The attachment of a debtor's assets is a very convenient
tool for securing the recovery of an outstanding claim. Besides
conventional assets, such as bank accounts or real estate, the
creditor may also consider attaching more exotic items owned by
the debtor: luxury cars, artworks or, why not, a private jet.
We set out below the key requirements and certain practical
aspects to consider when seeking the attachment of an aircraft
located in Switzerland.
The requirements for attaching an aircraft: two different
Under Swiss law, outside criminal proceedings, the
attachment of assets in view of securing a claim is governed by
the Debt Enforcement and Bankruptcy Act (DEBA). The general
conditions that the creditor must establish, on a prima
facie basis, for an attachment to be ordered are as
- the existence of its claim that must be
due and unsecured;
- a ground for attachment; and,
- the existence of assets belonging to the
debtor in Switzerland.
The grounds for attachment are exhaustively listed by DEBA
- The debtor has no fixed domicile.
- The debtor deliberately evades his/her obligations,
removes his/her assets, leaves the country or intends to do
- The debtor's presence on Swiss soil is only
- The debtor has no residence in
Switzerland, provided that there is no other ground for
attachment and the claim has a sufficient link with
Switzerland or is based on an acknowledgement of debt.
- The creditor has obtained a definitive or
provisional certificate of loss against the debto.
- The creditor holds an enforceable judgment.
As a matter of principle, civil attachment under Swiss law
may only encompass assets legally owned by the debtor. It is
only under exceptional circumstances that the attachment may
extend to assets held in the name of a third party (company,
fiduciary, and so on).
Whenever the attachment relates to an aircraft, certain
specific provisions set forth in the Aviation Act (AA) will
apply. It is worth noting that the requirements for an
attachment under the AA are less strict compared to the DEBA;
in particular, the creditor does not need to render likely the
existence of any particular grounds for the attachment.
Moreover, the attachment under the AA can be ordered even if
the claim is already secured. The possibility to seek an
aircraft attachment under the AA is, however, subject to other
restrictions. Indeed, it may only be ordered provided that no
judgment has yet acknowledged the creditor's underlying claim.
Further, the attachment may only target Swiss and foreign
aircrafts landing or parked in Switzerland, provided that the
jurisdiction where the aircraft is registered ensures
reciprocity. Finally, the AA ring-fences specific types of
aircrafts from any conservatory measures, such as aircrafts
allocated to the exclusive service of a state, as well as
aircrafts of airline companies operating public
The rules of the AA are deemed lex specialis and
therefore prevail on the DEBA. However, whenever the AA does
not apply, notably if the creditor holds an enforceable
judgment against the debtor or in case the attachment relates
to a foreign aircraft registered in a jurisdiction that does
not grant reciprocity to Switzerland, the DEBA will solely
Practical aspects and risks to consider
The attachment judge renders his decision on an ex
parte basis. The attachment order may be subject to the
performance by the creditor of an upfront bond (usually set at
around 10% of the claim amount) as security for any loss that
the debtor or third parties may suffer in case the attachment
proves unjustified. If the attachment is granted, the debtor
will be heard at a later stage, notably after the enforcement
of the attachment order by the competent authority. However, if
a debtor anticipates that its assets might be the target of an
attachment, he may file a preemptive (protective) brief with
the relevant court, arguing ahead of the creditor why any
attachment request should be dismissed.
The attachment of an aircraft is implemented by the
immediate service of the judge's order on the relevant Swiss
airport, respectively the relevant charter company in the case
of a private jet, for the purposes of preventing the aircraft's
takeoff. The creditor will also be requested to bear upfront
costs related to the maintenance (unless a contract entered
into by the debtor covers such maintenance costs) and parking
of the aircraft. Such costs can be substantial depending on the
type of aircraft. Moreover, the creditor faces the risk of
liability claims in case the aircraft is damaged as a result of
Once granted, the attachment must be validated by the
creditor within the allocated deadline, failing which the
attachment will be automatically lifted. The validation occurs
with the filing of a claim on the merits before the competent
court, in Switzerland or abroad. Alternatively, when the
attachment is based on the DEBA, the validation can also occur
by initiating debt collection proceedings in Switzerland. This
option is often preferred for cost-efficiency purposes.
Switzerland is an important hub in international air
traffic, and the country attracts many wealthy individuals
travelling with their private jet. Against this backdrop, the
attachment of an aircraft belonging to a debtor might be an
interesting path to explore in the context of claim recovery
efforts. The attachment of an aircraft may indeed favour a
prompt settlement, however creditors should be aware that this
comes along with certain legal hurdles and is not totally
risk-free from a financial perspective.
|Aurélie Conrad Hari