Facts
By order of the District Court of Offenburg dated December 30, 2004, insolvency proceedings were opened against the German company Z. GmbH. The insolvency administrator then asserted a claim against the Swiss company X. AG before the Cantonal Court of Glarus. The President of the Cantonal Court of Glarus recognized the German bankruptcy decree for the territory of Switzerland.
X. AG filed a complaint against the recognition of the German bankruptcy and requested that the alleged claim from the guarantee be removed from the inventory or included in the collocation plan. The supervisory authority did not enter into the complaint.
By order dated April 27, 2010, the Bankruptcy Office of Glarus assigned the inventoried claim to the German insolvency administrator by analogy with Art. 260 of the Swiss Debt Enforcement and Bankruptcy Act (SchKG), on the condition that it report the result to the Bankruptcy Office and deliver the proceeds of the litigation for distribution in accordance with Art. 173 and 174 of the Swiss Federal Act on Private International Law (IPRG).
X. AG filed a complaint against the assignment of the claim, which was dismissed by the Federal Supreme Court.
Considerations
The Federal Supreme Court states that upon recognition of a foreign bankruptcy decree for the territory of Switzerland, the bankruptcy law consequences of Swiss law apply, unless the provisions of the IPRG provide otherwise. The procedure carried out in Switzerland is referred to as a "partial bankruptcy".
In the partial bankruptcy, the Swiss bankruptcy office is responsible for the administration of the partial estate and the collection of due claims. Disputed claims are normally decided by the second creditors' meeting, which, however, does not exist in the partial bankruptcy.
If the creditors' collective waives the enforcement of rights, each individual creditor…