This chapter investigates the treatment of executory contracts under Swiss corporate insolvency law and the factors that influenced the evolution of the law with reference to these and related contracts. Legal provisions concerning the treatment of executory contracts are very rare in Swiss insolvency law. The administrator’s right to decide on the fate of an executory contract is a fundamental rule of Swiss insolvency law. In principle, an insolvency proceeding has no direct effect on the validity of contracts. The contractual relationship continues in insolvency. Special rules apply in the composition procedure and with reference to contractual remedies agreed by the parties in solvent times. With reference to reforms, it can be generally observed that the main source of reform has been through parliamentary and governmental initiatives, notably coming about in the aftermath of the Swissair insolvency case in 2001. The new reforms have regularly drawn parallels with the Chapter 11 procedure of U.S. law. To a lesser extent, the legislator cites the influence of the UNCITRAL Legislative Guide on Insolvency Law and various other jurisdictions. Nevertheless, it is difficult to establish the main trends surrounding executory contracts.
Patrick Keinert and Heinz Vallender
The Insolvency Statute entered into force in 1999. This statute introduced the concept of discharge for natural persons to help reintegrate the debtor into the national economy. As a result of the 1999 Statute, there are now two possible avenues for natural persons: standard proceedings and consumer proceedings. The differences between standard proceedings and consumer proceedings have been mitigated following the entry into force of the Insolvency Reform 2013. Still to this day, the main difference is that a consumer must go through two additional stages before a comparable standard proceedings. Over the past few years, there have been a number of minor changes, and even more public proposals for amendment, concerning consumer insolvencies. The high number of proposals highlights the dynamism of this area of law and its importance for consumers.