如何确保你的债权在长期内可以得到执行？如果满足某些条件，债权人可以冻结债务人在瑞士所拥有的资产。在实践中，在两种情况下资产可被扣押：第一种情况是债权人对在瑞士没有住所的债务人主张债权；第二种情况是债权人持有可执行的判决或裁决。

毫无疑问，尽管面临着监管压力，瑞士金融业在当今金融界依旧发挥着主导作用。因此，瑞士管辖权有利于希望对持有瑞士银行账户或其他资产的债务人主张债权的债权人。尽管实践表明，被查封的主要是银行账户，但其他资产，如房地产，艺术品或对第三方的索赔同样可以被扣押。

经过申请，债权人可以指示银行所在地或资产所在地的瑞士法院实施单方面冻结以对抗在瑞士拥有资产的债务人，如果提出申请的债权人可以初步证明自己满足以下瑞士联邦债务执行与破产法（“DEBA”）中规定的三个条件：

（一）请求冻结令的债权人有一个成熟无担保债权；

（二）存在冻结请求的法律依据；

（三）债务人的资产位于瑞士。

正如前文所指，冻结请求的最相关因素是：

（一）债务人不在瑞士居住，债权本身与瑞士有足够的联系，或基于由债务人签署的确定的债务（“对非瑞士居民财产的扣押”）；

（二）债权人对债务人有可执行的法院判决或仲裁裁决（“可强制执行的所有权”）。

对非瑞士居民财产的扣押：根据瑞士联邦债务执行与破产法，仅仅是资产位于瑞士不足以建立“与瑞士的充分联系”。“与瑞士的充分联系”的要求，很大程度上取决于瑞士法院以逐案审查的标准审查的具体事实。瑞士法院认为足够的联系应建立在以下情况下：基本合同在瑞士签订或履行，基本合同受瑞士法律管辖，债权人居住在瑞士，债权人的债权与瑞士的商业活动有关联。

可强制执行的所有权：此为冻结请求的第二种因素，债权人需要有可强制执行的所有权。瑞士联邦债务执行与破产法没有区分国内和外国法院判决或仲裁裁决。假设它们均可被强制执行（无论是根据卢加诺公约、瑞士国际私法可强制执行判决或根据纽约公约可强制执行在非瑞士地区仲裁的裁决），所有的判决和裁决均可以作为扣押位于瑞士的资产的因素。

瑞士法院将要求债权人在上文所述的扣押的先决因素下提供初步证据。因为扣押本身被认为是单方面的，它会在许多情况下，以债务人措手不及。由于这一意外效应和扣押的性质，即防止债务人进一步处置将被扣押的资产，扣押很有可能有助于债权人在未来保护并最终主张其债权。

With the recent sentence n° 16601/2017 the Italian Supreme Court (“Corte di Cassazione”) – changing its jurisprudence – opened to the possibility of recognizing in Italy foreign judgments containing punitive damages. In this post we will see what these punitive damages are about, under which conditions they will be recognized and enforced in Italy and, above all, which countermeasures may be implemented to deal with these new risks.

Punitive damages are a monetary compensation – typical of common law legal systems – awarded to an injured party that goes beyond what is necessary to compensate the individual for losses. Normally punitive damages are imposed when the person who caused the damage acted with wilful misconduct and gross negligence.

With punitive damages, other than the compensatory function, the reimbursement of damages assumes also a sanctioning purpose, typical of criminal law, also acting like a deterrent towards other potential lawbreakers.

In the legal systems that provide for punitive damages, the recognition and the quantification of the highest compensation, most of the time, are delegated to the Judge.

In the United States of America punitive damages are a settled principle of common law, but ruled in different ways for each State. However, generally, they are applied when the conduct of person who caused the damage was intentionally directed to cause damage or is put in place without regard to the protection and safety standards. Usually they cannot be awarded for breach of contract, unless it also leads to an independent tort.

Historically, in Italy, punitive damages generally were not recognized, because the sanctioning purpose is not consistent with the civil law principles, anchored to the concept that the reimbursement of the damage is a simple restoration of financial heritage of the damaged person.

