State Immunity (Switzerland) Case (No 1)

JurisdictionSuiza
Docket NumberCase No. 60
Date30 septembre 1937
CourtSuperior Court (Switzerland)
Switzerland, Superior Court of Zürich (Verwaltungs-Kommission [Administrative Branch]).
Case No. 60
State Immunity (Switzerland) (No. 1) Case

Jurisdiction — Immunity from — Property of Foreign States — Attachment in Execution of Arbitral Award — Acts lure Imperii and lure Gestionis — Swiss Practice.

The Facts.—Upon the application of the plaintiffs, the judicial authorities in Zürich granted the attachment (Arrest) of the assets belonging to the Roumanian State and deposited with the Swiss National Bank. The attachment was ordered in execution of an award given by the German-Roumanian Mixed Arbitral Tribunal in favour of the plaintiffs. In accordance with the provisions of Swiss law, the authorities in Zürich issued a summons for payment against the debtor, the Roumanian State. Subsequently the judicial authorities submitted the decree ordering the attachment, and the summons for payment, to the Superior Court of Zürich with the request to serve them, through the usual diplomatic channels, upon the Roumanian Government.

Held: that the decree ordering the attachment and the summons for payment must be served upon the Roumanian Government through the diplomatic channels. The Court said: “The question whether attachments and other measures of execution are admissible against foreign States, is disputed. If these measures had been declared inadmissible in Switzerland either by statute or by a constant practice of the courts and if, as a result, the present proceedings in matters of execution would have to be regarded as void, it could be asked whether the documents in question should be forwarded at all or whether the Superior Court, in its capacity of supervisory authority in respect of the offices charged with the levy of executions (Beitreibungsämter), should quash the proceedings for the levy of execution and the attachment resulting therefrom.

“No legal provisions prevent this attachment and the ensuing levy of execution. On the contrary, in 1923 the Federal Assembly refused to consider a draft statute submitted by the Federal Council which aimed at converting into a law an ordinance, enacted in 1918 in the exercise of special powers entrusted to the Federal Council, and which prohibited the levy of execution against foreign States.1 In recent times the following judgments have been pronounced by the courts: a judgment of the Federal Tribunal, of March 13, 1918, declaring invalid an attachment of goods belonging to the Austrian State2; a judgment of the...

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