Beat Mumenthaler is a partner and member of Pestalozzi’s Litigation & Arbitration Group in Geneva. Within his litigation and arbitration practice, Beat focuses on representing international corporate and private clients in cross-border litigation, insolvency and arbitration cases.
Beat's litigation activity involves in particular representation and advice to clients active in the field of commodity trading, shipping, transportation and all aspects of commercial and contract law. He also acts as arbitrator or co-arbitrator in proceedings under various arbitration rules (such as ICC Rules and Swiss Rules). Moreover, Beat has specialized in insolvency law and has gained experience in national and cross-border bankruptcies, national and international freezing orders and asset tracing in general. His practice includes international complex recoveries involving the enforcement of foreign judgments, arbitral awards and bankruptcy orders. He also sits on supervisory bodies of bankruptcies.
Following his studies at the Scuola Svizzera di Milano, Italy and at the University of Berne, Switzerland, Beat was admitted as an attorney at law in 1990 to the Berne Bar (German speaking part of Switzerland), in 1991 to the Geneva Bar (French speaking part of Switzerland) and in 1998 to the Ticino Bar (Italian speaking part of Switzerland). Prior to joining Pestalozzi, Beat also worked as an international associate for WilmerHale in London and as a partner in a major international Geneva law firm. In 2014 and 2016, Beat attended the High Performance Leadership Program at the IMD in Lausanne, Switzerland.
In 2019 the Private International Law Act was revised with the aim of improving and facilitating the recognition and enforcement of foreign bankruptcy rulings. Foreign liquidators can now forgo the previously mandatory ancillary bankruptcy proceedings by filing a petition with the Swiss courts. Recent experiences have shown that the Swiss courts will normally grant such leave if they are satisfied that no privileged or secured creditors in Switzerland exist.
Company boards of directors have a duty to continuously monitor the company's financial situation and take certain measures if it gets into financial difficulties. Given the extraordinary circumstances caused by the COVID-19 pandemic, the government has temporarily suspended their duty to notify the bankruptcy court in the event of imminent overindebtedness where there is a possibility that this situation can be remedied after the crisis.
Originally, unlike in other jurisdictions, the purpose of a moratorium in Switzerland was not necessarily to continue doing business, but rather to find a better way to liquidate a company; however, this has changed as a result of the COVID-19 crisis. There is now another type of moratorium under Swiss law (although probably only until 20 October 2020), which is intended to promote restructuring.
The general view in Switzerland is that cryptocurrencies are intangible assets sui generis and as such can be subject to regular debt enforcement and insolvency proceedings in Switzerland (provided that these cryptocurrencies have a financial value). This article highlights the particularities to be considered when cryptocurrencies are the target of an attachment procedure (ie, a freezing order) in Switzerland.
The recent insolvency of German-Swiss cryptocurrency mining venture Envion AG inevitably begs the question of how cryptocurrencies should be treated in debt enforcement and insolvency proceedings. Further, the fact that cryptocurrencies have a number of particularities which distinguish them from other asset categories raises numerous questions relating to (for example) the seizure, attachment and liquidation of cryptocurrencies from a Swiss insolvency law perspective.
In June 2018 the House of Representatives narrowly voted to support a bill which proposes additional protection from claw-back actions for creditors which grant loans that are pre‑approved by an insolvency administrator. While the next steps in the legislative process are unclear, the House of Representatives will likely reopen the debate on this bill in its next session in Summer 2019.
A number of revisions to the Private International Law Act and the Debt Enforcement Bankruptcy Act recently entered into force. The revisions aim to improve and facilitate the recognition and enforcement of foreign bankruptcy rulings and enhance protection against unjustified debt enforcement proceedings. Significantly, Swiss law now recognises foreign bankruptcies opened at the bankrupt's seat, registered office or centre of main interest.