¹ For­eign de­cisions re­lat­ing to a claim un­der the law of ob­lig­a­tions are re­cog­nised in Switzer­land:

a.

if they were rendered in the state of the de­fend­ant’s dom­i­cile; or

b.

if they were rendered in the state of the de­fend­ant’s ha­bitu­al res­id­ence, in­so­far as the claims re­late to an activ­ity car­ried out in such state.

² They are also re­cog­nised:

a.⁸⁶

if the de­cision relates to a con­trac­tu­al ob­lig­a­tion, was rendered in the state of per­form­ance of the char­ac­ter­ist­ic ob­lig­a­tion, and the de­fend­ant was not dom­i­ciled in Switzer­land;

b.

if the de­cision relates to a claim un­der a con­tract con­cluded with a con­sumer, was rendered at the con­sumer’s dom­i­cile or ha­bitu­al res­id­ence, and the re­quire­ments provided in Art­icle 120 para­graph 1 are met;

c.

if the de­cision relates to a claim un­der an em­ploy­ment con­tract, was rendered either at the place of the es­tab­lish­ment or at the place of work, and the em­ploy­ee was not dom­i­ciled in Switzer­land;

d.

if the de­cision relates to a claim arising out of the op­er­a­tion of an es­tab­lish­ment and was rendered at the loc­a­tion of that es­tab­lish­ment;

e.

if the de­cision relates to un­just en­rich­ment, was rendered at the place where the act or res­ult oc­curred, and the de­fend­ant was not dom­i­ciled in Switzer­land; or

f.⁸⁷

if the de­cision relates to an ob­lig­a­tion in tort, was rendered at the place where the act or the res­ult oc­curred or, in the case of nuc­le­ar in­cid­ents, at the place where the nuc­le­ar in­stall­a­tion of the op­er­at­or li­able is loc­ated, and the de­fend­ant was not dom­i­ciled in Switzer­land.

¹ In mat­ters con­cern­ing trust law, the choice of for­um con­tained in the trust deed shall pre­vail. The choice of for­um or the au­thor­isa­tion con­tained in the trust deed to choose the for­um only has to be fol­lowed if it is made in writ­ing or in any oth­er form which per­mits it to be evid­enced by text. Un­less oth­er­wise provided, a choice of for­um is ex­clus­ive. Art­icle 5 para­graph 2 ap­plies by ana­logy.

² The chosen court may not de­cline jur­is­dic­tion:

a.

if one of the parties, the trust or one of the trust­ees is dom­i­ciled, ha­bitu­ally res­id­ent or has an es­tab­lish­ment in the can­ton where the court is loc­ated, or

b.

if a ma­jor share of the as­sets of the trust are loc­ated in Switzer­land.

³ Where there is no val­id choice of for­um, or if the choice of for­um is not ex­clus­ive, jur­is­dic­tion shall lie with the Swiss courts:

a.

at the dom­i­cile or, in the ab­sence of a dom­i­cile, at the ha­bitu­al res­id­ence of the de­fend­ant;

b.

at the seat of the trust; or

c.

for claims arising out of the op­er­a­tions of an es­tab­lish­ment in Switzer­land, at the loc­a­tion of that es­tab­lish­ment.

⁴ Dis­putes re­gard­ing li­ab­il­ity arising out of the pub­lic is­sue of equity or debt se­cur­it­ies may also be brought be­fore the Swiss courts at the place of is­sue. This jur­is­dic­tion may not be ex­cluded by a choice of for­um.

¹ The law ap­plic­able to trusts is gov­erned by the Hag­ue Con­ven­tion of 1 Ju­ly 1985⁹⁰ on the Law Ap­plic­able to Trusts and on their Re­cog­ni­tion.

² The law des­ig­nated by the Con­ven­tion shall also ap­ply when the Con­ven­tion does not ap­ply pur­su­ant to its Art­icle 5 or when a state is not bound to re­cog­nise a trust pur­su­ant to Art­icle 13 of the Con­ven­tion.

¹ Where the as­sets of the trust are re­gistered in the name of the trust­ee in the land re­gister, the ships re­gister or the air­craft re­gister, ref­er­ence to the trust re­la­tion­ship can be made by adding a note.

² Trust re­la­tion­ships af­fect­ing in­tel­lec­tu­al prop­erty rights re­gistered in Switzer­land shall be re­cor­ded on re­quest in the rel­ev­ant re­gister.

³ A trust re­la­tion­ship that is not noted or re­cor­ded is not en­force­able against third parties act­ing in good faith.

Art. 149e

V. For­eign de­cisions

¹ For­eign de­cisions on mat­ters con­cern­ing trust law are re­cog­nised in Switzer­land:

a. if they were rendered by a court that was val­idly des­ig­nated pur­su­ant to Art­icle 149b para­graph 1;

b. if they were rendered in the state in which the de­fend­ant was dom­i­ciled, ha­bitu­ally res­id­ent or had their es­tab­lish­ment;

c. if they were rendered in the state in which the trust had its seat;

d. if they were rendered in the state whose law ap­plies to the trust; or

e. if they are re­cog­nised in the state in which the trust has its seat, provided the de­fend­ant was not dom­i­ciled in Switzer­land.

² Art­icle 165 para­graph 2 ap­plies by ana­logy to for­eign de­cisions re­lat­ing to claims re­gard­ing pub­lic is­sues of equity or debt se­cur­it­ies based on pro­spect­uses, cir­cu­lars or sim­il­ar pub­lic­a­tions.

¹ For the pur­poses of this Act, a com­pany is any or­gan­ised as­so­ci­ation of per­sons and any or­gan­ised unit of as­sets.

² Simple part­ner­ships that have not provided them­selves with an or­gan­isa­tion are gov­erned by the pro­vi­sions of this Act re­lat­ing to the law ap­plic­able to con­tracts (Art. 116 et seq.).

