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.
|Applicable Law/Statutory Regime||Relevant Jurisdiction(s)||Corresponding Section Below|
|Convention between the Swiss Confederation and the German Reich on the Recognition and Enforcement of Judgments and Arbitral Awards of 2 November 1929.||Switzerland and Germany.||Section 3.|
|Convention between Switzerland and Austria on the Recognition and Enforcement of Court Decisions of 15 March 1927 and 16 December 1960.||Switzerland and Austria.||Section 3.|
|Convention between Switzerland and Belgium on the Recognition and Enforcement of Judgments and Arbitral Awards of 29 April 1959.||Switzerland and Belgium.||Section 3.|
|Treaty between Switzerland and Spain on the Reciprocal Enforcement of Judgments or Decrees in Civil or Commercial Matters of 19 November 1896.||Switzerland and Spain.||Section 3.|
|Convention between Switzerland and Italy on the Recognition and Enforcement of Judgments of 3 January 1933.||Switzerland and Italy.||Section 3.|
|Convention between Switzerland and the Principality of Liechtenstein on the Recognition and Enforcement of Judgments and Arbitral Awards in Civil Matters of 25 April 1968.||Switzerland and Liechtenstein.||Section 3.|
|Convention between Switzerland and Sweden on the Recognition and Enforcement of Judgments and Arbitral Awards of 15 January 1936.||Switzerland and Sweden.||Section 3.|
|Convention between Switzerland and the Czechoslovak Republic on the Recognition and Enforcement of Judgments of 21 December 1926.||Switzerland, Slovakia and the Czech Republic.||Section 3.|
|Agreement between Switzerland and the United States of America on the Enforcement of Maintenance Obligations of 31 August 2004.||Switzerland and the United States.||Section 3.|
|Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children of 19 October 1996.||Signatory countries to the Convention.||Section 3.|
|Convention on the International Protection of Adults of 13 January 2000.||Signatory countries to the Convention.||Section 3.|
|European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children of 20 May 1980.||Signatory countries to the Convention.||Section 3.|
|Hague Convention on Recognition and Enforcement of Maintenance Decisions Towards Children of 15 April 1958.||Signatory countries to the Convention.||Section 3.|
|Hague Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations of 2 October 1973.||Signatory countries to the Convention.||Section 3.|
|Hague Convention on the Recognition of Divorces and Legal Separations of 1 June 1970.||Signatory countries to the Convention.||Section 3.|
|New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 ("New York Convention").||Signatory countries to the Convention.||Section 3.|
|Protocol on Jurisdiction and the Recognition of Decisions Relating to the Right to Obtain a European Patent of 5 October 1973.||Signatory countries to the European Patent Convention of 5 October 1973.||Section 3.|
|Hague Convention on the Applicable Law and Recognition of Trusts of 1 July 1985.||Signatory countries to the Convention.||Section 3.|
|Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of 30 October 2007 ("LC").||Signatory countries to the Convention.||Section 3.|
|Memorandum of Understanding between Switzerland and the Province of Manitoba on the Recognition, Enforcement, Establishment and Modification of Maintenance Obligations of 5 June 2003.||Switzerland and the Province of Manitoba.||Section 3.|
|Memorandum of Understanding between Switzerland and the Province of Saskatchewan on the Recognition, Enforcement, Establishment and Modification of Maintenance Obligations of 9 July 2003.||Switzerland and the Province of Saskatchewan.||Section 3.|
|Memorandum of Understanding between Switzerland and the Province of British Columbia on the Recognition, Enforcement, Establishment and Modification of Maintenance Obligations of 5 June 2013.||Switzerland and the Province of British Columbia.||Section 3.|
|Memorandum of Understanding between Switzerland and the Province of Alberta on the Recognition, Enforcement, Establishment and Modification of Maintenance Obligations of 25 January 2016.||Switzerland and the Province of Alberta.||Section 3.|
|The Federal Statute on Private International Law ("PILA").||Switzerland.||Section 2.|
|Debt Enforcement and Bankruptcy Act ("DEBA").||Switzerland.||Section 2.|
|Swiss Code of Civil Procedure ("SCCP").||Switzerland.||Section 2.|
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?
