Recognition of a Foreign Bankruptcy and Avoidance Action by the Foreign Insolvency Administrator

Facts

The District Court of Ludwigsburg in Germany opened insolvency proceedings over the company Z. GmbH on April 1, 2004. Insolvency administrator Y. was appointed. At the request of the insolvency administrator, the President of the Civil Court of the Seebezirk on May 29, 2006 ordered the recognition of the insolvency decision according to Art. 166 et seq. PILA and instructed the Bankruptcy Office of the Canton of Freiburg with the execution.

On August 25, 2006, the insolvency administrator filed an avoidance action pursuant to Art. 285 et seq. DEBA against X. GmbH with the Civil Court of the Seebezirk. He claimed that X. GmbH had received advisory fees while Z. GmbH was already over-indebted.

The Civil Court of the Seebezirk affirmed the timeliness of the avoidance action and the standing of the insolvency administrator. X. GmbH unsuccessfully filed a cantonal appeal against this. It then filed a civil law appeal with the Federal Supreme Court.

Considerations

The Federal Supreme Court dismissed the appeal. It stated that under Art. 171 PILA, the foreign bankruptcy administration can file the avoidance action, provided that the Swiss bankruptcy office and the privileged creditors have waived the assertion. The appellant had not challenged these requirements.

Furthermore, the insolvency administrator is…