Switzerland is generally a difficult jurisdiction in which to obtain information about another party’s assets due to strict privacy rules and culture.
Publicly available information is limited and does not include judgments.
It should also be mentioned that Article 271 of the Swiss Penal Code (the Swiss "blocking statute"), which protects Swiss sovereignty, severely limits the possibility of obtaining evidence in Switzerland in support of foreign proceedings or by foreign officeholders such as liquidators of a foreign insolvency.
1.1.1 Public Information
Public information is limited to the following two sources:
Judgments of first instance are generally not public, and only an action based on the Data Protection Act may, in some cases, allow access to a version of the judgment, in which the names of the parties are usually redacted. Judgments of appeal are published with a redaction of the names of the parties (with the exception of a few "famous cases") on the websites of the Federal Court and the cantonal courts (links available on the Federal Court’s website).
184.108.40.206 Cantonal Registers of Commerce
All persons or entities established in Switzerland performing a trading, manufacturing or other business activity must be registered with the cantonal Register of Commerce at their headquarters or place of business. Share corporations, limited liability corporations and co-operative corporations only come into existence when they are registered with the Register of Commerce. Branch offices of Swiss and foreign business organisations must also be registered at their place of business.
The cantonal Register of Commerce contains basic information about these persons or entities, such as the date of creation, the type of activity (corporate objective), the persons empowered to represent it, the amount and type of registered capital of share corporations, and the identities and addresses of their directors and managers. All changes must be registered.
All new entries are published in the Swiss Commercial Gazette and the respective cantonal Official Gazettes.
Search by director is not available on the official websites, but is provided through private websites requiring a subscription (such as www.moneyhouse.ch).
It is possible to order a copy by post or email of the documents provided to the Register of Commerce as documentary evidence to obtain a registration or amend it. It should be noted that it is customary to only file excerpts of general meeting of shareholders' or board of directors' minutes, certified by the president of the board of directors. Consequently, the list of shareholders or directors present or represented is usually not filed with the Register of Commerce.
220.127.116.11 Cantonal land registers
Although the legislation applicable to land registers in Switzerland is essentially governed by federal law, there is no central land register for the entire country. Instead, the cantons keep their records in their own land registers. A search engine to identify which land register is competent for a certain locality is available at: www.rnrf.ch/fra/gru.php.
Some land registers allow the search of basic information through their website; others require a contact by email or letter.
A person with evidence of a legitimate interest, such as a claim or a judgment to enforce, may require the competent land register to indicate whether a certain person owns a property within its territory.
1.1.2 Access to Commercial Accounts
Pursuant to Article 957 of the Swiss Code of Obligations (SCO), any person or company who has to register with the Register of Commerce must hold commercial accounts.
The accounting records and the accounting vouchers, together with the annual report and the audit report, must be retained for ten years following the expiry of the financial year (Article 958f(1), SCO).
Corporations that have issued bonds or are listed on a stock market must publish or provide on request their annual accounts and consolidated accounts together with the audit reports (Article 958e(1), SCO).
For other undertakings, creditors with a legitimate interest may ask to inspect the annual report and the audit reports (Article 958e(2), SCO).
Swiss law identifies different categories of judgments.
2.1.1 Final, Interlocutory and Partial Judgments
The judgment is final when it puts an end to the proceedings, whether by a decision on the merits (on substantive law grounds) or by a decision of dismissal (on procedural grounds).
The judgment is interlocutory when the court of appeal could take a contrary decision that would put an end to the proceedings and would allow an appreciable saving of time or costs. The interlocutory judgment settles, without ending the proceedings, either a substantive preliminary question or a procedural question (see pretrial issues).
The judgment is partial when the court rules on part of the case on the merits without ending the proceedings.
2.1.2 Judgment on the Merits and Procedural Judgment
A judgment on the merits of the case decides either on the claim (admission or rejection of the action) or on a material preliminary question (admission or rejection of a substantive legal objection).
A procedural judgment is the pronouncement by which the judge decides whether they are authorised to enter into the merits of the case and, consequently, to render a judgment on the merits at a later date. The court issues either a decision of dismissal if a pretrial issue is missing, or an admissibility decision if it considers the challenge to the existence of a pretrial issue to be unfounded.
2.1.3 Contradictory Judgment and Judgment by Default
A contradictory judgment is given when both parties have been heard by the judge before the decision is made.
A decision by default is given when the defendant does not appear at the trial and the judge decides without hearing them.