In Switzerland, the PILA governs the recognition and enforcement of foreign judgments. Article 1(2) PILA provides for the application of special regimes through international treaties regarding recognition and enforcement, the most important ones being the New York Convention and the LC.
With regard to the enforcement of foreign decisions, pecuniary debt is subject to the DEBA and specific performance is subject to the SCCP.
2.2 What constitutes a 'judgment' capable of recognition and enforcement in your jurisdiction?
A judgment capable of recognition and enforcement in the Swiss jurisdiction is a final decision or a decision which is no longer subject to an ordinary way of appeal (Article 25 PILA).
2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction?
Articles 25 to 28 PILA provide the requirements of form and substance enabling the recognition and enforcement of a foreign judgment. In a nutshell, a foreign decision is recognised in Switzerland if:
- it is final or no longer subject to an ordinary way of appeal;
- the foreign judicial or administrative authorities had jurisdiction to render the decision (see question 2.4); and
- there are no grounds to deny recognition (see question 2.7).
Special rules apply for the recognition of decisions on bankruptcy and composition (Articles 166 to 168 PILA), as well as of foreign decisions closely related to a bankruptcy decision recognised in Switzerland that concern revocatory actions and other acts detrimental to creditors (Article 174c PILA) and composition or similar proceeding approved by a foreign authority (Article 175 PILA).
2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment?
As mentioned in question 2.3 above, the foreign judicial or administrative authorities that issued the decision must have had jurisdiction for the decision to be recognised in Switzerland (Article 25(a) PILA).
In particular, Article 26 PILA provides that the competence of foreign authorities is given:
- according to the applicable provisions of the PILA (see list of provisions below) or, in the absence of such a provision, if the defendant was domiciled in the State in which the decision was rendered;
- if, in matters relating to a pecuniary claim, (i) the parties have submitted to the jurisdiction of the authority which made the decision by an agreement valid under this law, or (ii) the defendant proceeded on the merits of the case without challenging the jurisdiction; or
- whenever, in the case of a counterclaim, the authority that rendered the decision had jurisdiction over the principal claim, provided that there is a connection between the two claims.
In order to assess whether the judicial or administrative authorities of the State had jurisdiction to render the decision, the PILA provides special rules that apply for the recognition of foreign decisions in relation to matrimonial property regimes (Article 58 PILA), divorce or legal separation (Article 65 PILA), same-sex partnerships (called "registered partnerships" in Switzerland) (Article 65d PILA), acknowledgment of a child (Article 73 PILA), adoptions (Article 78 PILA), the relationship between parents and child (Article 84 PILA), guardianship, protection of adults and other protective measures (Article 85 PILA), decisions, measures and documents in relation to, as well as rights deriving from, an inheritance estate (Article 96 PILA), real property rights (Article 108 PILA), securities held with an intermediary (Article 108d PILA), infringement of intellectual property rights (Article 111 PILA), a right pertaining to the law of obligations (Article 149 PILA), trusts (Article 149e PILA) and company law (Article 165 PILA).
If the decision was rendered by an authority that lacked jurisdiction, recognition will be denied by the Swiss authorities.
It is worth noting that, in the light of the above, whenever a foreign court has rendered a decision based on special jurisdiction that does not meet the abovementioned conditions, recognition will be denied by the Swiss court.
2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively?
Under Swiss law, recognition of a foreign decision is the prerequisite for its enforcement. The enforcement of a foreign decision is not possible without its prior recognition. In some cases, a party will seek recognition without enforcement of a foreign decision; for instance, when the party needs to rely on the findings and declarations contained in the foreign judgment but seeks another relief than the one or those contained in the foreign judgment.
As to their respective legal effects, they are as follows:
- Recognition: once the foreign judgment is recognised, the res judicata effect applies and the parties cannot initiate new proceedings on the same facts and legal issues in Switzerland.
