Since the United Kingdom left the European Union on 31 January 2020, it is no longer a party to the Lugano Convention. Therefore, the enforcement of English judgments in Switzerland is now governed by the Federal Act on Private International Law ("PILA") with differing requirements. This article provides an overview of what needs to be considered when seeking enforcement of an English judgment in Switzerland.
English judgments rendered before 31 December 2020
Under the terms of the withdrawal agreement between the EU and the UK, the UK continued to be treated as a state bound by the Lugano Convention until 31 December 2020. Consequently, the recognition and enforcement of English judgments rendered before 31 December 2020 is still governed by the Lugano Convention. This was confirmed by the Swiss Federal Supreme Court in a landmark ruling earlier this year (see our post dated 30 July 2021).
The Lugano Convention follows the principle of automatic recognition. The debtor is not heard in the first phase of the enforcement proceedings and may only raise limited defences in the appeal proceedings. The party seeking a declaration of enforceability of a UK judgment based on the Lugano Convention needs to file a copy of the judgment (original or certified copy) and the standard form of Annex V with the enforcement court. In practice, requests for a declaration of enforceability are often combined with a freezing order request.
English judgments rendered after 31 December 2020
The recognition and enforcement of English judgments rendered after the transition period, i.e. after 31 December 2020, is governed by PILA. The requirements for the recognition and enforcement of foreign judgments under PILA differ from those of the Lugano Convention.
In order to enforce an English judgment under PILA, three requirements must generally be met:
- first, the jurisdiction of the UK court must be warranted from a Swiss law perspective;
- second, the UK judgment must no longer be subject to ordinary appeal or is final; and
- third, there are no grounds for refusal, e.g. an improper service of process or a violation of the right to be heard.
As can be seen from the requirements above, the Swiss enforcement court must examine the jurisdiction of the UK court before declaring an English judgment enforceable. This requirement is deemed to be fulfilled, e.g. if there is a valid jurisdiction agreement or if a commercial judgment was rendered in the state where the defendant is domiciled. Furthermore, the decision must be final which makes it more challenging to enforce foreign interim measures. Finally, the enforcement proceedings under PILA are adversarial and the defendant may thus present its defence before the UK judgment is declared enforceable by the Swiss enforcement court. However, to secure the subsequent enforcement, an ex parte freezing order may be requested.
An enforcement request must be filed with the enforcement court together with a complete and certified copy of the UK judgment, an official confirmation or a legal opinion confirming that no ordinary appeal can be lodged against the decision or that it is final and, in case of a default judgment, an official document confirming that the defendant was properly served and had the opportunity to present its defence.
Enforcement of interim measures rendered by an English court
Under the Lugano Convention, interim measures are generally enforceable in Switzerland if they were served on the defendant and he was granted the right to be heard at some point in time in the underlying proceedings. Under PILA, the situation is somewhat different. Although the Swiss Federal Supreme Court has not yet ruled on this issue, it is the prevailing view that interim measures are not enforceable due to their lack of finality. With regard to worldwide freezing orders ("WFO"), several Swiss courts have also rejected the notion that WFOs may be transformed into Swiss law. However, in any event, the application for interim measures under Swiss law remains possible and is often the more practical solution.
Be aware of the stricter requirements
Brexit led to stricter recognition and enforcement requirements for English judgments. Parties seeking to enforce an English judgment in Switzerland are therefore advised to verify the enforceability in each individual case and - to the extent possible - at an early stage of the proceedings together with local counsel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.