Facts
On December 11, 2018, B. AG, a company from the software/IT industry with 70 employees, filed a request for a moratorium. On December 13, 2018, the Regional Court of Bern-Mittelland granted a provisional moratorium for two months and appointed C. as the provisional administrator.
On December 19, 2018, the administrator requested that the debtor in composition proceedings be authorized to sell 100% of the shares of its newly founded subsidiary B. [Switzerland AG] to E. AG for the price of 1.3 million Swiss francs. The Composition Court approved this request.
On January 29, 2019, the Composition Court extended the provisional moratorium for another two months. On April 2, 2019, it granted the definitive composition moratorium for six months.
A. AG as a creditor filed an appeal against the definitive moratorium. The High Court of the Canton of Bern revoked the definitive moratorium and opened bankruptcy proceedings over B. AG on September 16, 2019.
A. AG then filed a civil law appeal with the Federal Supreme Court. It demanded that the bankruptcy should have been opened as early as December 13, 2018, and that the rulings of the Composition Court of December 13, 2018, December 19, 2018, and January 29, 2019, be declared null and void.
Considerations
The Federal Supreme Court dismissed the appeal.
It stated that the granting of the provisional moratorium by the Composition Court is not subject to appeal. While erroneous decisions can be considered null and void in exceptional cases if the defect is particularly serious and the legal certainty is not seriously endangered, the Federal Supreme Court saw no indications of such a serious and obvious defect in the present case.
The Federal Supreme Court emphasized that the Composition Court has a margin of discretion when granting the provisional moratorium. It merely has to examine whether it is…