Therefore, the recognition of punitive damage established by a foreign judgment was normally denied due to a violation of the public policy (“ordre public”), so those judgments did not have access to the Italian legal system.

The sentence n° 16601/2017 of the 5 July 2017 of the Joint Sessions of Italian Supreme Court (“Sezioni Unite della Corte di Cassazione”) however, changed the cards on the table. In this particular case, the plaintiff applied to the Venice Court of Appeal for the recognition (pursuant to art. 64, law 218/1995) of three judgments of District Court of Appeal of the State of Florida that, accepting a guarantee call submitted by an American retailer of helmets against the Italian company, condemned this latter to pay 1.436.136,87 USD (in addition to legal expenses and interests) for the damages caused by a defect in the helmet used in occasion of the accident.

The Venice Court of Appeal recognized the foreign judgment, considering the abovementioned sum merely as compensation for damages and not as punitive damages. This decision was challenged by the unsuccessful Italian party before the Italian Supreme Court, arguing the violation of the Italian ordre public by the US judgment, on the basis of a consolidated juridical opinion until that day.

The Supreme Court of Cassation confirmed the Venice Court assessment, considering the sum non-punitive and recognized the US judgment in Italy.

The Supreme Court, though, took the opportunity to address the question of the admissibility of punitive damages in Italy, changing the previous orientation (see Cass. 1781/2012).

According to the Court, the concept of civil liability as mere compensation of the damage suffered is to be considered obsolete, given the evolution of this institute through national and European legislation and case-law that introduced civil remedies intended to punish the wrongdoer. As a matter of fact, in our system, it’s possible to find several cases of damages with sanctioning function: in the matter of libel by press (art. 12 L. 47/48), copyright (art. 158 L. 633/41), industrial property (art. 125 D. Lgs. 30/2005), abuse of process (art. 96 comma 3 c.p.c. e art. 26 comma 2 c.p.a.), labour law (art. 18, comma 14), family law (art. 709-ter c.p.c.) and others.

The Supreme Court has, therefore, stated the following principle: “Under Italian law, civil liability is aimed not only to compensate for losses incurred by the injured party, but also to reform the defendant and others from engaging in conduct similar. Therefore, the US legal institute of punitive damages is not incompatible with the Italian legal system”.

The important consequence is that this decision opens the door to possible recognition of foreign sentences that condemn a party to pay a sum higher than the amount sufficient to compensate the suffered injury as a result of the damage.

To that end, however, the Supreme Court has set certain conditions so that foreign sentences have validity, that is to say that the decision is made in foreign law system on a normative basis that:

1. Clearly establish the cases in which it is possible to convict a party to pay punitive damages; and
2. The predictability of it; and
3. Establish quantitative limits.

It has to be clarified that the sentence has not modified the Italian system of civil liability. In other words, the sentence will not allow Italian Judges to establish punitive damages under Italian law.

As for foreign court decisions, it will be now possible to obtain a compensation for punitive damages through the recognition and enforcement of a foreign judgment, as long as they respect the above requirements.

Extending our view beyond the Italian borders, we notice that punitive damages are alien to the legal tradition of most of  European States: there is the possibility, though, that other Courts of continental Europe might follow the decision of the Italian Supreme Court and recognize foreign judgments which grant punitive damages.

How to prevent this new risk

There are several measures which businessmen can adopt to mitigate this new risk: firstly the adoption of contractual clauses that exclude this kind of damages or establish a cap on the amount of the contractual damages which can be claimed, for example by limiting the value of damages at the price of the products or services provided.

Furthermore, it’s very important to have an overall knowledge of the legislation and case law of the markets in which the enterprise operates, even indirectly (for example: with the commercial distribution of products) in order to choose consciously the applicable law to the contract and the dispute resolution methods (for example: establishing the jurisdiction in a country that does not provide for punitive damages).

Finally, this type of liability and risk may also be covered by a product liability insurance.

From 18 January 2017, the new European Regulation 655/2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters will enter into force.

