Dispute Resolution analysis: How will a no-deal Brexit affect the enforcement of judgments between the UK and Switzerland? Dr Urs Feller, partner, Marcel Frey, counsel and Michaela Kappeler, associate, at Prager Dreifuss Ltd, Zurich, discuss how this is likely to be impacted and the rules that will apply in relation to UK judgments rendered prior to and after exit day.
How are UK judgments currently enforced in Switzerland?
Switzerland is not a Member State of the EU. Therefore, the Lugano Convention on the jurisdiction and the recognition and enforcement of judgments in civil and commercial matters from 2007 (the Lugano Convention) is currently applicable in most private law cases between Switzerland and Member States of the EU. Under Swiss law, a party seeking to enforce a monetary UK judgment in Switzerland can either do so by:
requesting a payment summons against a Swiss-based counter party based on the judgment applying for recognition of the judgment in separate (exequatur) proceedings and pursuing enforcement by debt enforcement thereafter. The procedure is summary in nature and quick (see in more detail below) Will that regime no longer apply following a no-deal Brexit?
Our current understanding is that after exit day the UK will cease to be a party to the Lugano Convention since the UK will no longer be a Member State of the EU. This would result in the non-applicability of the Lugano Convention regarding recognition and enforcement of UK judgments given in proceedings after exit day (see below for judgments given pre exit day or where proceedings were commenced pre exit day).
Consequently, the courts of Switzerland will apply the Swiss Private International Law Act 1989 (PILA) in cases of an international context, unless another treaty—such as the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations—applies. The enforcement process for foreign judgments is more demanding under the regime of PILA than under the Lugano Convention.
The conditions for recognising a UK judgment under PILA (which is a prerequisite for enforcing a judgment) are:
the jurisdiction of the UK court rendering the judgment was established no ordinary judicial remedy is available against the judgment in the UK or the judgment is final no Swiss grounds for refusal of recognition exist. Such grounds for refusal include, for example: if the decision is obviously incompatible with Swiss public policy...