¹ In dis­putes con­cern­ing com­pany law, the Swiss courts at the seat of the com­pany have jur­is­dic­tion to hear ac­tions against the com­pany, its share­hold­ers or mem­bers, or per­sons li­able un­der com­pany law.

² Ac­tions against share­hold­ers or mem­bers or against per­sons li­able un­der com­pany law may also be brought be­fore the Swiss courts at the dom­i­cile or, in the ab­sence of a dom­i­cile, at the ha­bitu­al res­id­ence of the de­fend­ant.

³ Dis­putes re­gard­ing li­ab­il­ity arising out of the pub­lic is­sue of equity or debt se­cur­it­ies may also be brought be­fore the Swiss courts at the place of is­sue. This jur­is­dic­tion may not be ex­cluded by a choice of for­um.

⁴ ...⁹¹

The fol­low­ing courts have jur­is­dic­tion to hear ac­tions against a per­son li­able un­der Art­icle 159 or against the for­eign com­pany for which such per­son is act­ing:

a.

the Swiss courts at the dom­i­cile or, in the ab­sence of a dom­i­cile, at the ha­bitu­al res­id­ence of the de­fend­ant; or

b.

the Swiss courts at the place where the com­pany is ad­min­istered in fact.

For meas­ures in­ten­ded to pro­tect as­sets in Switzer­land of a com­pany with seat abroad, the Swiss ju­di­cial or ad­min­is­trat­ive au­thor­it­ies at the place where the as­sets are loc­ated have jur­is­dic­tion.

¹ Com­pan­ies are gov­erned by the law of the state un­der which they are or­gan­ised, provided they ful­fil the pub­li­city or re­gis­tra­tion re­quire­ments of that law or, where such re­quire­ments do not ex­ist, if they have or­gan­ised them­selves pur­su­ant to the law of that state.

² A com­pany which does not ful­fil these re­quire­ments is gov­erned by the law of the state in which it is ad­min­istered in fact.

Sub­ject to Art­icles 156 to 161, the law ap­plic­able to a com­pany gov­erns in par­tic­u­lar:

a.

the leg­al nature of the com­pany;

b.

its es­tab­lish­ment and dis­sol­u­tion;

c.

its leg­al ca­pa­city and ca­pa­city to act;

d.

its name or busi­ness name;

e.

its or­gan­isa­tion;

f.

the in­tern­al re­la­tion­ships, in­clud­ing the re­la­tion­ships between the com­pany and its mem­bers;

g.

li­ab­il­ity for vi­ol­a­tion of com­pany law;

h.

li­ab­il­ity for the debts of the com­pany;

i.

the power of rep­res­ent­a­tion of the per­sons act­ing on be­half of the com­pany ac­cord­ing to its or­gan­isa­tion.

Claims re­gard­ing pub­lic is­sues of equity or debt se­cur­it­ies based on pro­spect­uses, cir­cu­lars or sim­il­ar pub­lic­a­tions may be based on either the law ap­plic­able to the com­pany or the law of the state where the in­stru­ments were is­sued.

¹ The pro­tec­tion of the name or busi­ness name of com­pan­ies re­gistered in the Swiss com­mer­cial re­gister against in­fringe­ments in Switzer­land is gov­erned by Swiss law.

² The pro­tec­tion of the name or busi­ness name of a com­pany which is not re­gistered in the Swiss com­mer­cial re­gister is gov­erned by the law ap­plic­able to un­fair com­pet­i­tion (Art. 136) or the law ap­plic­able to in­fringe­ments of per­son­al­ity rights (Art. 132, 133 and 139).

A com­pany may not in­voke re­stric­tions of the power of rep­res­ent­a­tion of a body or a rep­res­ent­at­ive that are un­known in the law of the state where the oth­er party has its es­tab­lish­ment or ha­bitu­al res­id­ence, un­less the oth­er party knew or should have known of these re­stric­tions.

If the op­er­a­tions of a com­pany es­tab­lished un­der a for­eign law are man­aged in or from Switzer­land, the li­ab­il­ity of the per­sons act­ing on be­half of that com­pany is gov­erned by Swiss law.

¹ A com­pany which has its seat abroad may have a branch in Switzer­land. The branch is gov­erned by Swiss law.

² The power of rep­res­ent­a­tion of the branch is gov­erned by Swiss law. At least one of the per­sons au­thor­ised to rep­res­ent the branch must be dom­i­ciled in Switzer­land and re­gistered in the Swiss com­mer­cial re­gister.

³ The Fed­er­al Coun­cil ad­opts the im­ple­ment­ing reg­u­la­tions con­cern­ing man­dat­ory re­gis­tra­tion in the com­mer­cial re­gister.

¹ A for­eign com­pany may sub­ject it­self to Swiss law without be­ing li­quid­ated or re-es­tab­lished, provided this is al­lowed un­der the for­eign law gov­ern­ing the com­pany. The com­pany must meet the re­quire­ments of its for­eign law and must be able to ad­apt it­self to one of the forms of or­gan­isa­tion of Swiss law.

² The Fed­er­al Coun­cil may au­thor­ise a com­pany to sub­ject it­self to Swiss law even where the re­quire­ments of its for­eign law are not met, par­tic­u­larly if sig­ni­fic­ant Swiss in­terests are at stake.

¹ A com­pany that is re­quired un­der Swiss law to re­gister in the com­mer­cial re­gister is gov­erned by Swiss law as soon as it proves that the centre of its busi­ness activ­it­ies has been trans­ferred to Switzer­land and that it has ad­ap­ted it­self to one of the forms of or­gan­isa­tion of Swiss law.

² A com­pany that is not re­quired un­der Swiss law to re­gister in the com­mer­cial re­gister is gov­erned by Swiss law as soon as its in­tent to be gov­erned by Swiss law ap­pears clearly, it has a suf­fi­cient con­nec­tion with Switzer­land, and it has ad­ap­ted it­self to one of the forms of or­gan­isa­tion of Swiss law.