2.1.4 Condemnatory, Formative or Declaratory Judgments
The condemnatory judgment corresponds to the condemnatory action that condemns the defendant to performance.
The formative judgment corresponds to the formative action that creates, modifies or removes the right that is the subject of the case.
The declaratory judgment corresponds to the declaratory action that establishes the existence of the right invoked by the claimant.
The Civil Procedure Code (CPC) deals specifically only with:
Interim measures are to ensure the subsequent compulsory execution of a right, to provisionally settle a legal situation before the court has ruled on the merits of the case or to taking evidence today that could disappear tomorrow. They do not have the force of res judicata.
Ex parte interim measures are issued in cases of urgency; they differ from (ordinary) interim measures only in that they are issued without the opposing party being heard beforehand. If the court grants such measures, it must then promptly hear the opposing party and rule without delay on the application for interim measures (Article 265(2), CPC). It then issues a decision on interim measures that replaces the ex parte interim measures. It is not possible to appeal against ex parte interim measures.
The other decisions concern purely procedural matters. To this extent, they have the force of res judicata regarding the parties and third parties concerned.
An order of instruction relates to the preparation and conduct of the proceedings. In so far as they are not binding or res judicata, they are subject to change at any time. Examples include:
The enforcement of money judgments and non-money judgments follow different procedures.
Common features between the enforcement of money judgments and non-money judgments are as follows:
2.2.1 Enforcement of Money Judgments
The enforcement of money judgments (and of money claims in general) is governed by the Debt Enforcement and Bankruptcy Act (DEBA).
A claimant holding an enforceable domestic money judgment may choose to start the enforcement proceedings through debt enforcement proceedings or through attachment proceedings.
18.104.22.168 Debt enforcement proceedings
Debt enforcement proceedings are not judiciarised in nature, and are operated by debt enforcement offices, organised by the Swiss cantons in accordance with the provisions of the DEBA.
22.214.171.124.1 Initiation of debt enforcement proceedings
A creditor initiates debt enforcement proceedings by requesting the competent debt enforcement office (usually that of the Swiss domicile or registered headquarters of the debtor) to issue an order to pay against its purported debtor. The request for debt enforcement proceedings is typically a one-page form, indicating:
The debt enforcement office does not verify the merits of the claim, only if the information above is provided, and issues the order to pay, which requests the debtor to pay the claim within 20 days on the debt enforcement office’s bank account.
The order to pay is served on the debtor by the debt enforcement office or by the Swiss postal service.
126.96.36.199.2 Objection to the order to pay
Within ten days from having been served with the order to pay, the debtor may file an objection with the debt enforcement office. The objection must be timely, but does not need to be reasoned.
If no objection is filed, the creditor is informed and may, at least 20 days from the service of the order to pay but at the latest within one year from such service, request the continuation of the debt enforcement proceedings (see below).
If the creditor filed a timely objection to the order to pay, the creditor must initiate proceedings to set aside the objection.
188.8.131.52.3 Setting aside of the objection to the order to pay
To set aside the objection to the order to pay, the creditor has three choices, depending on the situation.
184.108.40.206.4 Continuation of the debt enforcement proceedings
If no objection to the order to pay was filed in a timely manner or if it was set aside, the creditor may request the continuation of the debt enforcement proceedings, at the latest one year after the service of the order to pay (the period stops running during the set-aside proceedings).
The debt enforcement proceedings may continue, depending on the situation, in the following manners:
If the claim was secured by pledged assets, a special procedure applies (Articles 152ff, DEBA).
220.127.116.11.4.1 Seizure proceedings
If the debtor is subject to seizure proceedings, upon receiving the creditor’s request for continuation of the debt enforcement proceedings, the debt enforcement office initiates the proceedings of seizure of the debtor’s assets (Article 89, DEBA).
The debtor is, under the threat of criminal sanctions, summoned to appear or to be represented before the debt enforcement office (Article 91(1), DEBA). If the debtor fails to appear or be represented, the debt enforcement office may request the police to force the debtor to attend (Article 91(2), DEBA).
The debtor has an obligation to disclose their assets, including claims against third parties (Article 91(3), DEBA). The debt enforcement office must be satisfied that the assets disclosed are sufficient to satisfy the claims of the creditors, including interests and expenses (Article 97, DEBA).
