Enforcement immunity

Domestic law

Describe domestic law governing the scope of enforcement immunity.

The Swiss Federal Supreme Court treats immunity as a single concept and makes no distinction between immunity from jurisdiction and immunity from enforcement. The requirements set out in relation to jurisdictional immunity apply mutatis mutandis to immunity from execution and the determination of the nature of the assets against which enforcement is sought (by contrast to the nature of the matter in the context of immunity from jurisdiction). Accordingly, assets that are linked to the acts of a state in the exercise of its functions as a public authority, acta jure imperii, benefit from immunity, while assets that are linked to the private or commercial activities, acta jure gestionis, of a state do not. This assessment is made pursuant to Swiss law as the lex fori.

Hence, Swiss practice conditions enforcement measures against foreign sovereign states and related persons on three cumulative requirements:

  • the foreign state must have acted in its private capacity and not in its sovereign capacity;
  • the transaction out of which the claim against the foreign state arises must have a sufficient connection to Switzerland. The requirement is met and the required connection is established, for instance, when the claim originated or had to be performed in Switzerland, or when the debtor performed certain acts in Switzerland. Conversely, the mere location of assets in Switzerland or the existence of a claim based on an award rendered by an arbitral tribunal seated in Switzerland does not create such a connection; and
  • the assets targeted by the enforcement measures must not be earmarked for tasks that are part of the foreign state’s duty as a public authority, which are excluded from enforcement proceedings pursuant to article 92(1) of the Federal Debt Collection and Bankruptcy Act (Swiss Federal Supreme Court Decision 5A_681/2011, dated 23 October 2011).
Application of civil procedure codes

When enforcing against a state, would debt collection statutes and the enforcement sections of civil procedure codes or similar codes also apply?

General debt collection statutes and enforcement provisions do apply, subject to the reservation set out under the preceding section and specific provisions excluding enforcement on the ground of immunity, such as article 92(1) of the Federal Debt Collection and Bankruptcy Act, which provides that enforcement is excluded concerning assets belonging to a foreign state or a central bank and earmarked for tasks that are part of their duty as public authorities.

Switzerland is also a party to several international treaties that apply directly in this context, including the conventions mentioned in ‘Multilateral treaties’. Finally, Switzerland is a party to special multilateral instruments that have a bearing on the regime of immunity from enforcement:

  • the 1961 and 1963 Vienna Conventions on Diplomatic Relations (articles 22, 30 and 31) and Consular Relations (article 31);
  • the 1969 Convention on Special Missions;
  • the 1933 Convention for the Unification of Certain Rules Relating to the Precautionary Attachment of Aircraft;
  • the 1944 Convention on International Civil Aviation;
  • the 1948 Convention on the International Recognition of Rights in Aircraft;
  • the 1926 International Convention for the Unification of Certain Rules relating to Maritime Liens and Mortgages;
  • the 1952 International Convention relating to the Arrest of Seagoing Ships; and
  • the 1958 Convention on the High Seas.

 

Further, Switzerland is home to many international organisations with which it has entered into host state agreements. Most of these agreements include provisions relating to the immunity of enforcement against the assets they hold or against their employees. The 2007 Federal Act on the Privileges, Immunities and Facilities and the Financial Subsidies granted by Switzerland as a Host State, as well as the corresponding Ordinance, set out, inter alia, the possible beneficiaries of privileges, immunities and facilities in accordance with international law.

Consent for further enforcement proceedings

Does a prior submission to the jurisdiction of a court or tribunal constitute consent for any further enforcement proceedings against the property of the state?

A state can waive its immunity from enforcement by a clear and unequivocal statement, either explicitly or by conclusive acts. There can only be a waiver of immunity insofar as an immunity exists (ie, in respect of acta jure imperii).

According to legal doctrine, an explicit waiver may be contained in a treaty, an agreement or a binding contract or any other statement made in writing. A waiver may be implied where the state has earmarked funds or other assets specifically to settle disputes or make payments for the debts incurred in relation to the transaction in dispute. A waiver may also be implied where the state, or the ‘appearance’ of a state, initiates court proceedings to defend a lawsuit before a court without raising a plea of immunity (Swiss Federal Supreme Court Decision 4A_541/2009, dated 8 June 2010). Legal doctrine is divided on whether entering into an arbitration agreement can alone imply a waiver of any immunity from enforcement. The most likely position is that the state’s agreement to arbitrate will not imply a waiver of its immunity from enforcement, absent other conclusive acts.

Article 32 of the Vienna Convention on Diplomatic Relations and article 45 of the Vienna Convention on Consular Relations provide that a waiver must be express. Moreover, these conventions specifically provide that a waiver of immunity from jurisdiction does not imply a waiver of immunity from enforcement; separate waivers are required. This is also the case of article 20 of the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property.

Property or assets subject to enforcement or execution

Describe the property or assets that would typically be subject to enforcement or execution.

Any property located in Switzerland belonging to the state or its instrumentalities may be subject to enforcement. In general, such assets include all assets used or intended to be used for commercial purposes.

Assets covered by enforcement immunity

Describe the assets that would normally be covered by enforcement immunity and give examples of any restrictive or broader interpretations adopted by the courts.

Pursuant to article 92(1) of the Federal Debt Collection and Bankruptcy Act, enforcement is excluded with respect to ‘assets belonging to a foreign state or a central bank and assigned to tasks which are part of their duty as public authorities’.

