Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
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 the state addressed.
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.
Click here to view the full article.