Third parties who hold assets for the debtor are obliged to provide information to the same extent as the debtor under threat of criminal prosecution (Article 91(4), DEBA). Authorities are also obliged to provide information to the same extent as the debtor (Article 91(5), DEBA).
The debt enforcement office must order interim measures to secure the seized assets, such as securing cash and precious metal (Article 98, DEBA). If a seized asset is a claim against a third party, such party is put on notice that they may only discharge their debt with the debt enforcement office (Article 100, DEBA).
If several creditors are enforcing their claims against the debtor at the same time, they participate in the same series if they have filed their request for continuation of enforcement proceedings within 30 days from the execution of the seizure (Article 110, DEBA).
18.104.22.168.4.2 Bankruptcy proceedings
Bankruptcy proceedings are opened by a bankruptcy order issued by the court of the effective domicile or headquarters of the debtor (Articles 159ff, DEBA).
Bankruptcy proceedings are not judiciarised in nature, and are mainly operated by bankruptcy offices, organised by the Swiss cantons in accordance with the provisions of the DEBA.
22.214.171.124.4.2.1 Bankruptcy order
If the debtor is subject to bankruptcy proceedings, upon receiving the creditor’s request for continuation of the debt enforcement proceedings, the debt enforcement office serves on the debtor a bankruptcy warning (Article 160, DEBA).
The creditor may file a bankruptcy request with the bankruptcy court 20 days after the service of the bankruptcy warning.
The bankruptcy court may, at the request of the creditor, issue interim measures to preserve the debtor’s assets from dissipation (Article 170, DEBA). Such measures may include an inventory of all the debtor’s assets (Article 162, DEBA). The rules of seizure (Articles 90–92, DEBA) apply (see above). The debtor must ensure that the recorded assets are preserved or replaced by equivalent assets (Article 164, DEBA).
The court sets a bankruptcy hearing without delay. The court decides on the bankruptcy without delay, even if the parties have chosen not to appear (Article 171, DEBA).
From the moment of the bankruptcy, all assets and claims of the debtor belong to the bankruptcy estate (Article 197, DEBA).
126.96.36.199.4.2.2 Assets and claims of the bankruptcy estate
The bankruptcy office starts preparing an inventory of the bankruptcy estate’s assets and claims (Article 221, DEBA).
The debtor is, under the threat of criminal sanctions, obliged to disclose their assets, including claims against third parties (Article 222, DEBA).
Third parties who hold assets for the debtor are obliged to provide information to the same extent as the debtor under threat of criminal prosecution (Article 222(4), DEBA). Authorities are also obliged to provide information to the same extent as the debtor (Article 222(5), DEBA).
At the request of a creditor, the bankruptcy office must record potential claims against third parties in the inventory, without assessing the merits of such claims.
188.8.131.52.4.2.3 Ordinary bankruptcy procedure
If the rules for ordinary bankruptcy procedure apply, the bankruptcy estate is administered as follows (Articles 221ff, DEBA):
184.108.40.206.4.2.4 Summary bankruptcy procedure
A summary liquidation procedure (Article 231, DEBA) may be ordered if the proceeds of the debtor’s assets are unlikely to cover the costs of ordinary proceedings or in non-complex circumstances.
In those cases, the bankruptcy office requests the court of first instance to order a summary liquidation procedure. The court authorises the summary procedure unless a creditor requests an ordinary liquidation procedure and provides security for the costs of the liquidation.
In the summary liquidation procedure, the bankruptcy estate is administered as follows:
220.127.116.11.4.2.5 Classes of claims in the bankruptcy
In both ordinary and summary liquidation procedures, secured claims are satisfied directly out of the proceeds from the realisation of the collateral. Should the proceeds not be sufficient to satisfy the claim of a secured creditor, such creditor shall rank as an unsecured and non-privileged creditor for the outstanding amount of their claim.
Unsecured claims are ranked within three classes of claims (Article 219, DEBA), which are essentially composed as follows.
Claims in a lower ranking class will only receive dividend payments once all claims in a higher ranking class have been satisfied in full. Claims within a class are treated on a pari passu basis.
The costs incurred during the bankruptcy proceedings are debts of the estate and have to be paid with priority; ie, before any other creditor is paid.
Upon the expiry of the deadline of the call to creditors, the bankruptcy administration (the bankruptcy office in the case of a summary liquidation procedure) reviews the claims filed and makes decisions in their respect after consulting with the debtor’s representative (Articles 244 and 245, DEBA).