- Enforcement: once the foreign judgment is enforced, the initial claim, whether monetary or for specific performance, should be extinguished and the claimant should have obtained what he was seeking.
2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction.
The procedure for recognising a foreign decision before a Swiss court starts with the filing of an application. The applicant must accompany his/her request with the following documents:
- a complete and authentic copy of the decision (together with a translation of the relevant parts of the decision if the original language of the decision is not in the language of the Swiss court that will have to decide on enforceability);
- a certificate stating that the decision is final or no longer subject to ordinary appeal; and
- in the case of a default judgment, an official document establishing that the defaulting party has been summoned regularly and has had the opportunity to present his/her case.
Usually, the applicant requests recognition and enforcement of the foreign decision at the same time. In this case, the competent authority to rule on the request for recognition or enforcement is the cantonal authority of the place where the foreign decision is invoked (Article 29 PILA) – usually, the cantonal court of first instance.
However, sometimes in the context of a main action, the claimant may need to rely on a foreign decision and will therefore request, as a prerequisite, recognition in the context of his/her main action. In this case, the authority having jurisdiction to rule on the main action can also decide on the request for recognition (Article 29(3) PILA).
The court hears the party challenging the recognition and enforcement in the proceedings and his/her arguments and evidence (Article 29(2) PILA).
The court will then render a decision on recognition and enforcement. Concerning the enforcement of the foreign decision, the proceedings that will follow depend on whether the claim that forms the basis of the foreign decision is monetary or not.
- A foreign decision ruling on a monetary claim or security provision, once recognised, must be followed by debt collection proceedings according to the DEBA (via Article 335(2) SCCP). In principle, those proceedings are summary proceedings, which are less expensive and quicker.
- A foreign decision ruling on a specific performance will generally be enforced directly by the court, at the same time as the recognition, through the SCCP (Articles 335–352).
Swiss decisions on recognition and enforcement of foreign judgments are subject to appeal.
2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made?
The grounds for challenging are different for recognition and enforcement.
In terms of recognition, as a general principle, the foreign decision may not be reviewed on its merits. Hence, the grounds for challenging the recognition of a foreign judgment are limited (Article 27 PILA). Recognition of a foreign decision must be denied in Switzerland if it is manifestly incompatible with Swiss public policy. It must also be denied if the challenging party succeeds in establishing that:
- he/she was not duly summoned, either according to the law of his/her domicile or according to the law of his/her habitual residence, unless he/she proceeded on the merits without making a reservation;
- the decision was issued in violation of fundamental principles of Swiss procedural law, in particular that the said party was not given an opportunity to defend his/her case; or
- a dispute between the same parties and on the same subject matter had already been brought in Switzerland or had already been ruled there, or had previously been ruled on in a third State, provided that the latter decision fulfils the conditions for its recognition in Switzerland.
In terms of enforcement, the party challenging enforcement may raise several substantive grounds, which will depend on whether the foreign decision rules on a monetary claim or a specific performance:
- Grounds against enforcement of a foreign decision ruling on a monetary claim:
- the debt is statute-barred;
- the debt has been reimbursed entirely or partially;
- the parties agreed to proceed with instalment payments; or
- the creditor agreed to stay the reimbursement process for some time.
- Grounds against enforcement of a foreign decision ruling on a specific performance claim:
- the specific performance has already been performed; or
- the specific performance is statute-barred.
2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters?
As explained in question 2.4, the PILA provides specific rules regarding jurisdiction for recognition and enforcement of foreign decisions in some specific law areas such as, amongst others, family law, inheritance law, property law, intellectual property law and company law.
Moreover, special rules apply regarding recognition and enforcement of foreign decisions on bankruptcy and composition (Articles 166–175 PILA). Those rules apply not only with regard to jurisdiction, but also with regard to general conditions of recognition and enforcement.
A foreign bankruptcy decision is recognised in Switzerland at the request of the foreign bankruptcy administration, the debtor or a creditor, provided that (Article 166 PILA):
- the decision is enforceable in the State in which it was rendered;
- there are no grounds for denial within the meaning of Article 27 PILA (see question 2.7 above); and
- the decision has been rendered:
- in the State of the debtor's domicile, or
- in the State where the debtor's centre of main interests is situated, if the debtor was not domiciled in Switzerland at the time of the commencement of the foreign proceedings.