³ Be­fore its re­gis­tra­tion in the com­mer­cial re­gister, a com­pany with a share cap­it­al must prove that its cap­it­al is covered in ac­cord­ance with Swiss law by pro­du­cing a re­port is­sued by a li­censed audit ex­pert with­in the mean­ing of the Aud­it­or Over­sight Act of 16 Decem­ber 2005⁹⁴.⁹⁵

¹ A Swiss com­pany may sub­ject it­self to a for­eign law without be­ing li­quid­ated or re-es­tab­lished, provided it meets the re­quire­ments of Swiss law and con­tin­ues to ex­ist un­der the for­eign law.

² The cred­it­ors must be in­vited to file their claims by pub­lic no­ti­fic­a­tion an­noun­cing the forth­com­ing change of the leg­al status of the com­pany. Art­icle 46 of the Mer­gers Act of 3 Oc­to­ber 2003⁹⁷ ap­plies by ana­logy.

³ The pro­vi­sions re­lat­ing to pro­tect­ive meas­ures in the event of in­ter­na­tion­al con­flicts with­in the mean­ing of Art­icle 61 of the Na­tion­al Eco­nom­ic Sup­ply Act of 8 Oc­to­ber 1982⁹⁸ are re­served.

¹ A Swiss com­pany may ac­quire a for­eign com­pany (ab­sorp­tion by im­mig­ra­tion) or form a new Swiss com­pany with a for­eign com­pany (com­bin­a­tion by im­mig­ra­tion), provided the law gov­ern­ing the for­eign com­pany per­mits such a mer­ger and all the re­quire­ments of that law are met.

² All oth­er as­pects of the mer­ger are gov­erned by Swiss Law.

¹ A for­eign com­pany may ac­quire a Swiss com­pany (ab­sorp­tion by emig­ra­tion) or form a new for­eign com­pany with a Swiss com­pany (com­bin­a­tion by emig­ra­tion), provided the Swiss com­pany can prove that:

a.

all of its as­sets and li­ab­il­it­ies will be trans­ferred to the for­eign com­pany with the mer­ger; and

b.

the equity and mem­ber­ship rights will be ad­equately main­tained in the for­eign com­pany.

² The Swiss com­pany must com­ply with all pro­vi­sions of Swiss law ap­plic­able to the trans­fer­ring com­pany.

³ The cred­it­ors must be in­vited to file their claims by pub­lic no­ti­fic­a­tion an­noun­cing the forth­com­ing mer­ger. Art­icle 46 of the Mer­gers Act of 3 Oc­to­ber 2003¹⁰¹ ap­plies by ana­logy.

⁴ All oth­er as­pects of the mer­ger are gov­erned by the law ap­plic­able to the for­eign ac­quir­ing com­pany.

¹ The mer­ger agree­ment must com­ply with the man­dat­ory com­pany law pro­vi­sions of the laws gov­ern­ing the com­pan­ies in­volved, in­clud­ing the pro­vi­sions con­cern­ing form.

² All oth­er as­pects of the mer­ger agree­ment are gov­erned by the law chosen by the parties. In the ab­sence of a choice of law, the mer­ger agree­ment is gov­erned by the law of the state with which the agree­ment has the closest con­nec­tion. Such a con­nec­tion is pre­sumed to ex­ist with the state whose law gov­erns the ac­quir­ing com­pany.

¹ The pro­vi­sions of this Act re­lat­ing to mer­gers of com­pan­ies ap­ply by ana­logy to de­mer­gers of com­pan­ies and to trans­fers of as­sets and li­ab­il­it­ies in­volving a Swiss com­pany and a for­eign com­pany. Art­icle 163b para­graph 3 does not ap­ply to the trans­fer of as­sets and li­ab­il­it­ies.

² All oth­er as­pects of de­mer­gers and trans­fers of as­sets and li­ab­il­it­ies are gov­erned by the law ap­plic­able to the com­pany be­ing de­merged or to the com­pany trans­fer­ring its as­sets and li­ab­il­it­ies to an­oth­er leg­al en­tity.

³ The law gov­ern­ing the com­pany be­ing de­merged is pre­sumed to ap­ply to the di­vi­sion agree­ment un­der the con­di­tions of Art­icle 163c para­graph 2. The same ap­plies, by ana­logy, to the trans­fer of as­sets and li­ab­il­it­ies agree­ment.

¹ The re­gis­tra­tion of a com­pany in the Swiss com­mer­cial re­gister may be de­leted only if a re­port drawn up by a li­censed audit ex­pert con­firms that the claims of the cred­it­ors have either been se­cured or sat­is­fied in ac­cord­ance with Art­icle 46 of the Mer­gers Act of 3 Oc­to­ber 2003¹⁰⁵, or that the cred­it­ors have agreed to the can­cel­la­tion of the re­gis­tra­tion.¹⁰⁶

² If a for­eign com­pany ac­quires a Swiss com­pany, or if it forms a new for­eign com­pany with a Swiss com­pany, or if a Swiss com­pany is de­merged in­to for­eign com­pan­ies, the fol­low­ing ad­di­tion­al re­quire­ments ap­ply:

a.

it needs to be proven that the mer­ger or de­mer­ger has be­come leg­ally val­id pur­su­ant to the law ap­plic­able to the for­eign com­pany; and

b.¹⁰⁷

a li­censed audit ex­pert needs to con­firm that the for­eign com­pany has gran­ted the mem­bers of the Swiss com­pany the equity or mem­ber­ship rights to which they are en­titled, or that the com­pany has made or se­cured com­pens­at­ory pay­ments in their fa­vour.

¹ If a for­eign com­pany ac­quires a Swiss com­pany or forms a new for­eign com­pany with a Swiss com­pany, or if a Swiss com­pany is de­merged in­to for­eign com­pan­ies, an ac­tion re­quest­ing the ex­am­in­a­tion of the equity or mem­ber­ship rights pur­su­ant to Art­icle 105 of the Mer­gers Act of 3 Oc­to­ber 2003¹⁰⁹ may also be brought be­fore the courts at the Swiss seat of the trans­fer­ring en­tity.

