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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)?
Article 52et seq of the Enforcement Act mentions no special types of judgment which are excluded from enforcement (ie, all types of judgment meeting the requirements stipulated in the Enforcement Act are enforceable).
However, Liechtenstein’s international agreements with Austria and Switzerland stipulate some exemptions. For example, judgments concerning bankruptcy (only Austria), inheritance and estate (only Austria), guardianship, administrative penalties and injunctions are not enforceable in Liechtenstein.
How are foreign judgments subject to appeal treated?
Foreign judgments which are subject to appeal are generally not enforceable in Liechtenstein. Judgments must be legally binding on the parties to be enforceable.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
In general, the recognition and enforcement of foreign judgments requires an overall equality of jurisdictions. This means that foreign jurisdiction must provide a certain level of quality and accuracy comparable with Liechtenstein. In general, a foreign judgment must meet the following requirements for recognition and enforcement:
- international competence of the foreign state – the foreign state and no other state must be competent or have been competent to decide on the legal matter;
- foreign judgment’s legal force – the judgment must not be subject to appeal;
- maintaining public order in Liechtenstein – the judgment must not violate public order; and
- strict reciprocity.
Thus, an inalienable condition to any enforcement of foreign judgments or titles is the status of reciprocity (ie, declaration reciprocity) between Liechtenstein and the foreign nation that issued the judgment. Equally, the claim to be enforced would have to be possible as well as admissible under Liechtenstein law.
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?
In this regard, there is a distinction between Austria and Switzerland as countries with an agreement on recognition and enforceability with Liechtenstein and countries with which no agreement has been entered into. Judgments passed in Austria or Switzerland do not have to meet substantive requirements if they meet the requirements of the respective agreement.
In case of judgments passed in other countries, although a formal acknowledgement and thus an immediate enforcement of a foreign judgment is not possible in Liechtenstein, domestic law offers specific procedures which may nevertheless provide a chance for a successful plaintiff, being a creditor on the basis of a foreign judgment, to achieve its goal.
Based on a foreign judgment or the claim confirmed therein, the creditor may apply for a payment order (if the foreign judgment states the debtors' obligation to pay a certain amount of money or transfer certain assets to the creditor) or a court order for a specific performance by the debtor (if the foreign judgment is of a declaratory nature or states the debtors' obligation to commit or not commit certain acts).
Summary court order
Summary court orders have the quality of a Liechtenstein judgment and can therefore be enforced in Liechtenstein. Thus, although foreign judgments cannot be immediately enforced in Liechtenstein, they can easily be converted into a Liechtenstein court order and thus enforced in Liechtenstein.
However, as summary court orders are issued without the opposing party being heard (ex parte payment orders), the debtor can object to and thus eliminate the court order by simple notice to the court. The abovementioned conversion therefore leads to immediate results only if the opposing party does not object.
Reinstitution procedure If a summary court order is disputed and therefore nullified, Liechtenstein law provides a specific procedure known as the ‘reinstitution procedure’ (Article 49seq of the Act on the Protection of Rights). If a creditor is granted a summary court order and the court order is then nullified on the debtor’s objections, the creditor may object to the nullification and demand that the court set aside the debtor's objection and reinstitute the creditor's summary court order.
Such a demand for reinstitution can be considered a regular claim and will lead to a court procedure; however, such procedures are simplified and structured as a speedy summary procedure. The reinstitution procedure is based solely on enforcement law and the court must decide whether a specific claim can be allowed for enforcement in Liechtenstein. The aim of the court hearing is mainly for the court to verify whether the creditor’s claim is really based on a proper public record, such as a foreign judgment (this need only be alleged and not proven). In the course of this hearing, the creditor therefore presents and proves its claim. In so doing, the creditor is limited to proof by documents (normally the foreign judgment will be presented).
During a reinstitution procedure, the debtor is also heard and thus given its first chance to present and argue its position with regard to the claim for which the court, without having heard the debtor before, has issued a summary court order. The debtor can then oppose the claim based on formal arguments (eg, a lack of agreement in enforcement and acknowledgment, the foreign court not having been competent to hear the case or the debtor not having been heard in the foreign procedure) and material law (eg, public order).
Thus, the courts do not evaluate and decide whether a claim is valid as such – the question to be decided is simply whether it is correct and lawful to enforce the claim in Liechtenstein.
If reinstitution is not granted, the creditor is informed by the court that if it wishes to pursue its claim further, it will have to sue the debtor via regular procedures.
If reinstitution is granted, the court decision allowing for reinstitution serves as a legal title itself, based on which the creditor can demand enforcement of its claim. For the debtor, there is no normal appeal allowed against this decision (Article 51(4) of the Act on the Protection of Rights). However, the debtor may choose to file a disallowance claim. This is not a legal remedy in the sense of an appeal, but rather a standard claim aimed at a negative declaratory judgment. If a disallowance is granted, the court confirms that the claim whose enforcement the creditor requested in the preceding procedure does not exist or is not enforceable and is set aside. One of the specifics of the disallowance claim is that the creditor is treated as the claimant, thus placing the burden of proof on the creditor. The disallowance claim procedure does not deal with the question of whether a court was correct to confirm the enforceability of a creditors claim; rather, it is a full procedure on the merits of the claim raised by the creditor – notwithstanding the fact that a foreign judgment on such a claim may already exist.
The attempt to enforce a foreign judgment in Liechtenstein will often lead to an entirely new procedure on the merits of the case, in which all arguments, findings, proof and conclusions of the parties and the court in the foreign procedure, as well as the foreign judgment, will remain relatively irrelevant, as the Liechtenstein court will take evidence and hear witnesses itself and therefore arrive at a fresh ruling on the case.
What is the limitation period for enforcement of a foreign judgment?
The general limitation period for enforcement of (foreign) judgments is 30 years.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
Recognition and enforcement can be refused if they do not meet the relevant requirements (ie, lacking international competence, legal force, public order and reciprocity) and if:
- enforcement would force a person to act in a way which is prohibited or not constrainable under domestic law;
- enforcement would affect the civil status of a Liechtenstein citizen;
- the person against whom the enforcement is conducted was, because of irregularities, unable to attend court proceedings or exercise its party rights (lacking right to be heard); or
- enforcement aims for a right or claim which is prohibited in Liechtenstein in respect of public order and morality.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
The district court, as the competent court, reviews the service of process in the original foreign proceedings to examine if the person, against whom the enforcement is conducted, was granted party rights adequately. Therefore, if the service of process was not conducted properly, recognition and enforcement of the foreign judgment will not be granted. This is especially true if service was conducted by a procedural agent other than a court, such as a public notary or an attorney at law, and service is not conducted by official court documents.
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?
Liechtenstein’s asset protection policy results in few recognitions and enforcements. Therefore, there is a tendency in case law to dismiss applications for enforcement rather than approve them.
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?
Where no enforcement agreement is applicable, the court has the full power to consider and decide on the merits of the case, irrespective of an existing foreign decision.
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?
In principle, it is possible to have parallel or concurrent proceedings; however, res iudicata can be an issue. Therefore, it must be determined whether it makes sense to have foreign and domestic proceedings involving the same parties or disputes.
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