After having received the debt enforcement request (see question 5), the debt enforcement office will serve an order for payment ("Zahlungsbefehl" / "Commandement de payer" / "Precetto esecutivo") to the debtor.
Upon or within a period of ten days from receipt of the order for payment, the debtor may file an opposition ("Rechtsvorschlag" / "Opposition" / "Opposizione"). The debtor is not required to state any reasons for such opposition.
In case of an opposition, debt enforcement proceedings are halted until the opposition is eliminated by a competent court at the request of the creditor. The proceedings for the elimination of an opposition depend on the basis of the claim:
a) If the claim is based on an acknowledgment of debt signed by the debtor (see question 4), the creditor can proceed with fast-track procedures under the DEBA ("provisorische Rechtsöffnung" / "mainlevée provisoire" / "rigetto provvisorio"). The competent court will eliminate the opposition unless the debtor is able to raise credible objections against the acknowledgment of debt or the claims covered by such acknowledgment of debt. The proceedings are usually written; oral evidence is generally inadmissible. No conciliation proceedings take place.
b) If the claim is based on an enforceable Swiss or foreign judicial decision, court settlement, or an arbitral award, the creditor can proceed with fast-track procedures under the DEBA ("definitive Rechtsöffnung" / "mainlevée definitive" / "rigetto definitive"). The competent court will eliminate the opposition unless the debtor is able to provide documentary proof that the claim has been satisfied, deferred, or become time-barred since the judicial decision or arbitral award has been rendered or the court settlement has been concluded. The proceedings are usually written; oral evidence is generally inadmissible. No conciliation proceedings take place.
c) In all other cases, or if fast-track proceedings under the DEBA have failed, the creditor has to initiate proceedings on the merits, i.e., to file an action for payment in accordance with the CPC (or initiate arbitration, if applicable). In such an action, it is important for the creditor to petition explicitly for the elimination of the opposition in the debt enforcement proceedings if proceedings are conducted before a Swiss court. By contrast, foreign courts and arbitrators cannot eliminate an opposition themselves, so that foreign court and arbitration proceedings will need to be followed by fast-track proceedings under the DEBA in order for the opposition to be eliminated on the basis of the foreign court decision or arbitral award.
Before being able to file an action for payment with a competent Swiss court, the creditor generally has to go through mandatory conciliation proceedings. The initiation of conciliation proceedings is very simple; at this stage, the creditor does not yet have to substantiate and justify its claim. Furthermore, in a European context, the initiation of conciliation proceedings is sufficient to seize a "court" in terms of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (better known as "Lugano Convention"). This means that the same claim cannot be brought before the courts of another state by means of an action for negative declaratory relief filed by the debtor.
No separate conciliation proceedings take place in cantons with a specialized commercial court, or if parties agree on the adjudication of the dispute by the higher cantonal court (see question 2), or if the creditor opts for summary procedures for clear cases.
The type of procedure generally depends on the amount due, i.e., whether the claim reaches the threshold of CHF 30,000 (see question 2).
- Ordinary procedures start with the filling of a full-fledged written statement of claim, followed by the filing of a written statement of defense. The further procedural steps depend on the procedural orders of the judge in charge of the matter.
- In simplified procedures, the creditor may file a full-fledged statement of claim, including the grounds for the claim, or a simplified statement of claims with, in essence, the petitions and a mere description of the matter in dispute. The continuation of the proceedings depends on whether the creditor has filed a full-fledged or simplified statement of claim.
- Irrespective of the amount due, the creditor can proceed with summary procedures for clear cases in terms of the CPC, provided that 1.) the facts are not contested or can be proven immediately through documents, and 2.) the legal situation is clear. If the court confirms the existence of a claim, the decision has claim preclusive effect ("res judicata"). By contrast, if the court is of the opinion that the requirements for a clear case are not met, it will dismiss the case without prejudice so that the creditor can still initiate ordinary or simplified procedures.
It is important to keep in mind that an action for payment must be denominated in the currency of the claim that shall be enforced. Unlike for a debt enforcement request, it must not be converted into Swiss francs in the petitions.
In case the debtor should not file a timely opposition, or the creditor has successfully eliminated such opposition, the creditor can require the debt enforcement office to proceed with the debt enforcement proceedings ("Fortsetzungsbegehren" / "réquisition de continuer la poursuite" / "domanda di continuazione").
The further course of the debt enforcement proceedings then depends on whether the debtor is registered in the commercial register (→ bankruptcy proceedings) or not (→ attachment of specific assets).
With regard to debtors registered in the commercial register, the creditor will need to file a bankruptcy application against the debtor with the competent court and pay an advance on the costs of the bankruptcy proceedings. In order to avoid these costs, it might be helpful to wait until another creditor files a bankruptcy application. For that purpose, it is helpful to consult the extract from the debt enforcement register regarding the debtor (see question 4); in case numerous creditors have already filed debt enforcement requests, it is likely that another creditor might make the first move and advance the costs of bankruptcy proceedings.