² The place of debt en­force­ment and the place of jur­is­dic­tion in Switzer­land re­main val­id for so long as the cred­it­ors and the share­hold­ers have not been sat­is­fied or their claims se­cured.

The sub­mis­sion of a for­eign com­pany to an­oth­er for­eign law as well as a mer­ger, a de­mer­ger or a trans­fer of as­sets and li­ab­il­it­ies between for­eign com­pan­ies are re­cog­nised in Switzer­land, provided it is val­id pur­su­ant to the for­eign laws con­cerned.

¹ For­eign de­cisions re­lat­ing to claims con­cern­ing com­pany law are re­cog­nised in Switzer­land:

a.

if they were rendered or are re­cog­nised in the state of the seat of the com­pany, provided the de­fend­ant was not dom­i­ciled in Switzer­land; or

b.

if they were rendered in the state of the de­fend­ant’s dom­i­cile or ha­bitu­al res­id­ence.

² For­eign de­cisions re­lat­ing to claims con­cern­ing pub­lic is­sues of equity or debt se­cur­it­ies based on pro­spect­uses, cir­cu­lars or sim­il­ar pub­lic­a­tions are re­cog­nised in Switzer­land if they were rendered in the state in which the equity or debt se­cur­it­ies were is­sued, provided the de­fend­ant was not dom­i­ciled in Switzer­land.

¹ A for­eign bank­ruptcy de­cree shall be re­cog­nised in Switzer­land on ap­plic­a­tion of the bank­ruptcy ad­min­is­trat­or, the debt­or or a cred­it­or if:

a.

the de­cision is en­force­able in the state where it was is­sued;

b.

there is no ground to deny re­cog­ni­tion un­der Art­icle 27; and

c.

the de­cision was is­sued:

1.

in the debt­or’s state of dom­i­cile, or

2.

in the state of the centre of the debt­or’s main in­terests, provided the debt­or was not dom­i­ciled in Switzer­land when the for­eign pro­ceed­ings were opened.

² If the debt­or has a branch in Switzer­land, the pro­ced­ure provided for in Art­icle 50 para­graph 1 of the Fed­er­al Act of 11 April 1889¹¹³ on Debt En­force­ment and Bank­ruptcy (DEBA) is per­mit­ted un­til the pub­lic­a­tion of the de­cision on re­cog­ni­tion in ac­cord­ance with Art­icle 169 of this Act.

³ Where pro­ceed­ings un­der Art­icle 50 para­graph 1 DEBA have already been opened and the dead­line un­der Art­icle 250 DEBA has not ex­pired, these pro­ceed­ings shall be aban­doned fol­low­ing re­cog­ni­tion of the for­eign bank­ruptcy de­cree. Claims already filed shall be in­cluded in the sched­ule of claims for the aux­il­i­ary bank­ruptcy pro­ceed­ings in ac­cord­ance with Art­icle 172. The ac­crued pro­ced­ur­al costs are de­ferred to the aux­il­i­ary bank­ruptcy pro­ceed­ings.

¹ Where the debt­or has a branch in Switzer­land re­gistered in the com­mer­cial re­gister, the ap­plic­a­tion for the re­cog­ni­tion of a for­eign bank­ruptcy de­cree must be filed in the court at the loc­a­tion of its seat. In all oth­er cases, the ap­plic­a­tion must be filed in the court at the loc­a­tion of the as­sets in Switzer­land. Art­icle 29 ap­plies by ana­logy.¹¹⁴

² Where the debt­or has two or more branches or if there are as­sets in more than one loc­a­tion, the court where an ap­plic­a­tion was filed first has ex­clus­ive jur­is­dic­tion.¹¹⁵

³ The claims of the bank­rupt debt­or are deemed to be loc­ated at the dom­i­cile of his or her debt­or.

As from the fil­ing of the ap­plic­a­tion for re­cog­ni­tion of the for­eign bank­ruptcy de­cree, the court may, at the re­quest of the ap­plic­ant, or­der con­ser­vat­ory meas­ures as provided for in Art­icles 162 to 165 and 170 DEBA^116,117.

¹ The de­cision on the re­cog­ni­tion of a for­eign bank­ruptcy de­cree shall be pub­lished.

² The de­cision shall be com­mu­nic­ated to the debt en­force­ment and bank­ruptcy of­fice, the land re­gistry, and the com­mer­cial re­gistry at the place where the as­sets are loc­ated and, where ap­pro­pri­ate, to the Swiss Fed­er­al In­sti­tute of In­tel­lec­tu­al Prop­erty¹¹⁸. The same ap­plies to de­cisions con­clud­ing or stay­ing the auxiliarybank­ruptcy pro­ceed­ings, the de­cision to re­voke the bank­ruptcy,and the decision to abstain from auxiliary bankruptcy proceedings.¹¹⁹

¹ Un­less oth­er­wise provided in this Act, the re­cog­ni­tion of a for­eign bank­ruptcy de­cree sub­jects the debt­or’s as­sets loc­ated in Switzer­land to the leg­al con­sequences of bank­ruptcy ac­cord­ing to Swiss law.

² The lim­it­a­tion peri­ods un­der Swiss law start to run from the pub­lic­a­tion of the de­cision grant­ing re­cog­ni­tion.

³ The bank­ruptcy shall be con­duc­ted by sum­mary pro­ced­ure un­less the for­eign bank­ruptcy ad­min­is­trat­or or a cred­it­or in ac­cord­ance with Art­icle 172 para­graph 1 re­quests the bank­ruptcy of­fice to con­duct the or­din­ary pro­ced­ure be­fore the dis­tri­bu­tion of the avail­able as­sets and provides suf­fi­cient se­cur­ity for the an­ti­cip­ated un­re­cov­er­able costs.¹²⁰

¹ An avoid­ance claim is gov­erned by Art­icles 285 to 292 DEBA¹²¹. It may also be ini­ti­ated by the for­eign bank­ruptcy ad­min­is­trat­or or by a cred­it­or en­titled to bring such ac­tion.