The schedule of claims – ie, the decisions of the administration of the bankruptcy on the claims in the bankruptcy – is filed with the bankruptcy office and a notice is published in the official gazette (Articles 247–249, DEBA).
Creditors may challenge the decision regarding their own claim (existence, privilege, class and quantum) or the claims of other creditors by filing within 20 days an action of challenge of the schedule of claims before the court of first instance (Article 250, DEBA). The proceedings are conducted in a summary procedure.
Creditors who file late claims may participate in the bankruptcy proceedings but are excluded from the interim distributions of assets that precede the filing of their claims (Article 251, DEBA).
The bankruptcy administration liquidates the debtors’ assets and brings claims against third parties that may be liable to the debtor (Articles 256ff, DEBA).
The bankruptcy administration distributes the proceeds (dividends) of the liquidation of the debtors’ assets in accordance with the ranking of the class and in proportion to the claim of each creditor (Articles 261ff, DEBA). In an ordinary liquidation procedure, interim distribution may take place, while in a summary liquidation procedure, the distribution takes place at the end of the bankruptcy procedure. The dividends corresponding to claims of creditors against the bankruptcy that have not been finally adjudicated are set aside until they are, and, as the case may be, are distributed to such creditors or among the other creditors.
18.104.22.168.4.2.6 Assignment of claims to the creditors
If the bankruptcy administration renounces to bring an action in regard of a contentious claim, and no creditor objects, each creditor may request to be assigned the rights of action of the bankruptcy estate (Article 260, DEBA). All creditors who have been assigned a claim must act jointly and severally, at their own costs and risks, on behalf of the bankruptcy estate. After deduction of the costs they incurred, assigned creditors receive a share of the recoveries they obtained, in accordance with the ranking of the class and in proportion to their claim. The excess, if any, is remitted to the bankruptcy administration and distributed to the other creditors.
22.214.171.124 Attachment proceedings
A creditor may request a court to order the attachment of assets located in Switzerland to secure a due claim if any of the following grounds of attachment are met (Article 271(1), DEBA):
In the first two grounds, an attachment may also be requested for a claim that is not yet due.
The title for the definitive setting aside of an objection to a payment order may be:
The creditor needs to show probable cause that the claim exists (and is due, as the case may be), that there is ground for an attachment in the meaning of Article 271 of the DEBA and that an asset of the creditor within the jurisdiction of the court exists.
If the debtor is in Switzerland, the competent court to file the attachment request is that of the debt enforcement proceedings (usually the domicile or registered headquarters of the debtor). If the debtor is not in Switzerland, the court where at least one asset is located has jurisdiction (once the condition is met, the court also has competence to attach assets in Switzerland outside its jurisdiction).
The court issues the attachment order ex parte, on the basis of a written brief.
The creditor is liable to the debtor and to third parties for any damage caused by an unjustified attachment (Article 273(1), DEBA). The court may order them to provide security, sua sponte, or at the request of the debtor or an interested third party (Article 273(2), DEBA).
If the application for an attachment order is denied, the debtor is not informed.
The attachment order is enforced by the competent debt enforcement office(s).
The debt enforcement office at the location of the assets is competent to enforce the attachment. It does so by sending the attachment order by fax or registered letter to the person holding the attached assets, requesting them to immediately confirm the execution of the attachment and to indicate the attached assets and their estimated value. Due to banking secrecy, however, banks may delay the reporting of the attached assets until the end of the objection term or the end of the objection proceedings.
Upon receiving the reports of the persons holding the assets, the debt enforcement office issues an attachment deed that it serves on the creditor (at the address of their Swiss counsel) and on the debtor (at the address of their Swiss counsel, if they have accepted to receive a debt enforcement notice, or at their address in Switzerland or abroad, through mutual assistance proceedings).
Any person whose rights are affected by an attachment may, within ten days from receipt of the attachment deed (persons residing abroad may be granted an extension), file a motivated objection to the attachment order with the same court that issued the attachment order (Article 278, DEBA). The court rules on the objection through summary proceedings (evidence is documentary) on the basis of plausibility of the attachment conditions. The attachment is maintained during the appeal proceedings.
If the creditor has not already instituted debt enforcement proceedings or brought a court action prior to attachment, they must do so within ten days of service of the attachment deed (Article 279, DEBA). If the debtor objects to the order to pay, the creditor must, within ten days of being served with the objection, file a request to set aside the objection (see 126.96.36.199.3 Setting aside of the objection to the order to pay). If the debtor did not object to the order to pay, or once the objection to the order to pay was set aside, the creditor must, within 20 days, request the continuation of the debt enforcement proceedings (see 188.8.131.52.4 Continuation of the debt enforcement proceedings). Those periods do not run while objection proceedings are pending.