Specific rules apply whenever the debtor has a branch in Switzerland (Article 166(2)(3) PILA).
2.9 What is your court's approach to recognition and enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending between the parties?
As set forth in question 2.7, the recognition of a foreign judgment in a dispute between the same parties and on the same subject matter, which had already been brought in Switzerland or had already been ruled there, or had previously been ruled in a third State, will be denied.
If proceedings in Switzerland are pending between the same parties and on the same subject matter at the time a party initiates recognition proceedings, whether or not accompanied by a request for enforcement, the outcome of the recognition proceedings will depend on which proceedings were initiated first. In cases where the pending Swiss proceedings started before the proceedings that gave rise to the foreign judgment, the court will deny recognition of the foreign judgment. Conversely, in cases where the foreign proceedings which led to the foreign judgment started before the initiation of the Swiss pending proceedings, the court will recognise the foreign decision and the Swiss pending proceedings will be dismissed.
2.10 What is your court's approach to recognition and enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or a similar issue, but between different parties?
Since the foreign decision may not be reviewed on its merits (see question 2.7 above), the Swiss court cannot deny the recognition and/or enforcement of a foreign judgment on the ground of a conflict of law, as long as the foreign judgment is not manifestly incompatible with Swiss public policy.
When a prior judgment on the same or a similar issue but between different parties already exists, it will not interfere with the recognition and enforcement process as described in questions 2.6 and 2.7 above. Furthermore, such judgment will not prevent the court from recognising and enforcing the foreign judgment – only disputes between the same parties and on the same subject matter are subject to denial (Article 27 PILA).
2.11 What is your court's approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country?
As described in question 2.10, a foreign decision may not be reviewed on its merits. Therefore, as long as the foreign judgment is not manifestly incompatible with Swiss public policy, Swiss courts cannot deny recognition and/or enforcement on the ground that the foreign court may have applied Swiss law incorrectly.
2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various states/regions/provinces in your country? Please explain.
As set forth in the previous questions, the PILA, DEBA and SCCP are the basis of recognition and enforcement of foreign decisions in Switzerland. Since those rules are federal law, there are no major differences in the rules and procedure of recognition and enforcement in the various Swiss cantons.
The only differences pertain to the organisation of the courts and debt enforcement authorities, which differs in every canton, and the languages of the proceedings, which can be French, German, Italian and Romansh depending on where the proceedings are initiated.
2.13 What is the relevant limitation period to recognise and enforce a foreign judgment?
There is no limitation period as such for the recognition and enforcement in Switzerland of a foreign judgment.
However, Swiss law provides that a claim recognised by a judgment is statute-barred after 10 years (Article 137(2) Swiss Code of Obligations ("SCO")). Therefore, should Swiss law apply to the claim that is the subject of the foreign judgment to be recognised and/or enforced in Switzerland, a statute of limitation of 10 years will apply. Hence, should a party request the recognition and/or enforcement of the foreign judgment after this 10-year period, the court will reject the request on the ground that the claim is time-barred.
3. SPECIAL ENFORCEMENT REGIMES APPLICABLE TO JUDGMENTS FROM CERTAIN COUNTRIES
3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to be recognised and enforceable under the respective regime?
Although technically still valid and applicable, all the bilateral treaties mentioned under question 1.1 currently have a very limited scope in practice. Indeed, they have been replaced by more recent multilateral conventions, such as the LC, and thus lack relevancy. Therefore, in this chapter we will focus on the LC.