² The dead­lines provided for in Art­icles 285–288a and 292 DEBA are cal­cu­lated on the basis of the date on which the for­eign bank­ruptcy pro­ceed­ings were opened.¹²²

¹ The sched­ule of claims shall only in­clude:

a.

the se­cured claims lis­ted in Art­icle 219 DEBA¹²³;

b.

the un­se­cured but priv­ileged claims of cred­it­ors who have their dom­i­cile in Switzer­land; and

c.

the claims arising from li­ab­il­it­ies in­curred for the ac­count of a debt­or's branch re­gistered in the com­mer­cial re­gister.¹²⁴

² Only the cred­it­ors men­tioned in para­graph 1 and the for­eign bank­ruptcy ad­min­is­trat­or may bring the ac­tion to con­test the sched­ule of claims as provided in Art­icle 250 DEBA.¹²⁵

³ If a cred­it­or has already been sat­is­fied in part in for­eign pro­ceed­ings con­nec­ted with the bank­ruptcy, the amount thus ob­tained shall be im­puted, after de­duc­tion of the costs in­curred, on the di­vidend to be paid to such cred­it­or in the Swiss pro­ceed­ings.

¹ After dis­tri­bu­tion of the pro­ceeds in ac­cord­ance with Art­icle 172 para­graph 1, any bal­ance shall be re­mit­ted to the for­eign bank­ruptcy es­tate or to those cred­it­ors that are en­titled to it.

² The bal­ance may only be re­mit­ted after re­cog­ni­tion of the for­eign sched­ule of claims.

³ The Swiss court that has jur­is­dic­tion to re­cog­nise the for­eign bank­ruptcy de­cree also has jur­is­dic­tion to re­cog­nise the for­eign sched­ule of claims. This court shall re­view in par­tic­u­lar wheth­er the cred­it­ors dom­i­ciled in Switzer­land have been in­cluded fairly in the for­eign sched­ule of claims. These cred­it­ors shall be heard.

¹ If a for­eign sched­ule of claims is not re­cog­nised, the bal­ance is dis­trib­uted among the cred­it­ors of the third class ac­cord­ing to Art­icle 219 para­graph 4 DEBA¹²⁶ provided they are dom­i­ciled in Switzer­land.¹²⁷

² The same ap­plies if the sched­ule of claims is not filed for re­cog­ni­tion with­in the time-lim­it set by the court.

¹ At the re­quest of the for­eign bank­ruptcy ad­min­is­trat­or, it may be de­cided not to con­duct aux­il­i­ary bank­ruptcy pro­ceed­ings if no claims in the sense of Art­icle 172 para­graph 1 have been filed.

² Where cred­it­ors dom­i­ciled in Switzer­land have filed claims oth­er than those men­tioned in Art­icle 172 para­graph 1, the court may de­cide not to con­duct aux­il­i­ary bank­ruptcy pro­ceed­ings if ap­pro­pri­ate ac­count is taken of these cred­it­ors’ claims in the for­eign pro­ceed­ings. These creditors shall be heard.

³ The court may make its ab­sten­tion sub­ject to con­di­tions and re­quire­ments.

⁴ Where the court de­cides not to con­duct aux­il­i­ary bank­ruptcy pro­ceed­ings, the for­eign bank­ruptcy ad­min­is­trat­or may, sub­ject to Swiss law, ex­er­cise all powers to which he or she is en­titled un­der the law of the state in which the bank­ruptcy pro­ceed­ings were opened; he or she may in par­tic­u­lar trans­fer as­sets abroad and con­duct lit­ig­a­tion. These powers do not in­clude the per­form­ance of sov­er­eign acts, the use of co­er­cive meas­ures or the right to settle dis­putes.

In pro­ceed­ings that have a fac­tu­al con­nec­tion the au­thor­it­ies and bod­ies con­cerned may co­ordin­ate their activ­it­ies among them­selves and with for­eign au­thor­it­ies and bod­ies.

For­eign judg­ments on avoid­ance claims or oth­er­wise re­lat­ing to acts pre­ju­di­cial to cred­it­ors, which are closely con­nec­ted with a bank­ruptcy de­cree re­cog­nised in Switzer­land, shall be re­cog­nised in ac­cord­ance with Art­icles 25–27 if they were rendered or are re­cog­nised in the state of ori­gin of the bank­ruptcy de­cree and the de­fend­ant was not dom­i­ciled in Switzer­land.

A com­pos­i­tion or a sim­il­ar pro­ced­ure ap­proved by a for­eign au­thor­ity shall be re­cog­nised in Switzer­land. Art­icles 166–170 and 174a–174c ap­ply by ana­logy.¹³¹ Cred­it­ors dom­i­ciled in Switzer­land shall be heard.

¹ The pro­vi­sions of this Chapter ap­ply to ar­bit­ral tribunals that have their seat in Switzer­land if, at the time that the ar­bit­ra­tion agree­ment was con­cluded, at least one of the parties thereto did not have its dom­i­cile, its ha­bitu­al res­id­ence or its seat in Switzer­land.¹³²

² The parties may ex­clude the ap­plic­a­tion of this Chapter by mak­ing a de­clar­a­tion to this ef­fect in the ar­bit­ra­tion agree­ment or a sub­sequent agree­ment, and in­stead agree that the pro­vi­sions of the third part of the CPC¹³³ ap­ply. The de­clar­a­tion must be in the form spe­cified in Art­icle 178 para­graph 1.¹³⁴

³ The seat of the ar­bit­ral tribunal is de­term­ined by the parties, or the ar­bit­ra­tion in­sti­tu­tion des­ig­nated by them, or, fail­ing both, by the ar­bit­ral tribunal¹³⁵ it­self.