2.2.2 Enforcement of Non-money Judgments
The enforcement of non-money judgments in Switzerland is governed by Articles 335ff of the Civil Procedure Code.
A Swiss non-money judgment may be enforced if it is final and binding, and the court has not suspended its enforcement, or it is not yet final and binding, but its early enforcement has been authorised by the court that issued it (Article 336, CPC).
The enforceability of a Swiss judgment is issued by the court that issued it.
The applicant seeking the enforcement of a Swiss judgment must file a request for enforcement with the competent Swiss court, which may be (Article 339, CPC):
Upon request, the enforcement court may order protective measures, if necessary ex parte (Article 340, CPC).
Summary proceedings apply (Article 339 CPC).
If the decision provides for an obligation to act, refrain from acting or to tolerate something, the enforcement court may, under Article 343 of the CPC:
In the event of non-performance, the prevailing party may demand (Article 345, CPC):
A judicial review of the performance due is reserved in every case, and the obligee may, at any time, file a claim for a declaratory judgment that the obligation does not, or no longer, exist(s) or that it has been suspended (Article 352, CPC).
2.3.1 Money Judgments
The administrative and court fees involved in the enforcement of domestic judgments are governed by a federal ordinance (the Ordinance on the fees charged in application of the Debt Collection and Bankruptcy Act). In total, the enforcement of a Swiss judgment rarely exceeds CHF2,500 in administrative and court fees in the first instance and CHF3,500 in the second instance. Federal Court fees are typically of up to CHF20,000 but could theoretically go up to 1% of the matter value.
In the case of judicial proceedings, adverse party costs are governed by cantonal tariffs (Article 95, CPC), which are proportional to the matter value, but vary from one canton to the other. The Federal Court has its own tariff. As proceedings are governed by summary proceedings, adverse party costs rarely exceed CHF2,000 per instance, with the exception of those in the Federal Court, which are typically up to CHF20,000.
The length of the proceedings varies from one canton to another. Debt enforcement offices typically carry out their measures within days. When judicial objections are filed, a decision of the first instance, in summary proceedings, is typically issued within three to six months. Cantonal appeal courts and the Federal Court typically issue their decision within three to six months.
2.3.2 Non-money Judgments
In total, the costs and court fees regarding the enforcement of a Swiss non-money judgment rarely exceed CHF10,000 in total, with the exception of appeals to the Federal Court, which are typically up to CHF20,000.
The length of the proceedings varies from one canton to another, but they are typically concluded within a year.
It is only when the stages of seizure (see 184.108.40.206.4.1 Seizure proceedings) or bankruptcy (see 220.127.116.11.4.2.2 Bankruptcy proceedings) are reached in the enforcement of money claims that the debtor is, under the threat of criminal sanctions, compelled to disclose their assets.
From a procedural perspective, a typical defence against the enforcement of a Swiss default judgment is to challenge that it was properly served. On the merits, a typical defence is that the obligation does not, or no longer, exist(s) or that it has been suspended.
Declaratory judgments, by their very nature, are unenforceable.
Judgments that are final and binding but of which enforcement has been suspended by a court are not enforceable.
There exists no central or decentralised register of Swiss judgments.
Switzerland is a party to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 between members of the European Union and members of the European Free Trade Association (EFTA) other than Liechtenstein (Switzerland, Norway and Iceland).
It should be noted that as a consequence of Brexit, the United Kingdom is, since 2021, no longer covered by the Lugano Convention. United Kingdom judgments issued until the end of the transition period, namely 31 December 2020, may continue to be enforced under the Lugano Convention, although the matter is debated and the Federal Court has not ruled on this issue yet.
Switzerland is also a party to bilateral conventions on the recognition and enforcement of judgments with Austria, Belgium, Czech Republic, Germany, Italy, Liechtenstein, Slovakia, Spain and Sweden.
The typical issues concern whether the action was properly served, whether the court was competent on the basis of Swiss private international law or an international treaty, whether the judgment is enforceable and whether it breached Swiss public policy.
As for Swiss judgments, the proceedings of enforcement of foreign judgments differ if they are money or non-money judgments.