Under the LC, a judgment must be final and binding in order to be recognised and enforced. Furthermore, no ground for denial exists. The system put in place by the LC favours recognition/enforcement of foreign judgments, since the first instance proceedings are not contradictory and grounds for denial can only be raised and must only be examined within the framework of appeal proceedings. Such proceedings can be initiated by the party against which the judgment to be recognised is rendered, upon service of the Swiss decision recognising it (Article 43 LC). Articles 34 and 35 LC provide for the grounds for denial of recognition that can be invoked within the framework of appeal proceedings, in particular:
- recognition is manifestly contrary to Swiss public policy;
- recognition is irreconcilable with a judgment rendered in a dispute between the same parties in Switzerland;
- recognition is irreconcilable with an earlier judgment rendered in another State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in Switzerland; and
- the judgment to be recognised has been rendered in violation of mandatory or exclusive jurisdiction under sections 3 (insurance), 4 (consumer contracts) and 6 (rules on exclusive jurisdiction) Title II LC. Aside from this limited scope, Swiss courts cannot review the jurisdiction of a court in another Member State.
Finally, pursuant to Article 34(2) CL, a judgment issued in default of appearance will not be recognised if the defendant was not served with the document that instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him/her to arrange for his/her defence. It is worth mentioning that in relation to this provision, Switzerland made a reservation: even in an instance where the defendant could have challenged the judgment in default but did not do it, Switzerland will deny recognition, contrary to the wording of Article 34(2) in fine CL. So, in this respect, Switzerland offers increased protection to defaulting parties.
3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement?
Under the LC (Article 33), recognition is automatic in all Member States and thus does not necessarily require any specific proceedings. So, the creditor may directly file for enforcement without having the foreign decision formally recognised in prior and separate proceedings. That said, a party interested in obtaining a formal recognition in Switzerland can file an application in this respect.
3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment.
Under the LC, the party seeking the declaration of enforcement (Article 38 LC) must file an application, together with the following documents (Articles 41, 53 and 54 LC):
- a certified copy of the judgment; and
- a certificate of enforceability issued by the foreign court or authority using the standard form set out in Annex V of the LC or any equivalent document.
It is possible that the Swiss court may require translations of the documents (Article 55(2) LC). This may be the case if the original language of the judgment and of the certificate is not in the language of the Swiss court that will have to decide on enforceability.
The proceedings to declare a foreign judgment enforceable under the LC are not adversarial, unlike the PILA proceedings. Once the formalities stated above are completed, the judgment is immediately declared enforceable (Article 41 LC).
3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/enforcement of a judgment be challenged under the special regime? When can such a challenge be made?
It is only after the end of the first instance proceedings that the Swiss judgment declaring enforceability is served to the opposing party (Article 42(1) LC); such party will then be entitled to lodge an appeal against the declaration of enforceability (Article 43 LC).
As for the merits of the case, Article 45(2) LC provides that the foreign judgment cannot be reviewed in its substance at this stage. The grounds to deny the declaration of enforceability have been presented at question 3.1 and are the same as the grounds for denying recognition (see Articles 45(1), 34 and 35 LC).
4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor?
The enforcement methods available to the judgment creditor depend on the qualification of its claim, whether it is of a pecuniary nature or if it is a non-pecuniary claim.
As already indicated, enforcement of pecuniary claims under Swiss law are governed by the DEBA, whereas the execution of non-pecuniary claims is governed by the specific rules contained in the SCCP.
Pecuniary claims are enforced in Switzerland through debt collection proceedings, which can lead to either the seizure of assets of the debtor (in case of an individual) or bankruptcy (in case of companies). The main steps of these proceedings are as follows:
1) filing of a request to initiate debt collection proceedings with the competent Debt Collection Office ("DCO"), i.e. an administrative, non-judicial body. No proof of claim will be provided at this stage;
2) issuance of a summons to pay by the DCO and formal service on the debtor;
3) upon service, the debtor can raise an oral or written opposition against the summons to pay, generally within 10 days from service, without providing any specific ground or particular evidence; and
4) to the extent an opposition is raised, the creditor having initiated debt collection proceedings will seek the intervention of the competent judge to have the opposition lifted. If the creditor has a final and enforceable judgment against the debtor, the judge will lift the opposition. It must be noted that the enforceability of the foreign judgment will be assessed by the judge at this stage – there is no need for a creditor to have the foreign judgment declared enforceable before starting debt collection proceedings in Switzerland. If the debtor does not raise any opposition against the summons to pay (or does it too late), such declaration of enforceability may not even be necessary, the debt collection proceedings continuing and allowing the DCO to proceed with seizures of assets or commination of bankruptcy.
