Facts
On 7 November 2016, J. Ltd (the arrest creditor) filed an application for an arrest with the District Court of Zurich against B. Ltd (the arrest debtor). The District Court granted the arrest on 10 November 2016. The arrest debtor filed an opposition to the arrest order on 16 January 2017. The District Court dismissed the opposition. The arrest debtor then appealed to the High Court of the Canton of Zurich, which revoked the arrest order.
With an appeal to the Federal Supreme Court, J. Ltd requested that the judgment of the High Court be overturned and the arrest opposition decision and the arrest order be confirmed. The Federal Supreme Court had to address the question of whether it is compatible with Art. 9 of the Federal Constitution to allow improper noven in the appeal proceedings against the arrest opposition decision, based on Art. 278 para. 3 sentence 2 of the Debt Enforcement and Bankruptcy Act (SchKG).
Considerations
The Federal Supreme Court concluded that both proper and improper noven are considered "new facts" within the meaning of Art. 278 para. 3 sentence 2 SchKG. Improper noven are facts and evidence that already existed before the opposition decision.
This interpretation results from a comprehensive consideration of the systematic and teleological considerations of the law. The historical interpretation does not reveal anything that contradicts this view. The admission of improper noven is in line with numerous scholarly…