Facts
On October 5, 2001, SAirGroup AG and SAirLines AG entered into a moratorium. The State of Belgium, Société Fédérale de Participations et d'Investissement (S.F.P.I.) SA, and SA Zephyr-Fin, all three Sabena shareholders, had filed claims amounting to several billion francs. These claims were not admitted by the liquidators in the collocation plan.
The creditors filed a complaint against the rejecting collocation orders and demanded that the registered claims be noted pro memoria in the collocation plan for CHF 1.- until the final settlement of the lawsuit they had filed in Belgium. However, the Federal Supreme Court confirmed the competence of the liquidators to decide on the collocation.
The creditors filed a lawsuit with the District Court of Zurich pursuant to Art. 250 para. 1 DEBA against the bankruptcy estates of SAirGroup AG and SAirLines AG. They demanded the collocation of their claims in the Third Class. In the appeal proceedings, they submitted the judgment of the Cour d'Appel de Bruxelles of January 27, 2011, in which some claims were partially upheld, partially dismissed, and the assessment of further claims was suspended until the conclusion of the pending criminal proceedings in Belgium.
Considerations
The Federal Supreme Court dismissed the civil law appeal. It concluded that the Lugano Convention does not constitute an obstacle to deciding on the collocation in Switzerland as the state of the opening of insolvency proceedings, even in the case of a lawsuit already pending abroad against the debtor regarding a claim to be collated.
The Federal Supreme Court stated that the collocation procedure as an intermediate dispute in enforcement proceedings conducted in Switzerland is to be assessed by the authorities and courts competent in Switzerland. The Belgian judgment is not binding on the Swiss collocation judge, as…