To the extent conditions are met, the creditor willing to enforce a foreign judgment in Switzerland can also file an application for ex parte attachment proceedings, aiming to attach assets of the debtor located in Switzerland. Since the attachment is an ex parte interim measure, it will need to be validated through the commencement of ordinary debt collection proceedings as described above. In order for a creditor to be able to file a successful attachment request, the creditor must establish, prima facie, the following:
1) the existence of a due, unsecured claim (should not be an issue if the claim stems from a foreign final judgment);
2) that he/she holds an enforceable judgment (or in case no judgment exists, there is another ground for attachment pursuant to the DEBA; for example, if the debtor has no residence in Switzerland, a sufficient link of the claim with Switzerland must exist); and
3) the existence of assets belonging to the debtor located in Switzerland (for instance, bank accounts or other assets).
To the extent an attachment request is based on a judgment issued by a court of a Member State of the LC, the declaration of enforceability will be issued at the same time as the attachment order. For non-LC judgments, the abovementioned conditions for enforceability will be established at a later stage, during the debt collection proceedings, along with the obtainment of the declaration of enforceability.
The enforcement of foreign judgments for non-pecuniary claims, i.e. judgments requiring specific performance, is governed by the SCCP. The enforcement of such judgments involves an obligation to do, to abstain or to tolerate (Article 343(1) SCCP). Therefore, a case-by-case analysis is required. Common means available to the judgment creditor to enforce a specific performance are:
- the threat of a criminal sanction (a fine for contempt of court pursuant to Article 292 Swiss Criminal Code), a fine of up to CHF 5,000 or financial penalty (of up to CHF 1,000) for each day of non-performance;
- the use of direct constraint;
- an order for surrogate measures (a third person must perform the obligation in lieu of the debtor); and
- the conversion of the specific performance into a pecuniary performance (if actual performance is actually impossible).
The requesting party can also apply for (ex parte) interim measures, to protect his/her rights and secure execution of the foreign judgment, to the extent the conditions are met.
5. OTHER MATTERS
5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description.
The UK is no longer treated as a contracting party to the LC. It is unclear if recognition and enforcement in Switzerland of UK judgments that were issued before 1 January 2021 will still be governed by the LC, but UK judgments that were issued after that date will be subject to the rules of the PILA, until the UK joins the LC as an independent contracting party. Notably, this affects the enforceability of English worldwide freezing orders in Switzerland.
5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction?
As stressed earlier on in this chapter, a party that knows that a judgment will eventually have to be recognised in Switzerland must be very diligent and ascertain that basic procedural principles (right to be heard, proper service of claim and summons to appear) are complied with in the foreign proceedings in order to avoid any grounds for denial of recognition and enforcement at a later stage.
In particular, proper service is a key issue for enforcement. If transnational, such service must be compliant with the rules of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters of 15 November 1965, if applicable. In this respect, it must be noted that Switzerland has made several reservations and does not accept service on its territory very easily (translation of documents in a national language can be required, no service through diplomatic representations in Switzerland, no direct postal service from abroad). The use of contractually appointed process agents for claim notification might also be a cause for denial of recognition and enforcement of a foreign judgment in Switzerland.
The recognition and enforcement of foreign interim measures can give rise to delicate issues before Swiss courts. It is debatable whether such measures can be recognised and enforced pursuant to the PILA, whereas a clear basis for such a recognition exists under the LC. However, very often it is easier to apply in Switzerland for interim measures directly than trying to obtain the formal recognition and enforceability of foreign interim measures. In this case, the existence of interim measures ordered abroad can help the applicant of similar measures in Switzerland to convince the local judge of the necessity of those measures and obtain them.
This article was first published in the ICLG – Enforcement of Foreign Judgments 2021.
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.