¹ Any claim in­volving an eco­nom­ic in­terest may be sub­mit­ted to ar­bit­ra­tion.

² A state, or an en­ter­prise held by or an or­gan­isa­tion con­trolled by a state, that is party to an ar­bit­ra­tion agree­ment, may not in­voke its own law in or­der to con­test its ca­pa­city to ar­bit­rate or the ar­bit­rab­il­ity of a dis­pute covered by the ar­bit­ra­tion agree­ment.

¹ The ar­bit­ra­tion agree­ment must be made in writ­ing or any oth­er means of com­mu­nic­a­tion al­low­ing it to be evid­enced by text.¹³⁷

² As re­gards its sub­stance, an ar­bit­ra­tion agree­ment is val­id if it con­forms either to the law chosen by the parties, to the law gov­ern­ing the sub­ject-mat­ter of the dis­pute, in par­tic­u­lar the law gov­ern­ing the main con­tract, or to Swiss law.

³ The valid­ity of an ar­bit­ra­tion agree­ment may not be con­tested on the grounds that the main con­tract is in­val­id or that the ar­bit­ra­tion agree­ment con­cerns a dis­pute which has not yet aris­en.

⁴ The pro­vi­sions of this Chapter ap­ply by ana­logy to an ar­bit­ra­tion clause in a uni­lat­er­al trans­ac­tion or in art­icles of as­so­ci­ation.¹³⁸

¹ The mem­bers of the ar­bit­ral tribunal shall be ap­poin­ted or re­placed in ac­cord­ance with the agree­ment between the parties. Un­less the parties agree oth­er­wise, the ar­bit­ral tribunal shall com­prise three mem­bers, with the parties each ap­point­ing one mem­ber; the mem­bers shall ap­point a chair­per­son by un­an­im­ous de­cision.

² In the ab­sence of an agree­ment or if the mem­bers of the ar­bit­ral tribunal can­not be ap­poin­ted or re­placed for oth­er reas­ons, the state court where the ar­bit­ral tribunal has its seat may be seized. If the parties have not agreed on a seat or only agreed that the seat of the ar­bit­ral tribunal be in Switzer­land, the first state court seized has jur­is­dic­tion.

³ Where a state court is called upon to ap­point or re­place a mem­ber of the ar­bit­ral tribunal, it shall make the ap­point­ment un­less a sum­mary ex­am­in­a­tion shows that no ar­bit­ra­tion agree­ment ex­ists between the parties.

⁴ The state court shall at the re­quest of a party take the meas­ures re­quired to con­sti­tute the ar­bit­ral tribunal in the event that the parties or mem­bers of the ar­bit­ral tribunal do not ful­fil their ob­lig­a­tions with­in 30 days of be­ing re­ques­ted to do so.

⁵ In the case of a mul­tiple-party dis­pute, the state court may ap­point all the mem­bers of the ar­bit­ral tribunal.

⁶ A per­son who is asked to be­come a mem­ber of the ar­bit­ral tribunal shall without delay dis­close the ex­ist­ence of cir­cum­stances that could give rise to le­git­im­ate doubt as to his or her in­de­pend­ence or im­par­ti­al­ity. This ob­lig­a­tion ap­plies throughout the en­tire pro­ceed­ings.

¹ A mem­ber of the ar­bit­ral tribunal may be chal­lenged:¹⁴¹

a.

if they lack the qual­i­fic­a­tions agreed by the parties;

b.

if there is a ground for chal­lenge in ac­cord­ance with the rules of ar­bit­ra­tion ad­op­ted by the parties; or

c.¹⁴²

if cir­cum­stances ex­ist that give rise to le­git­im­ate doubt as to his or her in­de­pend­ence or im­par­ti­al­ity.

² A party may chal­lenge a mem­ber of the ar­bit­ral tribunal who has been ap­poin­ted by that party or in whose ap­point­ment that party has par­ti­cip­ated only on grounds that have come to their at­ten­tion after the ap­point­ment des­pite ex­er­cising due di­li­gence.¹⁴³

³ ...¹⁴⁴

¹ Un­less the parties have agreed oth­er­wise and if the ar­bit­ra­tion pro­ceed­ings have not yet been con­cluded, writ­ten no­tice of the chal­lenge stat­ing the grounds must be giv­en to the chal­lenged mem­ber of the ar­bit­ral tribunal and the oth­er mem­bers of the ar­bit­ral tribunal with­in 30 days of the date on which the chal­len­ging party be­comes aware of the grounds for the chal­lenge or could have be­come aware there­of had it ex­er­cised due di­li­gence.

² The chal­len­ging party may with­in 30 days of fil­ing the chal­lenge re­quest the state court to re­ject the chal­lenged mem­ber. The state court’s de­cision is fi­nal.

³ Dur­ing the chal­lenge pro­ced­ure, the ar­bit­ral tribunal may con­tin­ue the pro­ceed­ings without ex­clud­ing the chal­lenged mem­ber un­til the de­cision is taken, un­less the parties have agreed oth­er­wise.

¹ Any mem­ber of the ar­bit­ral tribunal may be re­moved with the agree­ment of the parties.

² If a mem­ber of the ar­bit­ral tribunal is un­able to carry out his or her du­ties with­in a reas­on­able time or with due care, and un­less the parties have agreed oth­er­wise, any party may file a writ­ten re­quest with the state court for the mem­ber to be re­moved, stat­ing the grounds. The state court’s de­cision is fi­nal.

The ar­bit­ral pro­ceed­ings be­come pending from the time when one of the parties sub­mits its re­quest to the mem­ber of the ar­bit­ral tribunal des­ig­nated in the ar­bit­ra­tion agree­ment or, in the ab­sence of such des­ig­na­tion, from the time when one of the parties ini­ti­ates the pro­ced­ure for con­sti­tut­ing the ar­bit­ral tribunal.