The Regulation foresees in a procedure to seize bank accounts of your debtor in other EU Member States (except when your debtor is domiciled in United Kingdom or Denmark), without that the debtor is notified hereof. The debtor will only notice once the seizure is into force.

Such cross-border seizure can be obtained before the Courts of an EU Member State who would have jurisdiction on the merits of the case under the EU Regulation 1215/2012 (Brussels I bis).

The seizure can be requested before, during or even after the procedure on the merits of the case. The request has to be filed using a standard document.

To grant the request, the Court will have to examine 1) if there is urgency (periculum in mora) and 2) if there is on basis of the provided evidence enough reason to assume the Court will also decide in favor of the creditor in the proceedings concerning the merits of the case (fumus boni iuris). Although these principles are not unknown to national legislation, both will have to await the autonomous interpretation by the European Court of Justice.

The new EU Regulation 655/2014 is however not created to bully any unwilling debtor by filing preservation order after preservation order. The Regulation foresees 2 mechanisms to avoid such practices:

• According to art. 12, the creditor can be required to provide a security when he has not obtained any judgment in favor yet;
• The creditor will also receive a fixed delay in which he has to undertake a proceedings about the merits of the case.

The new European Regulation 665/2014 also foresees a mechanism where a creditor can request information about his debtor’s bank account(s) in a certain Member State. 

Not unimportant, as the creditor needs to indicate the bank account number in his request for a transnational seizure (under Belgian national law, the indication of the name of the Bank would already be sufficient).

Art. 14 of the Regulation now foresees what one could call a bank account disclosure mechanism:

“Request for the obtaining of account information

Where the creditor has obtained in a Member State an enforceable judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim and the creditor has reasons to believe that the debtor holds one or more accounts with a bank in a specific Member State, but knows neither the name and/or address of the bank nor the IBAN, BIC or another bank number allowing the bank to be identified, he may request the court with which the application for the Preservation Order is lodged to request that the information authority of the Member State of enforcement obtain the information necessary to allow the bank or banks and the debtor’s account or accounts to be identified”.

In a few Member States (including Belgium), such disclosure mechanism is completely new.  The Regulation leaves it up to the Member States how they will organize this new disclosure, by giving a few examples:

“Each Member State shall make available in its national law at least one of the following methods of obtaining the information referred to in paragraph 1:

(a) an obligation on all banks in its territory to disclose, upon request by the information authority, whether the debtor holds an account with them;

(b) access for the information authority to the relevant information where that information is held by public authorities or administrations in registers or otherwise;

(c) the possibility for its courts to oblige the debtor to disclose with which bank or banks in its territory he holds one or more accounts where such an obligation is accompanied by an in personam order by the court prohibiting the withdrawal or transfer by him of funds held in his account or accounts up to the amount to be preserved by the Preservation Order; or

(d) any other methods which are effective and efficient for the purposes of obtaining the relevant information, provided that they are not disproportionately costly or time-consuming.

Does this mean any creditor can just run to the Court and ask information?

No, some conditions apply:

• the creditor needs to be in possession of an enforceable judgment;
• there need to be reasons to believe the debtor holds bank accounts in this Member State.

Conclusion: it will be interesting to see how the Member States will apply this new mechanism.  Whether it will be effective, will also depend on the interpretation of ‘reasons to believe the debtor holds bank accounts in this Member State’.  This will probably be the key to the question if this will end the Pyrrhus decisions, where a creditor is accorded his claim but cannot find assets to seize.

The author of this post is David Diris.

如何确保你的债权在长期内可以得到执行？如果满足某些条件，债权人可以冻结债务人在瑞士所拥有的资产。在实践中，在两种情况下资产可被扣押：第一种情况是债权人对在瑞士没有住所的债务人主张债权；第二种情况是债权人持有可执行的判决或裁决。

毫无疑问，尽管面临着监管压力，瑞士金融业在当今金融界依旧发挥着主导作用。因此，瑞士管辖权有利于希望对持有瑞士银行账户或其他资产的债务人主张债权的债权人。尽管实践表明，被查封的主要是银行账户，但其他资产，如房地产，艺术品或对第三方的索赔同样可以被扣押。

