Deals & Cases

Homburger team wins before Swiss Supreme Court

A Homburger team led by partner Thomas Müller and involving associate Reto Marghitola (both Litigation / Arbitration) won an important landmark case before the Swiss Supreme Court. The issue to be decided was whether a foreign bankruptcy estate has standing to sue for the recovery of assets in Switzerland based on a settlement agreement concerning alleged avoidance claims.The Supreme Court decided that the foreign bankruptcy estate was not allowed to do so. The court held that the bankruptcy trustee had to first seek recognition of the foreign bankruptcy decree pursuant to article 166 para. 1 of the Private International Law Statute, because such a settlement agreement was aimed at increasing the assets of the foreign insolvency estate.According to the Supreme Court the conclusion of such an agreement constitutes an illegal realization of assets which is reserved to a Swiss bankruptcy official at least to the extent assets located in Switzerland are concerned. The decision of the Supreme Court (4A_389/2011 dated 26 October 2011) is published in BGE 137 III 631.