¹ The parties may de­term­ine the ar­bit­ral pro­ced­ure, either them­selves or by ref­er­ence to ar­bit­ra­tion rules; they may also make the pro­ced­ure sub­ject to a pro­ced­ur­al law of their choice.¹⁴⁸

² Where the parties have not de­term­ined the pro­ced­ure, the ar­bit­ral tribunal shall de­term­ine it to the ex­tent ne­ces­sary, either dir­ectly or by ref­er­ence to a law or to ar­bit­ra­tion rules.

³ Re­gard­less of the pro­ced­ure chosen, the ar­bit­ral tribunal shall guar­an­tee the equal treat­ment of the parties and their right to be heard in ad­versari­al pro­ceed­ings.

⁴ A party that con­tin­ues with the ar­bit­ra­tion pro­ceed­ings without ob­ject­ing im­me­di­ately to a breach of the rules of pro­ced­ure of which it is aware or which it would have been aware had it ex­er­cised due di­li­gence may not in­voke this breach at a later point in the pro­ceed­ings.¹⁴⁹

¹ Un­less the parties have agreed oth­er­wise, the ar­bit­ral tribunal may, at the re­quest of a party, or­der in­ter­im meas­ures or con­ser­vat­ory meas­ures.

² If the party con­cerned does not com­ply vol­un­tar­ily with the meas­ure ordered, the ar­bit­ral tribunal or a party may re­quest the as­sist­ance of the com­pet­ent court. The court shall ap­ply its own law.¹⁵⁰

³ The ar­bit­ral tribunal or the state court¹⁵¹ may make the in­ter­im or con­ser­vat­ory meas­ures sub­ject to the pro­vi­sion of ap­pro­pri­ate se­cur­ity.

¹ The ar­bit­ral tribunal takes the evid­ence it­self.

² Where state leg­al as­sist­ance is re­quired for the tak­ing of evid­ence, the ar­bit­ral tribunal or a party with the con­sent of the ar­bit­ral tribunal may re­quest the par­ti­cip­a­tion of the state court at the seat of the ar­bit­ral tribunal.¹⁵²

³ The state court shall ap­ply its own law. On re­quest, it may ap­ply or take ac­count of oth­er forms of pro­ced­ure.¹⁵³

If any fur­ther as­sist­ance by a state court is re­quired, the court at the seat of the ar­bit­ral tribunal has jur­is­dic­tion.

¹ An ar­bit­ral tribunal with seat abroad or a party to for­eign ar­bit­ra­tion pro­ceed­ings may re­quest the state court at the place where the in­ter­im or con­ser­vat­ory meas­ure is to be ex­ecuted to par­ti­cip­ate. Art­icle 183 para­graphs 2 and 3 ap­ply by ana­logy.

² An ar­bit­ral tribunal with seat abroad or a party to for­eign ar­bit­ra­tion pro­ceed­ings may with con­sent of the ar­bit­ral tribunal re­quest the state court where evid­ence is to be taken to par­ti­cip­ate. Art­icle 184 para­graphs 2 and 3 ap­ply by ana­logy.

¹ The ar­bit­ral tribunal shall de­cide on its own jur­is­dic­tion.

^1bis It shall de­cide on its jur­is­dic­tion without re­gard to any ac­tion hav­ing the same sub­ject mat­ter that is already pending between the same parties be­fore a state court or an­oth­er ar­bit­ral tribunal, un­less there are sub­stan­tial grounds for a stay in pro­ceed­ings.¹⁵⁵

² Any ob­jec­tion to its jur­is­dic­tion must be raised pri­or to any de­fence on the mer­its.

³ The ar­bit­ral tribunal shall, in gen­er­al, de­cide on its jur­is­dic­tion by a pre­lim­in­ary de­cision.

¹ The ar­bit­ral tribunal shall de­cide the dis­pute ac­cord­ing to the rules of law chosen by the parties or, in the ab­sence of such a choice, ac­cord­ing to the rules of law with which the case has the closest con­nec­tion.¹⁵⁷

² The parties may au­thor­ise the ar­bit­ral tribunal to de­cide ex aequo et bono.

Un­less the parties have agreed oth­er­wise, the ar­bit­ral tribunal may render par­tial awards.

¹ The ar­bit­ral award shall be rendered in con­form­ity with the pro­ced­ure and form agreed by the parties.

² In the ab­sence of such an agree­ment, the award shall be made by a ma­jor­ity de­cision or, in the ab­sence of a ma­jor­ity, by the chair­per­son¹⁵⁹. It shall be in writ­ing, reasoned, dated and signed. The sig­na­ture of the chair­per­son suf­fices.

¹ Un­less the parties have agreed oth­er­wise, either party may ap­ply to the ar­bit­ral tribunal with­in 30 days of the award be­ing com­mu­nic­ated to cor­rect ty­po­graph­ic­al and ac­count­ing er­rors in the award, ex­plain spe­cif­ic parts of the award or is­sue a sup­ple­ment­ary award in re­la­tion to claims made in the ar­bit­ra­tion pro­ceed­ings that were not con­sidered in the award. The ar­bit­ral tribunal may it­self make cor­rec­tions, ex­plan­a­tions or ad­di­tions with­in the same dead­line.

² The ap­plic­a­tion does not af­fect the dead­lines for fil­ing ap­peals. A new peri­od for fil­ing an ap­peal in re­la­tion to the cor­rec­ted, ex­plained or sup­ple­men­ted part of the award be­gins from the date on which no­tice of the cor­rec­tion, ex­plan­a­tion or sup­ple­ment is giv­en.

¹ The award is fi­nal from the time when it is com­mu­nic­ated.

