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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 from, for instance, 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.
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