1 (a). What are the general principles of the treatment of IP license agreements in insolvency proceedings? Is there a difference depending on the type of proceeding (e.g., a court-appointed receivership, a bankruptcy, a restructuring, etc.)?
The rule is that all assets belonging to the debtor which are transferable, realizable and seizable constitute assets that can be liquidated in the course of insolvency proceedings. IP rights, including rights conferred by license, are generally transferable and therefore qualify as assets in insolvency proceedings. As a result, IP license agreements are subject to insolvency proceedings.
Swiss insolvency law allows for private restructuring measures and composition proceedings. While in composition proceedings the restructuring measures are supervised by the court, both options allow for flexibility as to the treatment of IP license agreements. When insolvency proceedings are initiated, however, the debtor loses all capacity to dispose of the assets. The bankrupt estate is deemed a legal entity whose assets and rights, including the IP license agreement, are represented by the bankruptcy administrator.1 (b). What are the laws governing the treatment of IP license agreements in insolvency proceedings?
Both the Swiss Code of Obligations as well as the Swiss Debt Enforcement and Bankruptcy Act ("Bankruptcy Act") are the most relevant laws to consider. Furthermore, case law and doctrine play an important role when interpreting license agreements in general and specifically when assessing the treatment of such agreements in insolvency proceedings.
This is because license agreements are not explicitly regulated by Swiss law. This lack of specific rules raises questions of interpretation and possible analogies to similar types of contracts (such as leases) that are in fact subject to specific rules. The particularities of the individual IP license agreement influence the legal assessment and resulting treatment in insolvency proceedings.