经过申请，债权人可以指示银行所在地或资产所在地的瑞士法院实施单方面冻结以对抗在瑞士拥有资产的债务人，如果提出申请的债权人可以初步证明自己满足以下瑞士联邦债务执行与破产法（“DEBA”）中规定的三个条件：

（一）请求冻结令的债权人有一个成熟无担保债权；

（二）存在冻结请求的法律依据；

（三）债务人的资产位于瑞士。

正如前文所指，冻结请求的最相关因素是：

（一）债务人不在瑞士居住，债权本身与瑞士有足够的联系，或基于由债务人签署的确定的债务（“对非瑞士居民财产的扣押”）；

（二）债权人对债务人有可执行的法院判决或仲裁裁决（“可强制执行的所有权”）。

对非瑞士居民财产的扣押：根据瑞士联邦债务执行与破产法，仅仅是资产位于瑞士不足以建立“与瑞士的充分联系”。“与瑞士的充分联系”的要求，很大程度上取决于瑞士法院以逐案审查的标准审查的具体事实。瑞士法院认为足够的联系应建立在以下情况下：基本合同在瑞士签订或履行，基本合同受瑞士法律管辖，债权人居住在瑞士，债权人的债权与瑞士的商业活动有关联。

可强制执行的所有权：此为冻结请求的第二种因素，债权人需要有可强制执行的所有权。瑞士联邦债务执行与破产法没有区分国内和外国法院判决或仲裁裁决。假设它们均可被强制执行（无论是根据卢加诺公约、瑞士国际私法可强制执行判决或根据纽约公约可强制执行在非瑞士地区仲裁的裁决），所有的判决和裁决均可以作为扣押位于瑞士的资产的因素。

瑞士法院将要求债权人在上文所述的扣押的先决因素下提供初步证据。因为扣押本身被认为是单方面的，它会在许多情况下，以债务人措手不及。由于这一意外效应和扣押的性质，即防止债务人进一步处置将被扣押的资产，扣押很有可能有助于债权人在未来保护并最终主张其债权。

With the recent sentence n° 16601/2017 the Italian Supreme Court (“Corte di Cassazione”) – changing its jurisprudence – opened to the possibility of recognizing in Italy foreign judgments containing punitive damages. In this post we will see what these punitive damages are about, under which conditions they will be recognized and enforced in Italy and, above all, which countermeasures may be implemented to deal with these new risks.

Punitive damages are a monetary compensation – typical of common law legal systems – awarded to an injured party that goes beyond what is necessary to compensate the individual for losses. Normally punitive damages are imposed when the person who caused the damage acted with wilful misconduct and gross negligence.

With punitive damages, other than the compensatory function, the reimbursement of damages assumes also a sanctioning purpose, typical of criminal law, also acting like a deterrent towards other potential lawbreakers.

In the legal systems that provide for punitive damages, the recognition and the quantification of the highest compensation, most of the time, are delegated to the Judge.

In the United States of America punitive damages are a settled principle of common law, but ruled in different ways for each State. However, generally, they are applied when the conduct of person who caused the damage was intentionally directed to cause damage or is put in place without regard to the protection and safety standards. Usually they cannot be awarded for breach of contract, unless it also leads to an independent tort.

Historically, in Italy, punitive damages generally were not recognized, because the sanctioning purpose is not consistent with the civil law principles, anchored to the concept that the reimbursement of the damage is a simple restoration of financial heritage of the damaged person.

Therefore, the recognition of punitive damage established by a foreign judgment was normally denied due to a violation of the public policy (“ordre public”), so those judgments did not have access to the Italian legal system.

The sentence n° 16601/2017 of the 5 July 2017 of the Joint Sessions of Italian Supreme Court (“Sezioni Unite della Corte di Cassazione”) however, changed the cards on the table. In this particular case, the plaintiff applied to the Venice Court of Appeal for the recognition (pursuant to art. 64, law 218/1995) of three judgments of District Court of Appeal of the State of Florida that, accepting a guarantee call submitted by an American retailer of helmets against the Italian company, condemned this latter to pay 1.436.136,87 USD (in addition to legal expenses and interests) for the damages caused by a defect in the helmet used in occasion of the accident.

