Which domestic laws and regulations govern the recognition and enforcement of foreign judgments in your jurisdiction?
The Private International Law Act governs the recognition and enforcement of foreign judgments, unless the judgment emanates from a state that is a party to a bilateral or multilateral treaty for the reciprocal recognition and enforcement of foreign judgments to which Switzerland is also a party.
Which international conventions and bilateral treaties relating to the recognition and enforcement of judgments apply in your jurisdiction?
The most relevant treaty is the 2007 Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Lugano Convention).
In addition to Switzerland, Denmark, Island and Norway, the Lugano Convention has been ratified by the European Union. The convention, which is essentially identical to EU Regulation 44/2001 but has not been amended to reflect the recast Brussels I Regulation that entered into effect in January 2015, therefore governs the recognition and enforcement of judgments from all EU member states in Switzerland.
In that respect, the Lugano Convention has replaced or supersedes bilateral treaties previously concluded by and between Switzerland and several EU countries.
Which courts are competent to hear cases on the recognition and enforcement of foreign judgments?
Under both the statutory regime (ie, the Private International Law Act) and the Lugano Convention, the procedure for enforcement will vary depending on whether the judgment creditor applies for a standalone declaration of enforcement, or seeks recognition and enforcement of the foreign judgment within the framework of debt collection proceedings.
Cases on recognition and enforcement are heard by the cantonal enforcement court (tribunal cantonal de l'exécution), either at the seat of the judgment debtor or at the place where the foreign judgment must be executed.
Recognition of a foreign judgment (but not enforcement) may also come before another court as a preliminary question.
Distinction between recognition and enforcement
Is there a legal distinction between the recognition and enforcement of a judgment?
Under Swiss law, there is a formal distinction between recognition and enforcement of a foreign judgment. In broad terms, the recognition of a foreign judgment extends the judgment's effects to the territory of Switzerland. The recognition is, therefore, a prerequisite for the enforceability, and the actual enforcement, of a foreign judgment in Switzerland.
Recognition of a foreign judgment can be sought separately or, as mentioned above, as a preliminary issue in enforcement proceedings. The question of whether a party will seek recognition of a foreign judgment only or both recognition and enforcement of the judgment depends, among other things, on the nature and the content of the judgment. Declaratory judgments, for example, are not enforceable as they merely establish the legal position of the parties with binding effect, but – by contrast to monetary judgments, for instance – do not order a party to perform or omit certain (enforceable) acts.
Ease of enforcement
In general, how easy is it to secure recognition and enforcement of foreign judgments in your jurisdiction?
Recognition and enforcement are relatively easy to secure where the Lugano Convention governs the reciprocal recognition and enforcement of foreign judgments. However, even outside the scope of the Lugano Convention, Swiss law – and the Swiss courts – take a fairly liberal approach to recognising and enforcing foreign judgments.
Under Swiss law, the possession of a monetary judgment, including a foreign judgment, is a ground in and of itself to obtain an ex parte injunction in the form of an attachment of the debtor's Swiss assets, which often is the initial step in enforcement proceedings. If the foreign judgment emanates from a court located in a state that is a signatory of the Lugano Convention, then the court issuing the ex parte attachment order may, at the same time, issue a declaration of enforceability.
Are any reforms to the framework on recognition and enforcement of judgments envisioned or underway?
The Private International Law Act was recently amended to facilitate the recognition of bankruptcy and related decisions, simplify recognition proceedings and improve coordination with foreign proceedings. The new rules, and those that have been amended, will enter into force on 1 January 2019.
Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
The Private International Law Act and the Lugano Convention do not explicitly exclude certain types of judgment from recognition and enforcement.
They, however, set out certain requirements, which – as a result – exclude certain types of judgment from recognition or enforcement. For instance, according to the prevailing view, interim injunctions may be neither recognised nor enforced under the Private International Law Act. Still under the statutory regime, a judgment may not be recognised if an ordinary appeal may still be filed in the state of origin.
Under certain conditions, default and non-monetary judgments may be recognised or enforced under both the statutory regime and the Lugano Convention.