² An ar­bit­ral award may be set aside only:

a.

where the sole mem­ber of the ar­bit­ral tribunal¹⁶² was im­prop­erly ap­poin­ted or the ar­bit­ral tribunal im­prop­erly con­sti­tuted;

b.

where the ar­bit­ral tribunal wrongly ac­cep­ted or de­clined jur­is­dic­tion;

c.

where the ar­bit­ral tribunal ruled bey­ond the claims sub­mit­ted to it, or failed to de­cide one of the claims;

d.

where the prin­ciple of equal treat­ment of the parties or their right to be heard in an ad­versary pro­ced­ure were vi­ol­ated;

e.

where the award is in­com­pat­ible with pub­lic policy.

³ As re­gards pre­lim­in­ary awards, set­ting aside pro­ceed­ings may only be ini­ti­ated on the grounds of the above para­graphs 2(a) and 2(b); the time-lim­it runs from the com­mu­nic­a­tion of the award.

⁴ The dead­line for fil­ing the ap­peal amounts to 30 days from the award be­ing com­mu­nic­ated.¹⁶³

¹ A party may re­quest a re­view of an award if:

a.

it has sub­sequently be­come aware of sig­ni­fic­ant facts or un­covered de­cis­ive evid­ence which it could not have pro­duced in the earli­er pro­ceed­ings des­pite ex­er­cising due di­li­gence; the fore­go­ing does not ap­ply to facts or evid­ence that came in­to ex­ist­ence after the award was is­sued;

b.

crim­in­al pro­ceed­ings have es­tab­lished that the ar­bit­ral award was in­flu­enced to the det­ri­ment of the party con­cerned by a felony or mis­de­mean­our, even if no one is con­victed by a crim­in­al court; if crim­in­al pro­ceed­ings are not pos­sible, proof may be provided in some oth­er man­ner;

c.

a ground for a chal­lenge un­der Art­icle 180 para­graph 1 let­ter c only came to light after con­clu­sion of the ar­bit­ra­tion pro­ceed­ings des­pite ex­er­cising due di­li­gence and no oth­er leg­al rem­edy is avail­able.

² The re­quest for a re­view must be filed with­in 90 days of the grounds for re­view com­ing to light. A re­view may not be re­ques­ted more than ten years after the award be­comes leg­ally bind­ing, ex­cept in the case of para­graph 1 let­ter b.

The only ap­peal au­thor­ity is the Swiss Fed­er­al Su­preme Court. The pro­ced­ures are gov­erned by Art­icles 77 and 119a of the Fed­er­al Su­preme Court Act of 17 June 2005¹⁶⁶.

¹ If none of the parties has their dom­i­cile, ha­bitu­al res­id­ence or seat in Switzer­land, they may, by a de­clar­a­tion in the ar­bit­ra­tion agree­ment or by sub­sequent agree­ment, wholly or partly ex­clude all ap­peals against ar­bit­ral awards; the right to a re­view un­der Art­icle 190a para­graph 1 let­ter b may not be waived. The agree­ment re­quires the form spe­cified in Art­icle 178 para­graph 1.¹⁶⁷

² Where the parties have ex­cluded all set­ting aside pro­ceed­ings and where the awards are to be en­forced in Switzer­land, the New York Con­ven­tion of 10 June 1958¹⁶⁸ on the Re­cog­ni­tion and En­force­ment of For­eign Ar­bit­ral Awards ap­plies by ana­logy.

¹ Each party may at its own ex­pense de­pos­it a copy of the award with the state court at the seat of the ar­bit­ral tribunal.¹⁷⁰

² At the re­quest of a party, the state court at the seat of the ar­bit­ral tribunal shall cer­ti­fy the en­force­ab­il­ity of the award.¹⁷¹

³ At the re­quest of a party, the ar­bit­ral tribunal shall cer­ti­fy that the award has been made in con­form­ity with the pro­vi­sions of this Act; such cer­ti­fic­ate has the same ef­fect as the de­pos­it of the award.

The re­cog­ni­tion and en­force­ment of for­eign ar­bit­ral awards is gov­erned by the New York Con­ven­tion of 10 June 1958¹⁷² on the Re­cog­ni­tion and En­force­ment of For­eign Ar­bit­ral Awards.

The cur­rent le­gis­la­tion that is re­pealed or amend­ments thereto are lis­ted in the An­nex, which forms part of this Act.

¹ Facts or leg­al acts which came in­to be­ing and pro­duced all their ef­fects be­fore the com­mence­ment of this Act are gov­erned by the law pre­vi­ously in force.

² Facts or leg­al acts which came in­to be­ing be­fore the com­mence­ment of this Act, but which con­tin­ue to pro­duce leg­al ef­fects, are gov­erned by the law pre­vi­ously in force for the peri­od pri­or to the com­mence­ment date. Their ef­fects bey­ond that date are gov­erned by this Act.

¹ The Swiss ju­di­cial or ad­min­is­trat­ive au­thor­it­ies val­idly seized of ac­tions or ap­plic­a­tions made be­fore the com­mence­ment of this Act shall con­tin­ue to have jur­is­dic­tion even if this Act does no longer provide for their jur­is­dic­tion.

² It is pos­sible to bring again, after the com­mence­ment of this Act, ac­tions or ap­plic­a­tions dis­missed for lack of jur­is­dic­tion by the Swiss ju­di­cial or ad­min­is­trat­ive au­thor­it­ies be­fore that date if the jur­is­dic­tion of a Swiss court or au­thor­ity is provided for in this Act and the claim may still be as­ser­ted.

This Act de­term­ines the law to be ap­plied to ac­tions and ap­plic­a­tions pending at first in­stance on the date of its com­mence­ment.

Ap­plic­a­tions for the re­cog­ni­tion or en­force­ment of for­eign de­cisions pending on the com­mence­ment of this Act are gov­erned by this Act as re­gards the con­di­tions for re­cog­ni­tion and en­force­ment.

¹ This Act is sub­ject to an op­tion­al ref­er­en­dum.

² The Fed­er­al Coun­cil shall de­term­ine the com­mence­ment date.

Com­mence­ment date: 1 Janu­ary 1989¹⁷³