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Recognition and enforcement procedure
What is the formal procedure for seeking recognition and enforcement of a foreign judgment?
Although formal acknowledgement and thus immediate enforcement of foreign judgments is not possible in Liechtenstein, domestic law offers specific procedures which may nevertheless provide a chance for successful plaintiffs, being creditors on the basis of a foreign judgment, to achieve their goal.
Based on a foreign judgment or the claim confirmed therein, the creditor may apply for a payment order (if the foreign judgment states the debtors' obligation to pay a certain amount of money or transfer certain assets to the creditor) or a court order for a specific performance by the debtor (if the foreign judgment is of a declaratory nature or states the debtors' obligation to commit or not commit certain acts).
Summary court order
Summary court orders have the quality of a Liechtenstein judgment and can therefore be enforced in Liechtenstein. Thus, although foreign judgments cannot be immediately enforced in Liechtenstein, they can easily be converted into a Liechtenstein court order and thus enforced in Liechtenstein.
However, as summary court orders are issued without the opposing party being heard (ex parte payment orders), the debtor can object to and thus eliminate the court order by simple notice to the court. The abovementioned conversion therefore leads to immediate results only if the opposing party does not object.
Reinstitution procedure If a summary court order is disputed and therefore nullified, Liechtenstein law provides a specific procedure known as the ‘reinstitution procedure’ (Article 49seq of the Act on the Protection of Rights). If a creditor is granted a summary court order and the court order is then nullified on the debtor’s objections, the creditor may object to the nullification and demand that the court set aside the debtor's objection and reinstitute the creditor's summary court order.
Such a demand for reinstitution can be considered a regular claim and will lead to a court procedure; however, such procedures are simplified and structured as a speedy summary procedure. The reinstitution procedure is based solely on enforcement law and the court must decide whether a specific claim can be allowed for enforcement in Liechtenstein. The aim of the court hearing is mainly for the court to verify whether the creditor’s claim is really based on a proper public record, such as a foreign judgment (this need only be alleged and not proven). In the course of this hearing, the creditor therefore presents and proves its claim. In so doing, the creditor is limited to proof by documents (normally the foreign judgment will be presented).
During a reinstitution procedure, the debtor is also heard and thus given its first chance to present and argue its position with regard to the claim for which the court, without having heard the debtor before, has issued a summary court order. The debtor can then oppose the claim based on formal arguments (eg, a lack of agreement in enforcement and acknowledgment, the foreign court not having been competent to hear the case or the debtor not having been heard in the foreign procedure) and material law (eg, public order).
Thus, the courts do not evaluate and decide whether a claim is valid as such – the question to be decided is simply whether it is correct and lawful to enforce the claim in Liechtenstein.
If reinstitution is not granted, the creditor is informed by the court that if it wishes to pursue its claim further, it will have to sue the debtor via regular procedures.
If reinstitution is granted, the court decision allowing for reinstitution serves as a legal title itself, based on which the creditor can demand enforcement of its claim. For the debtor, there is no normal appeal allowed against this decision (Article 51(4) of the Act on the Protection of Rights). However, the debtor may choose to file a disallowance claim. This is not a legal remedy in the sense of an appeal, but rather a standard claim aimed at a negative declaratory judgment. If a disallowance is granted, the court confirms that the claim whose enforcement the creditor requested in the preceding procedure does not exist or is not enforceable and is set aside. One of the specifics of the disallowance claim is that the creditor is treated as the claimant, thus placing the burden of proof on the creditor. The disallowance claim procedure does not deal with the question of whether a court was correct to confirm the enforceability of a creditors claim; rather, it is a full procedure on the merits of the claim raised by the creditor – notwithstanding the fact that a foreign judgment on such a claim may already exist.
The attempt to enforce a foreign judgment in Liechtenstein will often lead to an entirely new procedure on the merits of the case, in which all arguments, findings, proof and conclusions of the parties and the court in the foreign procedure, as well as the foreign judgment, will remain relatively irrelevant, as the Liechtenstein court will take evidence and hear witnesses itself and therefore arrive at a fresh ruling on the case.
What is the typical timeframe for the proceedings to grant recognition and enforcement?
The timeframe is highly dependent on the value in dispute and the effort to be taken. In straightforward cases, after having undergone proceedings in the two lower instances, a final and binding judgment by the Supreme Court can realistically be obtained within one to one-and-a-half years.
What fees apply to applications for recognition and enforcement of foreign judgments?
According to Article 28et seq of the Act on Court Fees, the decision fee ranges with respect to the value in dispute between Sfr9 (value in dispute under Sfr50) and Sfr3,400 (value in dispute more than Sfr1 million)
Must the applicant for recognition and enforcement provide security for costs?
According to Article 51 of the Enforcement Act, the Civil Procedure Code applies, unless regulated otherwise in the Execution Order. The Civil Procedure Code foresees a security for litigation costs if the applicant is not a Liechtenstein resident. The amount of security for litigation costs is within the discretion of the competent judge and depends on the costs of litigation to be expected, calculated according to the effort based on the value in dispute. Exceptions apply for Swiss and Austrian claimants.
Are decisions on recognition and enforcement subject to appeal?
If the recognition and enforcement of a foreign judgment is granted, there are two ways in which it can be appealed:
- Objection – the party against which the enforcement is conducted has the right of objection within 14 days of receipt of the enforcement granting notice if the enforcement of the foreign judgment was granted but the requirements set out in Article 52et seq of the Enforcement Act were not met.
- Recourse – this is the general remedy for appealing most court decisions (not judgments). A recourse deals with the invalidity reasons of a decision (eg, if the court was established incorrectly or the judge who granted the enforcement was biased). In general, a recourse must be filed within 14 days of receipt of the enforcement granting notice.
How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?
Interests, to be regarded by the court, must be contained in the initial claim. Foreign currencies can be enforced based on the exchange rate when the foreign judgment was originally rendered.
Enforcement against third parties
To what extent can the courts enforce a foreign judgment against third parties?
The enforcement of a judgment against third parties is possible only if it contains reference to this third party; however, in most cases, this third party would have to have been a party to the proceeding itself. However, if the third party holds assets based on a banking agreement or a trust, enforcement against this third party may also be possible.
Partial recognition and enforcement
Can the courts grant partial recognition and enforcement of foreign judgments?
According to Liechtenstein law, partial recognition and enforcement is granted. This depends on there being an application to enforce a judgment only partially or the court concluding that only parts of it can be enforced in Liechtenstein. The granting of partial recognition usually affects the reimbursement of costs.
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