ICLG - The International Comparative Legal Guide - Switzerland

Author:Mr Saverio Lembo and Aurélie Conrad Hari
Profession:Bär & Karrer

1 Country Finder

1.1 Please set out the various regimes applicable to recognising and enforcing judgments in your jurisdiction and the names of the countries to which such special regimes apply.

2 General Regime

2.1 Absent any applicable special regime, what is the legal framework under which a foreign judgment would be recognised and enforced in your jurisdiction?

Under Swiss law, in the absence of an applicable international legal instrument, the Swiss Private International Law Act (PILA) applies to govern the conditions of recognition and enforcement of foreign decisions (Art. 1 para. 1 lit. c and para. 2 PILA), in particular the general provisions found in its first chapter, fifth section. With regards to recognition of foreign decisions on foreign insolvency (Art. 166-174 PILA), foreign composition with creditors (Art. 175 PILA) and foreign arbitral awards (Art. 194 PILA), specific provisions in the chapters dealing with these subject matters apply. With regards to enforcement of foreign decisions, pecuniary debt is subjected to the Swiss Debt Enforcement and Bankruptcy Act (DEBA) and specific performance is subjected to the Swiss Civil Procedural Code (CPC).

In order to interpret the statutes, one can refer to case law, among other sources.

2.2 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction?

Under Swiss law, in principle, a foreign decision is considered to be any decision made by a judicial authority acting de jure imperi. It is irrelevant whether this authority is judiciary, administrative or even religious.

According to the general provisions under PILA, a foreign decision is recognisable in Switzerland when (Art. 25 PILA):

the foreign judiciary and administrative authorities who rendered the decision had jurisdiction (Art. 26 PILA); the decision is final or could not be subject to any ordinary appeal; and there is no ground for denial of recognition set in Article 27 PILA. Recognition of a foreign decision must be denied:

if it is contrary to Swiss public policy (Art. 27 para. 1 PILA); And if a party establishes (Art. 27 para. 2 PILA): that it did not receive proper notice, under either the law of its domicile or that of its habitual residence, unless such party proceeded on the merits without reservation; that the decision was rendered in breach of fundamental principles of the Swiss conception of procedural law, including the fact that the said party did not have an opportunity to present its defence; or that a dispute between the same parties and with the same subject matter is the subject of pending proceedings in Switzerland or has already been judged there, or that it was judged previously in a third state, provided that the latter decision fulfils the conditions for its recognition. Once a decision is recognised following the above-mentioned rules, it shall be declared enforceable upon request (Art. 28 PILA). Unlike the Lugano Convention (see below question 3.1), the PILA is silent on the question of the recognition and enforcement of interlocutory orders ("mesures provisoires") and there is no clear and uniform practice by the Swiss courts on this matter. 2.3 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively?

In Switzerland, there is a difference between recognition and enforcement; recognition of a decision is the natural prerequisite to its enforcement. Nevertheless, a decision can be recognised without being enforced. Also, recognition could be automatic depending on the applicable law, in which case the interested party could directly ask for enforcement. Finally, the interested party has the option to ask for recognition and enforcement simultaneously.

Depending on the path the judgment creditor follows, the decision on recognition may or may not have res judicata effect. When recognition is assessed by the court as a prejudicial question in the context, for example, of an application for enforcement of the foreign judgment, the decision of the Swiss court would only bind the parties in that specific dispute, meaning that it would not have res judicata effect. In order for the decision on recognition to have a full res judicata effect, recognition must be the subject matter of the application to the court and not only a prejudicial question.

2.4 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction.

Recognition of foreign decisions is governed by the PILA and the Swiss Civil Procedural Code (CPC). These statutes provide for several different procedures available to the parties:

Application for recognition of a foreign decision by way of an action for a declaratory judgment if the requestor has a legitimate interest to lift uncertainty. Application for the issuance of a declaration of enforceability of the foreign decision, without applying for its enforcement (Art. 28 PILA). Reliance of a party on a foreign decision with respect to a preliminary issue: the authority before which the case is pending may itself rule on the recognition (Art. 29 para. 3 PILA). This is often the case when a party files an application for enforcement of a foreign decision, without having previously had a decision on its recognition. The law applicable to the enforcement of a foreign decision, and thus the procedure to follow, depends on the...

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