a special legal relationship among these
persons, such as marriage, community among heirs or partnership. In the absence of any other regulation, joint owners may only sell, encumber or manage their
property by unanimous consent.
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