The other main difference in the approach to the enforcement of foreign judgments is whether they were issued in the context of the Lugano Convention or whether they are governed by the general clauses of the Private International Law Act.
The following foreign judgments are not enforced in Switzerland:
The process of enforcing foreign judgments differs, depending on whether the judgment is enforced under the Lugano Convention or the general PILA rules, and on whether they are money or non-money judgments.
3.4.1 Enforcing Foreign Judgments under the Lugano Convention
Under the Lugano Convention (LC), a declaration of enforceability of a money judgment under Article 41 of the LC may be issued at three stages:
Under the LC, a declaration of enforceability of a non-money judgment under Article 41 of the LC may be issued at two stages:
The party applying for the declaration of enforceability must provide a certified copy of the judgment (Article 53, LC) and a declaration of enforceability in accordance with the Annex V form to the LC. A certified translation of the documents may be requested by the enforcement judge (Article 55, LC) but it is usually not requested if the decision is in a Swiss national language (German, French or Italian) or in English.
The LC declaration of enforceability is issued ex parte, except when in the context of the setting aside of an objection to an order to pay. The declaration of enforceability is served on the succumbing party, who has 30 days to appeal. The grounds for refusal under Articles 34 and 35 of the LC are thus only examined by the cantonal court of appeal and then the Federal Court.
3.4.2 Enforcing Foreign Judgments under the Private International Law Act
Under PILA, the proceedings are less expedited than under the LC.
Under PILA, a declaration of enforceability of a money judgment may be issued at two stages:
It should be noted that when a creditor applies for an attachment order, the court incidentally assesses ex parte whether there is probable cause that the foreign judgment can be recognised under PILA, but does not issue a decision in that regard.
Under PILA, a declaration of enforceability of a non-money judgment may be issued at two stages:
The party applying for the declaration of enforceability must provide a complete and authenticated copy of the foreign judgment, and a confirmation that the judgment is final and binding. In the case of a judgment rendered by default, the applicant must provide an authenticated document showing that the defaulting party was duly put on notice.
18.104.22.168 Jurisdiction under the Private International Law Act
In addition to proving that the foreign judgment is final and binding, the other main condition to establish is that the foreign court had jurisdiction under PILA.
Such a condition is met if:
In commercial matters, the main PILA provisions on jurisdiction are as follows.
The proceedings of enforcement of foreign judgments are adversary and are conducted through summary proceedings.
While not procedurally more complex than domestic judgments, the enforcement of foreign judgments tends to be more contested, thus leading to costlier and more protracted litigation.
The fees and adverse party costs and time mentioned under 2.3 Costs and Time Taken to Enforce Domestic Judgments should therefore be doubled.
The defences against the enforcement of a foreign judgment are more numerous than for domestic judgments, especially if they are governed by PILA rather than the LC.
3.6.1 Challenging the Enforcement of a Judgment under the Lugano Convention
The defences are limited to Articles 34 and 35 of the LC.
Under Article 34 of the LC, a judgment cannot be recognised:
Article 35 of the LC provides that a judgment will not be recognised if it conflicts with Section 3, 4 or 6 of Title II of the LC, or under Article 64(3), 67(4) or 68 of the LC.
The Swiss court may in no circumstance review the substance of the foreign judgment (Article 36, LC).
3.6.2 Challenging the Enforcement of a Judgment under the Private International Law Act
The main defences against the enforcement of a judgment under PILA are as follows:
The main issue regarding the enforcement of domestic arbitral awards is challenge to the validity of the arbitration clause.
The main issues regarding the enforcement of foreign arbitral awards are the conditions of Article V of the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the "New York Convention").
The enforcement of arbitral awards differs between Swiss arbitral awards, which are considered as Swiss judgments (Article 387, CPC), and foreign arbitral awards, which are enforced in accordance with the New York Convention, irrespective of reciprocity (Articles 194 and 195, PILA).
Regarding Swiss arbitral awards, if the parties to the arbitration are all domiciled in Switzerland (national award), Articles 353ff of the CPC apply. If one or more parties was domiciled outside Switzerland (international awards), Articles 176ff of the PILA apply.
The enforcement proceedings also differ, depending on whether the award contains money claims or non-money claims.
Declaratory arbitral awards, whether domestic or foreign, are not enforceable.
Interim measures issued by foreign arbitral tribunals are not directly enforceable (Article 183(2), PILA).
