Recognition and Enforcement of Foreign Titles in Svizzera

In Switzerland, the following means can help finding out about the financial and other situation of a debtor:

1. If the debtor is a legal entity, an extract from the register of commerce can be obtained online by accessing https://www.zefix.ch. The extracts show all the particulars of the registration, legal form, organs, capital and legal capacity of the legal entity. In addition, some underlying corporate documents, such as articles of association, minutes and reports on capital increases, minutes on elections etc. can also be requested from the applicable Cantonal register of commerce. It would also show, whether this entity is currently undergoing an insolvency procedure, however, it does not show the exact financial status of the annual reports.
2. On the homepage of the Swiss Official Commercial Gazette (https://www.shab.ch), any information on published changes in registered companies and the openings of bankruptcy or other insolvency proceedings can be searched and retrieved.
3. Any creditor, by declaring and evidencing a certain interest, can request an extract from the debt register at the seat or place of residence of the debtor. A foreign judgement against the debtor certainly suffices to show such interest. The extract shows how many and what kind of debt prosecution requests or insolvency proceedings are pending against the debtor.
4. If the creditor knows the address of the debtor or has other hints with regard to the place of residence or business, it may request from the real estate authorities an extract from the land registry that will show the owner and any debts thereon. For that purpose, evidence about the legitimate reasons must be filed. However, information on the ownership of such real estate property can also be obtained by using an online tool. Access is a bit limited, and one might sometimes have to wait until the next day to obtain an answer. Online accessibility still varies between the Cantons.
   

There are certain private monitoring services that offer or claim to have further information on debtors, but they have to be remunerated and it is not sure whether they are always accurate and complete.

Yes, foreign judgments need to be recognized and declared enforceable before enforcement steps or other securing measures can be initiated against the debtor. There exist separate court procedures for the recognition and declaration of enforceability only. However, the question of enforceability is very often part of the enforcement claim itself and is also decided by the competent enforcement court as a preliminary question. In the latter case the declaration of enforceability does not obtain legal force and effect on its own, but only in connection with the particular enforcement measure.

For foreign judgments rendered in an EU-country plus certain EFTA countries (i.e. Norway, Iceland and Liechtenstein) the Lugano Convention (“LugÜ”) applies. 

Pursuant to the LugÜ a judgment obtained from a court of a different LugÜ-country must in principle be recognized in Switzerland, except for a few formal reasons for refusal of recognition as set forth in Art. 34 LugÜ. These are the following:

1. A judgment contradicts formal and material ordre public, or
2. A defaulting respondent has not been served properly with the initial claim or initial documents, or
3. A judgment is contrary to a former decision between the same parties rendered in the state where recognition is sought, or
4. A judgment is contrary to a former decision between the same parties based on the same claim rendered in a different state.
   

Moreover, the mandatory and exclusive places of jurisdiction based on the LugÜ (i.e. consumer, insurance and certain register matters) must have been complied with (Art. 35 LugÜ). Other than that, jurisdiction is not subject to review as it is not considered a matter of ordre public (Art. 25 Nr. 3 LugÜ).

In any case, a LugÜ-judgment shall never be subject to a substantive revision (Art. 36 and 45 Nr. 2 LugÜ).

As per Art. 38 and 53 LugÜ the decision on declaration of enforceability of an EU-judgment can be initially requested to be rendered in an ex parte procedure. The competent court must and may, thus, only check whether there is a decision in the sense of the LugÜ, which is declared enforceable by the original (foreign) court in accordance with the formalities of Art. 53 LugÜ. This includes the filing of the form as per Annex V to the LugÜ, which contains a declaration of enforceability by the original state.

The debtor may file an appeal against such enforceability decision. With such appeal, the conditions of Art. 34 and 35, as set out above, may and will have to be determined to the extent brought forward by the appealing debtor.

Provided no specific treaties exist between Switzerland and the country that has rendered the judgment, a Swiss judge or authority deciding on the recognition and enforcement of a non-EU judgment would apply the Swiss Private International Law Act (“PILA”). 

Pursuant to Art. 25 and 28 PILA, foreign court decisions will be recognized and declared enforceable in Switzerland if, cumulatively

1. jurisdiction of the deciding court or authority is acceptable, (Art. 25 lit. a),
2. the decision is final or there is no ordinary means of appeal against it (Art. 25 lit. b), and
3. no ground for refusal as per Art. 27 PILA exists (Art. 25 lit. c).
   

Art. 26 PILA sets out the exhaustive list of reasons under which jurisdiction of foreign courts can and will be accepted by Swiss courts in compliance with Art. 25 lit. a PILA. This is the case e.g. for valid jurisdiction agreements in case of monetary disputes, or claims decided at defendant’s seat, or if the decision was rendered at a place in accordance with specific places of jurisdiction accepted by the PILA, or in case of an unconditional acceptance of jurisdiction etc.

