In a recent decision (BGE 143 III 51, 21 November 2016), the Swiss Federal Tribunal refused the recognition of a certificate of inheritance ("acte d'hoirie") established by an Egyptian Court. The Federal Tribunal considered the certificate of inheritance to be manifestly incompatible with the Swiss public policy ("ordre public") by contradicting the fundamental principles of the Swiss legal order in an unacceptable way.
The deceased, an Egyptian citizen born in 1940 and of Muslim faith died on 10 March 2007 without leaving any descendants or ascendants. He was married to a German citizen of Christian faith according to Egyptian and Sharia law. His estate includes properties located in France and Egypt, as well as movable assets deposited with banks in France, Germany, and Switzerland. On 5 May 2007 the Court for Family Affairs in Egypt issued the certificate of inheritance and ordered the devolution of the estate to the siblings of the deceased. The wife of the deceased did not participate in the procedure of the certificate of inheritance. Moreover, she was not mentioned therein. On 6 August 2010 the siblings of the deceased, wishing to receive the assets deposited in the two banks in Geneva, applied to the Court of First Instance of Geneva for recognition of the certificate of inheritance issued by the Egyptian Court. On 5 July 2011 the Court of First Instance of Geneva declared the application for recognition inadmissible as the certification of inheritance has neither been submitted in original nor with any additional certificate confirming that the certificate of inheritance has attained legal force. The judgement of the Court of First Instance of Geneva was affirmed by the Cantonal Court of Geneva on 23 March 2012.
However, on 18 July 2012 the second Civil Law Department of the Federal Tribunal admitted the appeal of the siblings and remitted the case to the Court of First Instance of Geneva for reconsideration. On 20 July 2015 the Court of First Instance of Geneva recognised and declared enforceable the certificate of inheritance. On 22 April 2016 the Cantonal Court of Geneva set aside this judgement of the Court of First Instance and rejected the application for recognition of the certificate of inheritance. Finally, the siblings lodged an appeal in civil matters and a constitutional appeal before the Federal Tribunal.
The Federal Tribunal stated that the Egyptian legislation does not recognise the succession between a Muslim and a non-Muslim. Moreover, under the Egyptian legislation, female descendants inherit only half of what male descendants inherit. Consequently, the recognition of the present certificate of inheritance in Switzerland would lead to the point that, on one hand, the widow could not assert any rights regarding the movable assets located in Switzerland due to her religion and, on the other hand, the sisters of the deceased could only claim fewer rights than their brothers due to their sex. These consequences therefore violate the Swiss fundamental principle of non-discrimination; inter alia, gender and religious convictions which fall within the scope of the Swiss public policy. Such drastic discriminations are not acceptable from a Swiss point of view even where the only connection to Switzerland is the location of the movable assets.
The siblings complained in their appeal that by refusing the recognition of the certificate of inheritance the judges of the canton of Geneva incorrectly applied the public policy, which constitutes one of the grounds for refusal pursuant to article 27 of the Swiss Federal Act on International Private Law. In particular, they claimed the absence of domestic connection to Switzerland.
The Federal Tribunal held that the recognition of a foreign decision should be refused if it is manifestly incompatible with the Swiss public policy. Furthermore, it reiterated that the public policy reservation has to be interpreted restrictedly, especially in cases of recognition and enforcement of foreign decisions. According to the Swiss jurisprudence, the intervention of the public policy reservation requires that the respective case has a "sufficient connection" to Switzerland. In the present case the requirement of the domestic connection is fulfilled as the movable assets are located in Switzerland. Therefore, the alleged incorrect application of the public policy reservation was held to be unfounded.
Finally, the Tribunal Federal stated that the certificate of inheritance substantively violates the Swiss public policy by running against the fundamental principles of the Swiss legal order. Therefore, the appeal in civil matters was rejected and the constitutional appeal was found inadmissible.
D. Outlook and consequences
This decision is of great importance for lawyers, estate planners and Swiss banks due to its substantial impact on estate planning and the devolution of foreign estates located in Switzerland. It is yet to be seen how the banks will react to this new jurisprudence. In order to avoid non-recognition of Sharia-based estate planning due to inconsistency with Swiss law, adequate consideration of the abovementioned decision is highly recommended.