How are foreign judgments subject to appeal treated?
Under the Lugano Convention, a foreign judgment is enforceable in Switzerland if it is enforceable in the state of origin, even if the judgment may still be subject to appeal. However, the court "may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged against the judgment in the State of origin or if the time for such an appeal has not yet expired" (Article 46(1)).
Under Articles 25(b) and 28 of the Private International Law Act, a foreign decision will be recognised and executed in Switzerland only if, among other things, no ordinary appeal can be lodged against the decision, or the decision is final. In other words, it is a mandatory requirement for recognition and enforcement of a foreign judgment under the Private International Law Act that the judgment be no longer subject to an ordinary appeal.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
Under the statutory regime (the Private International Law Act), the judgment creditor must file a copy of the foreign judgment certified in the state of origin, as well as a confirmation, generally issued by the court in the state of origin, that the judgment is final. Proof of the finality of the foreign judgment may result from other documents, in which case Swiss courts may waive the requirement for a formal confirmation.
Under the Lugano Convention, the judgment creditor must produce a copy of the foreign judgment certified in the state of origin and a certificate in the form of Annex V to the Lugano Convention delivered by the court of the state of origin or other documents confirming that the foreign judgment is enforceable in the state of origin.
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
Swiss courts will review neither the substance nor the merits of the foreign judgment, and they will not refuse to enforce the judgment on the basis that it contains an error of fact or law. Both the Private International Law Act and the Lugano Convention expressly prohibit courts from reviewing the merits of a foreign judgment.
What is the limitation period for enforcement of a foreign judgment?
Neither the Private International Law Act nor the Lugano Convention provide for limitation periods for enforcement.
That said, the judgment debtor will be able to raise a statute of limitation defence in the proceedings brought by the creditor to enforce a judgment in Switzerland, the relevant limitation period being the period that applies to the debt upheld in the foreign judgment.
Under Swiss substantive law, debts upheld in a judgment are subject to a 10-year statute of limitation. Therefore, where Swiss law governs the statute of limitation, the limitation period is in practice 10 years from the date of the foreign judgment.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
Under the statutory regime (the Private International Law Act), Swiss courts will verify that the foreign court had proper jurisdiction over the defendant. Moreover, Swiss courts will refuse recognition and enforcement if the foreign judgment manifestly breaches substantive or procedural public policy in Switzerland. Procedural public policy includes the requirement that the defendant be given adequate notice and an opportunity to be heard in an impartial proceeding (due process).
Under the Lugano Convention, Swiss courts will not verify that the foreign court had proper jurisdiction over the defendant, except in very specific cases (exclusive jurisdiction, insurance matters and consumer matters). But recognition and enforcement will be refused if:
- recognition is manifestly contrary to public policy in Switzerland;
- the foreign judgment was given in default of appearance and the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable it to arrange for its defence;
- the foreign judgment is irreconcilable with a judgment given in a dispute between the same parties in Switzerland; or
- the foreign judgment is irreconcilable with an earlier judgment given in another state bound by the Lugano Convention or in a third 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.
The above grounds for refusal will not be examined by the lower court. But for minimal formal requirements, enforcement is automatic under the Lugano Convention and any grounds for refusal will be examined only if and when the judgment debtor appeals the lower court's decision.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
Under the statutory regime, the enforcing court will review the service of process in the original foreign proceedings if the judgment debtor argues that it was not served with the document which instituted the foreign proceedings in accordance with the laws of its domicile or its usual residence, unless the judgment debtor proceeded in the state of origin with the defence without reserving its rights to challenge service of process in future enforcement proceedings abroad. If the foreign judgment was given in default of appearance, the application for recognition and enforcement will be denied, unless it is accompanied by an official document demonstrating that the defendant was served properly and afforded an opportunity to be heard.
Under the Lugano Convention, the enforcing court does not make any material review. On appeal, however, the judgment debtor may argue that it 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 it to arrange for its defence.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
Under both the Lugano Convention (Article 34(1)) and the statutory regime (Article 27 of the Private International Law Act), recognition and enforcement of a foreign judgment will be denied if the recognition of the judgment would manifestly be contrary to, and incompatible with, Swiss public policy.