Art. 27 PILA in turn stipulates the grounds for refusal as per Art. 25 lit. c PILA. In addition to the main reason of a judgment being contrary to Swiss (formal and/or material) ordre public, the other reasons, which must be evidenced by the benefitting party, are basically reasons of due process and lack of identical pending disputes etc. Most importantly, also under the PILA, a foreign judgment shall not be revised as to its content and reasoning.

The fulfillment of these conditions will be assessed (i) by a court deciding on the question of enforceability only, or (ii) by an enforcement court as a preliminary question in the course of a contradictory enforcement procedure.

It depends on whether the recognition of the foreign decision is subject to a contradictory enforcement procedure or not. However, as the ex parte declaration of enforceability as per the LugÜ is subject to a so called LugÜ-appeal, this can prolong the duration of the process. As an estimation it may take from a few months to maybe one year.

If, however, the decision on enforceability is appealed against, such duration would be prolonged by up to one more year.

In case of an EU-judgment, which is subject to Art. 52 LugÜ, the courts may not make the costs for a declaration of enforceability dependant on the amount in dispute. Thus, the costs are to be set by the courts based on a lump sum or on the time and work spent by the court. These fees can differ heavily between the Cantons and are difficult to predict. It must, however, be admitted that they are in general rather high compared to international standards. 

But this only applies to sole enforceability declaration procedures. If enforceability is sought to be declared in the course of the enforcement itself, it falls under the general costs of such proceedings which are dependent on the amount in dispute.

In case of non-EU judgments, the costs for a declaration of enforceability depend on the amount in dispute and also vary from Canton to Canton. They are based on the normal court fee tariffs but are generally lowered considerably as the question to decide is less extensive than in normal cases.

Also here, if enforceability is sought to be declared as a preliminary question in the enforcement itself, this question is covered by the general costs of such proceedings. They also depend on the amount in dispute.

In this respect, it can be referred to the answer to question 3. above.

In this respect, in can be referred to the answer to question 4. above.

For the recognition or declaration of enforceability itself there is no specific statutory time limit. 

However, the general statute of limitation of 10 years for claims based on a judgment as set forth by Art. 137 para. 2 of the Swiss Code of Obligations (“CO”) also applies to foreign judgements. Thus, if enforcement or recognition is sought after more than ten years since the judgment came into binding effect, the debtor may bring forward such objection (however only) in the course of the enforcement proceedings.

Yes, the costs for the specific declaration of recognition and enforceability proceedings are to be borne by the underlying party. If this is the same party as the losing party under the judgment, such costs can be added to the judgment and be enforced together in case of a monetary claim or otherwise enforced separately.

With regard to the applicable enforcement steps, it must be differentiated between two kinds of enforcement types, in particular, as to whether monetary or non-monetary claims are being enforced.

1. Monetary claims are subject to debt prosecution measures and proceedings as per the Swiss Law on Debt Prosecution and Bankruptcy (“SchKG”); i.e. the creditor must file a debt prosecution request with the competent authorities followed by several particular steps as set out in the SchKG.
2. Other claims (e.g. handing out of an object, providing a declaration of will, etc.) are subject to the enforcement rules as per the Swiss Civil Procedure Code (“ZPO”), in particular Art. 335 ff. ZPO; i.e. there must be a request with the competent court to render a decision on possible enforcement measures as set out in the ZPO, such as e.g. penal threats (incl. fines) in case of non-compliance, or judicial execution etc.
   

The declaration of enforceability of a foreign judgment – if not requested on its own – must and may at least be requested as a preliminary decision within the appropriate enforcement measure or proceeding.

As set out in the answer to question 11. above, debt prosecution proceedings are one particular measure of enforcement of a judgment, namely for monetary claims. The initiation of such debt prosecution proceedings may result in an insolvency or bankruptcy process for the debtor.

The process for having a foreign arbitration award recognized or declared enforceable is subject to a bilateral or multilateral treaty applicable to Switzerland. Pursuant to Art. 194 PILA, any other foreign arbitral awards will be subject to the conditions as set out the New York Convention (“NYC” or “NYÜ” in German). 

Such conditions are set out in Art. II to V of the NYC:

In general, an arbitral award must have been rendered based on a written arbitration agreement as further detailed in Art. II of the NYC. Provided this is fulfilled, only the grounds for refusal as set forth in Art. IV and V of the NYC may be scrutinized by the enforcing country. Art. IV stipulates certain formal conditions, whereas Art. V holds certain further conditions based on due process (e.g. fault in service), major procedural issues (e.g. fault in constitution of the arbitral tribunal, ultra petitia, lack of arbitrability etc.) or a breach of ordre public. All such grounds for refusal must be evidenced by the party that relies upon them.

The particular steps and processes to obtain a declaration of recognition or of enforceability of such foreign arbitral award and/or to enforce such award (including a preliminary decision on enforceability) are basically the same as set out above for other foreign judgments.