Facts
The United States Bankruptcy Court for the Southern District in New York opened bankruptcy proceedings against Lehman Brothers Holdings Inc. and other American companies of the same group on September 15, 2008. On January 30, 2009, the court of first instance of the Netherlands Antilles on the island of Curaçao opened bankruptcy proceedings against Lehman Brothers Securities N.V. (LBS) and appointed Michiel R. B. Gorsira as the bankruptcy administrator.
On September 21, 2010, Gorsira and the LBS bankruptcy estate filed a request with the single judge of the District Court of Zurich for the appointment of an administrator for LBS, so that the administrator could assert and collect LBS's claims against Lehman Brothers Finance AG (LBF) domiciled in Zurich. The request was rejected by the single judge and the Cantonal Court of Zurich.
Gorsira and LBS appealed these decisions to the Federal Supreme Court in civil matters.
Considerations
The Federal Supreme Court dismisses the appeal. Swiss international bankruptcy law is based on the "relaxed" principle of territoriality. A foreign bankruptcy estate that, due to the lack of reciprocity under Art. 166 para. 1 lit. c PILA, does not have the capacity to sue in Switzerland, cannot remedy this deficiency by requesting the appointment of an administrator by analogy to Art. 731b para. 1 no. 2 CO.
The system conceived by the…