On the one hand, the recognition and enforcement of a foreign judgment would infringe Swiss public policy where principal formal requirements, such as the right to be heard, have not been met in the foreign proceedings. On the other hand, Swiss public policy also sets substantive restrictions to foreign judgments, thus providing for a – very limited – exception to the principle that a foreign judgment must not be reviewed on the merits (Article 27(3) of the Private International Law Act and Article 36 of the Lugano Convention).
Public policy defences are rarely successful in commercial cases in Switzerland. In a 2012 decision, the Swiss Supreme Court left the issue of whether punitive damages granted by a foreign court could breach public policy in Switzerland undecided. A public policy defence is raised more often in family law cases. In 2016, for example, the Supreme Court held that an Egyptian affidavit of heirship excluding the deceased's wife from inheriting due to her religion could not be enforced in Switzerland.
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
Under the Lugano Convention, there is basically no review of the personal and subject-matter jurisdiction of the court of a member state that has rendered the judgment. Only as an exception, Article 35 of the Lugano Convention allows for a review of jurisdiction – for example, in insurance and consumer cases or where it appears that exclusive jurisdiction rules as set forth by Article 22 of the convention have not been observed.
For judgments outside the scope of the Lugano Convention, it is a mandatory requirement for the recognition of a foreign judgment that it has, by Swiss standards, been rendered by the proper court (so-called ‘indirect jurisdiction’). A foreign court is considered competent under Article 26 of the Private International Law Act if, among other things:
- the respondent was domiciled in the state in which the judgment was rendered;
- the judgment concerns a monetary claim and jurisdiction of the foreign court was based on a forum selection clause between the parties;
- the judgment concerns a monetary claim and the respondent made an unconditional appearance before the foreign court (ie, the respondent proceeded on the merits without a reservation regarding jurisdiction); or
- in the case of a judgment on a counterclaim, the foreign court had jurisdiction to hear the principal claim and the two claims were related.
Apart from these general rules, the Private International Law Act contains additional provisions addressing the places of jurisdiction that are considered acceptable for specific types of claim.
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
Under Articles 34(3) and (4) of the Lugano Convention, a foreign judgment will not be recognised if it is in conflict with a judgment rendered in a dispute between the same parties over the same matter. This principle applies irrespective of whether the conflicting judgment was rendered in Switzerland or abroad, provided, however, that in the latter case the conflicting judgment fulfils the conditions necessary for its recognition in Switzerland, and was rendered earlier than the judgment for which recognition is sought. Concurrent proceedings (foreign or domestic) do not hinder the recognition and enforcement of judgments issued in a signatory state to the Lugano Convention for as long as they have not resulted in an enforceable judgment.
The recognition of a foreign judgment rendered by a court of a non-member state of the Lugano Convention is denied if a claim regarding the same dispute was first filed in Switzerland or if a judgment pertaining to the same claim was rendered in Switzerland before recognition of the foreign judgment is sought. The same applies if the same dispute was first decided in a third state, provided that the earlier judgment meets the requirements for recognition in Switzerland.
What defences are available to the losing party to a foreign judgment that is sought to be recognised and enforced in your jurisdiction?
The procedure for defending the recognition and enforcement of a judgment varies depending on the regime.
Under the statutory regime (ie, the Private International Law Act), the judgment creditor must file an application for recognition and enforcement of the judgment. The application will be served on the judgment debtor that will be able to raise defences against the enforcement. The judgment debtor may raise defences regarding the nature of the foreign judgment (finality and enforceability in the state of origin), form (judgment creditor's failure to provide the requested documents) and substance (any of the grounds for refusal explicitly listed by the Private International Law Act).
Under the Lugano Convention, foreign judgments are automatically recognised and enforceability will be granted provided that minimal formal requirements are met. To challenge the recognition or enforcement, the judgment debtor must appeal against the granting of the recognition or enforcement. In the appeal, the judgment debtor may raise only the defences expressly provided for in Articles 34 and 35 of the Lugano Convention.