4.4.1 Enforcement of Domestic Arbitral Awards
Once notice of a domestic award has been given to the parties, it has the effect of a final and binding judgment (Article 387, CPC).
The enforcement procedure for domestic arbitral awards is the same as that for domestic judgments (see 2.2 Enforcement of Domestic Judgments), except where both parties are domiciled abroad and have excluded the possibility to challenge the award before the Federal Court, in which case, the New York Convention applies.
4.4.2 Enforcement of Foreign Arbitral Awards
The enforcement of foreign arbitral awards is essentially the same as that for foreign judgments under PILA.
The documents required to enforce a foreign arbitral award are specified in Article IV of the New York Convention, namely:
In addition, a translation must be provided if the documents are not in a Swiss national language (German, French or Italian) or in English.
While not procedurally more complex than domestic judgments, the enforcement of foreign arbitral awards tends to be more contested, thus leading to costlier and more protracted litigation. The fees and adverse party costs and time mentioned under 2.3 Costs and Time Taken to Enforce Domestic Judgments should therefore be doubled.
The costs and time taken in the enforcement of domestic arbitral awards are essentially the same as those for domestic judgments, save for the possibility of challenging the arbitration clause.
4.6.1 Challenging Enforcement of a Domestic Arbitral Award
The grounds for challenging a domestic arbitral award are essentially as follows:
4.6.2 Challenging Enforcement of a Foreign Arbitral Award
The grounds for challenging a foreign arbitral award are strictly limited by Article V of the New York Convention, namely:
Post-Brexit Enforcement of UK Judgments in Switzerland
Paradoxically, the main development in 2021 regarding the enforcement of judgments in Switzerland occurred neither in 2021 nor in Switzerland.
Indeed, the main development regarding the enforcement of judgments in Switzerland is the consequences of the Brexit referendum that took place in the United Kingdom on 23 June 2016.
After reviewing the long-term consequences of the inapplicability of the Lugano Convention to the enforcement of United Kingdom judgments in Switzerland (see Isolation?), two decisions regarding the applicability of the Lugano Convention to past judgments will be reviewed (see Transitioning out of Lugano).
French poet Alphonse Lamartine wrote in "Isolation": “One single being is missing and your world is deserted!” (“Un seul être vous manque et tout est dépeuplé!”, "L’isolement", Méditations poétiques, 1820).
Over the past decades, a great number of litigants chose the High Court of England and Wales to litigate their disputes, taking advantage of the efficient judicial system and an array of common law tools; in particular, in fraud-related tort actions.
On the Continent, Switzerland holds a key position in the enforcement of foreign judgments. It is indeed the main offshore banking centre in the world, with more than a quarter, or USD2.3 trillion, of the world’s foreign assets under management; one of the world centres for family office services; the world’s No 1 commodity trading and trade finance hub, with 35% of oil, 60% of metals and 50% of sugar and cereals; and one of the main shipping centres, with 22% of global movements of commodities going through Swiss shipping companies. Switzerland is therefore a jurisdiction of choice to enforce judgment over Swiss assets or to obtain intelligence or evidence over assets abroad.
The Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2007 and its 1988 predecessor allowed litigants to use the efficiency of the United Kingdom judiciary process to obtain judgments that could easily be enforced in Switzerland.
Under the Lugano Convention, it was thus, for example, possible to bring claims in London against various defendants, including ones domiciled in Switzerland, when at least one of the defendants was domiciled in England and the claims were so closely connected that it was expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from a separate proceeding (Article 6(1), Lugano Convention).
In addition, even though Switzerland is not a common law jurisdiction, case law was developed, allowing the enforcement of worldwide freezing orders through the application of the Lugano Convention.
In many ways, the United Kingdom and Switzerland formed a sort of "holy alliance" regarding the enforcement of complex claims.
With Brexit, the Lugano Convention has ceased to apply to the United Kingdom, at least regarding judgments issued from 1 January 2021.
Many practitioners believed that this situation would be temporary, and that the United Kingdom’s 8 April 2020 application to accede to the Lugano Convention would be accepted by the European Union, as it was by the other state parties, Switzerland, Norway and Iceland.
However, on 22 June 2021, the European Union informed, through a note verbal, the depository of the Lugano Convention that it would not give its consent to the United Kingdom’s accession request to the Lugano Convention.
Consequently, for the foreseeable future, the recognition and enforcement in Switzerland of judgments issued in the United Kingdom will be governed by the provisions of the Private International Law Act (PILA).