The concept of tasks belonging to a public authority is broadly interpreted by the Swiss Federal Supreme Court. It always includes the assets of diplomatic missions and generally includes cultural goods (items of significant cultural importance specific to the country’s heritage). However, the Swiss Federal Supreme Court has considered that a dispute relating to a lease agreement entered into by the state was not covered by immunity from enforcement. Further, whether in the form of cash or held on bank accounts, money is exempt from seizure only if clearly earmarked for concrete public purposes, which implies a separation from other assets. However, bank accounts and other assets belonging to an embassy are presumed to be for public purpose and are thus immune from enforcement. The same applies to funds specifically allocated to:

  • the purchase of arms;
  • the rolling stock of a state railway company;
  • the shares of an international corporation created by an international agreement but performing public functions; and
  • a cultural centre or buildings for foreign citizens run by a foreign consulate in Switzerland.

 

Swiss case law has also recognised overflight rights as assets falling under acta jure imperii and thus immune from enforcement.

Explain whether the property or bank accounts of a central bank or other monetary authority would be covered by enforcement immunity even when such property is in use or is intended for use for commercial purposes.

Pursuant to article 92(1) of the Federal Debt Collection and Bankruptcy Act, enforcement is excluded with respect to ‘assets belonging to a foreign state or a central bank and assigned to tasks which are part of their duty as public authorities’. Accordingly, property intended for performance of acts of public authority will be considered immune from enforcement, while property intended for private acts will be subject to execution.

For the rest, the general rules on enforcement immunity apply.

Test for enforcement

Explain whether domestic jurisprudence has developed any further test that must be satisfied before enforcement against a state is permitted.

Swiss law requires a sufficient connection to Switzerland to lift sovereign immunity. The connection to Switzerland arises exclusively under Swiss law and is not a matter of customary international law. The connection is established for instance when the claim originated or had to be performed in Switzerland, or when the debtor performed certain acts in Switzerland. Conversely, the mere location of assets in Switzerland or the existence of a claim based on an award rendered by an arbitral tribunal seated in Switzerland does not create such a connection.

Service of arbitration award or judgment

How is a state served with process or otherwise notified before an arbitration award or judgment against it (or its organs and instrumentalities) may be enforced?

Under Swiss law, service is handled by courts directly after the claimant has filed a claim. According to the legal doctrine and the Guidelines of the Swiss Federal Office of Justice, the same procedural requirements apply to court proceedings resulting from an application to secure the enforcement of an arbitral award against a foreign state and to proceedings for enforcement of a court judgment involving a foreign state.

For service on foreign states, article 16 of the 1972 European Convention on State Immunity applies by analogy; that is, service must proceed via diplomatic channels. The Swiss Federal Supreme Court does not yet recognise the time limits foreseen in the UN Immunity Convention for service as amounting to customary international law, and if the foreign state elects domicile with its mission, legal proceedings shall be served on the mission. The same holds true if the foreign state elects domicile with a lawyer. Reasonable time limits must also lapse before the court can enter a judgment by default against the foreign state and before the judgment becomes final (exhaustion of the right of appeal). According to the legal doctrine, state entities with a separate legal personality can be served in the same way as private entities.

History of enforcement proceedings

Is there a history of enforcement proceedings against states in your jurisdiction? What part of these proceedings is based on arbitral awards?

One of the leading wealth centres in the world and the host of many international organisations, Switzerland is a popular place for enforcement proceedings, including against states. There are, however, no statistics as to what extent these proceedings are based on arbitral awards. Some information is available in the ASA Bulletin, which is the official journal of the Swiss Arbitration Association (see www.arbitration-ch.org/en/publications/asa-bulletin/index.html), and includes leading decisions of Swiss courts to the extent that they enter the public domain.

Public databases

Are there any public databases through which assets held by states may be identified?

There are no public databases identifying assets held by states or their instrumentalities.

However, there are several publicly available sources that provide information on assets located in Switzerland, including:

  • the commercial register provides information on companies (eg, share capital, legal seat, address and corporate purpose). Each canton maintains its own register, which is freely accessible. A summary version of the commercial register is available online (www.zefix.ch/en/);
  • the Swiss Official Gazette of Commerce, in addition to gathering some of the information published in cantonal commercial registers, provides information regarding bankruptcies, composition agreements, debt enforcement, calls to creditors, lost titles, precious metal control, other legal publications, balances and company notices. It is also available online (www.sogc.ch);
  • the land register records all plots of land in Switzerland, with the exception of property in the public domain. Each canton maintains its own land register, which can be consulted upon the showing of a legitimate interest (eg, for purposes of contractual negotiations for the purchase of property);
  • the Swiss aircraft registry contains the records of all Swiss-registered aircraft and provides detailed information regarding the owner and the holder, the type of aircraft, its year of construction, the serial number, the maximum take-off mass and the fee according to its noise level. It is available online (https://app02.bazl.admin.ch/web/bazl/en/);
  • the debt enforcement and bankruptcy register includes all debt collection proceedings filed against a debtor, and can be consulted by showing a prima facie legitimate interest, upon request. An unofficial register recording wills and other testamentary dispositions also exists. This register is, however, not exhaustive and only contains information that has been provided voluntarily;
  • in certain cantons (eg, Vaud and Fribourg), it is possible, subject to certain conditions, to access information contained in a person’s tax certificate; and
  • judgments rendered by cantonal civil courts are, in principle, accessible to the public (article 54 of the Swiss Code of Civil Procedure), although in practice they are not always published; a copy may be provided in a redacted form upon showing of a legitimate interest. Decisions by the Swiss Federal Supreme Court are available on the court’s website (www.bger.ch).

 

There is no register of bank accounts in Switzerland as Swiss banking secrecy protects the privacy of banks’ clients.

Court competency

Would a court in your state be competent to assist with or otherwise intervene to help identify assets held by states in the territory?

Swiss civil courts are not competent to assist with or otherwise intervene to help identify assets held by a foreign state or its instrumentalities. Moreover, there is no discovery process available under Swiss civil procedural law.

Law stated date

Correct on

Give the date on which the information above is accurate.

11 June 2020