What injunctive relief is available to defendants (eg, anti-suit injunctions)?
Anti-suit injunctions are not available to defendants. A party that has reasons to think that urgent interim relief will be sought against it in ex parte proceedings may, however, file a pre-emptive brief. The pre-emptive brief has a six-month validity period and will be taken into account by the court as and when an ex parte application is filed. The filing of a pre-emptive brief is effective where the party seeking to enforce a foreign judgment in Switzerland starts by trying to attach assets of the judgment debtor in ex parte proceedings. Where the Lugano Convention applies and the judgment creditor is seeking both an attachment order and a declaration of enforceability, the court may not consider the pre-emptive brief when ruling on the declaration of enforceability as such declaration has to be issued in unilateral proceedings.
Recognition and enforcement procedure
What is the formal procedure for seeking recognition and enforcement of a foreign judgment?
The most efficient way to have a foreign monetary judgment enforced in Switzerland is to initiate debt enforcement proceedings under the Swiss Debt Enforcement and Bankruptcy Act (DEBA).
Upon the creditor's request, the debt collection office serves a payment order on the debtor. The debtor may file an objection within 10 days of service of the payment order. If the debtor does not object to the payment order, the debt collection office will proceed to enforce the debt. If the debtor files an objection, the creditor, within 10 days of being informed thereof, must commence summary inter partes proceedings before the cantonal court of first instance to have the objection set aside.
It is at this stage that the court will decide, as a preliminary issue, on the recognition and enforcement of the foreign judgment.
However, a party may also choose to seek first a court declaration on the recognition and enforceability of a foreign judgment in separate exequatur proceedings. In such a case, the application must be directed to the cantonal court of first instance.
What is the typical timeframe for the proceedings to grant recognition and enforcement?
The whole procedure usually takes between three months and two years (if it goes all the way to the Supreme Court), provided that there is no unexpected delay resulting, for instance, from the service of documents abroad.
What fees apply to applications for recognition and enforcement of foreign judgments?
The costs of the proceedings depend on the amount in dispute and will have to be advanced by the claimant. If the claimant prevails, these costs will eventually have to be borne by the respondent. Further costs may arise in connection with the services of the debt collection office, the service of legal documents outside Switzerland, objection and appeal proceedings, or translation costs. Generally, court costs are lower if enforcement of a foreign judgment is sought within the framework of debt collection proceedings rather than in separate exequatur proceedings.
Must the applicant for recognition and enforcement provide security for costs?
Under the Swiss Civil Procedure Code, the court may demand that the claimant make an advance payment up to the amount of the expected court costs. By contrast, the claimant need not provide security for the party costs of the opposing party.
Are decisions on recognition and enforcement subject to appeal?
The decision of the cantonal court of first instance is subject to appeal to the higher cantonal court whose decision can be challenged to the Supreme Court, if certain prerequisites are met. An appeal to the Supreme Court does not automatically stay execution, yet the court may order a stay in appropriate cases.
How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?
Swiss courts will not alter the rate of interest or the currency of a claim granted under a foreign judgment or under the applicable substantive law. However, if enforcement of a money judgment is sought under DEBA, monetary claims must be converted into Swiss francs as per the exchange rate on the date when the request for debt collection is filed.
Enforcement against third parties
To what extent can the courts enforce a foreign judgment against third parties?
Generally, Swiss courts will not enforce a foreign judgment against third parties. However, under narrowly restricted circumstances, the attachment of assets owned by a third party – and the subsequent enforcement of a foreign judgment against such assets – is possible based on the concept of ‘piercing the corporate veil’. For this concept to apply, case law requires that the use of the third party, or alter ego, formally holding the assets amount to an abuse of rights; mere economic identity between the debtor and the third party is insufficient. However, it is fairly difficult to rely on this concept in the context of enforcement proceedings.
Partial recognition and enforcement
Can the courts grant partial recognition and enforcement of foreign judgments?
Swiss courts can grant partial recognition and enforcement of foreign judgments. For example, Swiss courts may refuse to recognise parts of foreign judgments that are contrary to public policy in Switzerland, while they recognise other parts of the same judgments.