Indeed, Switzerland is not a party to the Hague Convention of 30 June 2005 on Choice of Court Agreements, and neither Switzerland nor the United Kingdom are parties to the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters.
This has immediate practical consequences, as, for example, the following United Kingdom judgments or orders may no longer be recognised in Switzerland:
Litigation strategies will therefore need to be adapted.
Transitioning out of Lugano
The Lugano Convention does not contain any provisions indicating what would be the consequence of a member state leaving the European Union.
The relevant transitional provision of the Lugano Convention is Article 63(1), which reads: “This Convention shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after its entry into force in the State of origin and, where recognition or enforcement of a judgment or authentic instruments is sought, in the State addressed.”
The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community of 24 January 2020 (the "Withdrawal Agreement") provides, at its Article 67, that for proceedings commenced before 1 January 2021, both the jurisdiction rules and the recognition and enforcement of judgment rules in the Brussels Recast Regulation will continue to apply on a reciprocal basis.
However, there is no similar agreement in relation to the Lugano Convention.
The United Kingdom put in place legislation to ensure that the English courts would continue to apply the Lugano Convention to proceedings issued before 1 January 2021, but Switzerland did not adopt any legislation in that respect.
In a brief note published on its website on 9 December 2020, the Federal Office of Justice affirmed: “According to Article 126 of the EU-UK withdrawal agreement, there was a transition period until 31 December 2020. Based on Article 129 of the withdrawal agreement, the United Kingdom was to continue to be treated as a state bound by the Lugano Convention until the end of this period. Brexit therefore only has an impact on the Lugano Convention since 1 January 2021.”
Furthermore, the Federal Office of Justice stated: “The recognition and declaration of enforceability of judgments made before the withdrawal date shall continue to be governed by the Lugano Convention even after the date of withdrawal.”
On the other hand, the Federal Office of Foreign Affairs published its own note, according to which, “the Lugano Convention will cease to form the legal basis for Swiss-UK relations, at least temporarily. The jurisdiction for and recognition of proceedings initiated after 1 January 2021 and decisions arising therefrom will in principle, therefore, be governed once again by national law in relation to the UK.”
However, these notes have no binding effects on Swiss courts.
The court decision on record dealing with this issue appears to be that of the cantonal court of first instance of Zurich, the Bezirksgericht.
On 24 February 2021, the Bezirksgericht ruled that the Lugano Convention would not apply to a request for attachment and recognition of a High Court of Justice of England and Wales judgment of September 2020 filed on 18 February 2021 on the ground that the United Kingdom was no longer a “party” to the Lugano Convention from 1 January 2021. It appears that the applicants did not appeal this judgment.
This decision was debated among practitioners.
The Federal Court has now shed some light on the issue, in a decision 5A_697/2020 dated 22 March 2021, but only made public on 28 July 2021, and which is meant to be published in the Official Record of leading precedents of the Federal Court.
The case dealt with the enforcement of a judgment by the High Court of Justice of England and Wales dated 17 October 2019, the enforcement and recognition of which in Switzerland had been sought in the context of an attachment request filed in the Canton of Vaud on 26 November 2019. After the dismissal of its objection to the attachment order on 3 April 2020 and of its appeal against that judgment on 24 July 2020, the debtor appealed to the Federal Court on 28 August 2000. In the context of the appeal proceedings, the debtor wrote on 29 January 2021 to the Federal Court that the enforcement of the High Court judgment was no longer governed by the Lugano Convention but by the rules of PILA.
Invited to file determinations, the Federal Office of Justice indicated that the recognition of United Kingdom judgments issued before 1 January 2021 continued to be governed by the Lugano Convention.
The Federal Court ruled that the decision of the Court of Appeal, dated 24 July 2020, during the transition period regarding a judgment rendered before Brexit, rightly applied the Lugano Convention.
On the issue of whether the proceedings before the Federal Court, which were continuing after the end of the transition period, should be governed by PILA or the Lugano Convention, the Federal Court decided for the latter, for three reasons:
The Federal Court therefore did not firmly decide that the enforcement of United Kingdom judgments issued before the end of the transition period should still be governed by the Lugano Convention if the enforcement proceedings are begun after that date, but all the scholars it quoted and the Federal Office of Justice support that position.
It is therefore likely that the Lugano Convention will continue to apply to judgments rendered in the United Kingdom before 1 January 2021, contrary to the decision of the Zurich Bezirksgericht.