The Venice Court of Appeal recognized the foreign judgment, considering the abovementioned sum merely as compensation for damages and not as punitive damages. This decision was challenged by the unsuccessful Italian party before the Italian Supreme Court, arguing the violation of the Italian ordre public by the US judgment, on the basis of a consolidated juridical opinion until that day.

The Supreme Court of Cassation confirmed the Venice Court assessment, considering the sum non-punitive and recognized the US judgment in Italy.

The Supreme Court, though, took the opportunity to address the question of the admissibility of punitive damages in Italy, changing the previous orientation (see Cass. 1781/2012).

According to the Court, the concept of civil liability as mere compensation of the damage suffered is to be considered obsolete, given the evolution of this institute through national and European legislation and case-law that introduced civil remedies intended to punish the wrongdoer. As a matter of fact, in our system, it’s possible to find several cases of damages with sanctioning function: in the matter of libel by press (art. 12 L. 47/48), copyright (art. 158 L. 633/41), industrial property (art. 125 D. Lgs. 30/2005), abuse of process (art. 96 comma 3 c.p.c. e art. 26 comma 2 c.p.a.), labour law (art. 18, comma 14), family law (art. 709-ter c.p.c.) and others.

The Supreme Court has, therefore, stated the following principle: “Under Italian law, civil liability is aimed not only to compensate for losses incurred by the injured party, but also to reform the defendant and others from engaging in conduct similar. Therefore, the US legal institute of punitive damages is not incompatible with the Italian legal system”.

The important consequence is that this decision opens the door to possible recognition of foreign sentences that condemn a party to pay a sum higher than the amount sufficient to compensate the suffered injury as a result of the damage.

To that end, however, the Supreme Court has set certain conditions so that foreign sentences have validity, that is to say that the decision is made in foreign law system on a normative basis that:

1. Clearly establish the cases in which it is possible to convict a party to pay punitive damages; and
2. The predictability of it; and
3. Establish quantitative limits.

It has to be clarified that the sentence has not modified the Italian system of civil liability. In other words, the sentence will not allow Italian Judges to establish punitive damages under Italian law.

As for foreign court decisions, it will be now possible to obtain a compensation for punitive damages through the recognition and enforcement of a foreign judgment, as long as they respect the above requirements.

Extending our view beyond the Italian borders, we notice that punitive damages are alien to the legal tradition of most of  European States: there is the possibility, though, that other Courts of continental Europe might follow the decision of the Italian Supreme Court and recognize foreign judgments which grant punitive damages.

How to prevent this new risk

There are several measures which businessmen can adopt to mitigate this new risk: firstly the adoption of contractual clauses that exclude this kind of damages or establish a cap on the amount of the contractual damages which can be claimed, for example by limiting the value of damages at the price of the products or services provided.

Furthermore, it’s very important to have an overall knowledge of the legislation and case law of the markets in which the enterprise operates, even indirectly (for example: with the commercial distribution of products) in order to choose consciously the applicable law to the contract and the dispute resolution methods (for example: establishing the jurisdiction in a country that does not provide for punitive damages).

Finally, this type of liability and risk may also be covered by a product liability insurance.

From 18 January 2017, the new European Regulation 655/2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters will enter into force.

The Regulation foresees in a procedure to seize bank accounts of your debtor in other EU Member States (except when your debtor is domiciled in United Kingdom or Denmark), without that the debtor is notified hereof. The debtor will only notice once the seizure is into force.

Such cross-border seizure can be obtained before the Courts of an EU Member State who would have jurisdiction on the merits of the case under the EU Regulation 1215/2012 (Brussels I bis).

The seizure can be requested before, during or even after the procedure on the merits of the case. The request has to be filed using a standard document.

To grant the request, the Court will have to examine 1) if there is urgency (periculum in mora) and 2) if there is on basis of the provided evidence enough reason to assume the Court will also decide in favor of the creditor in the proceedings concerning the merits of the case (fumus boni iuris). Although these principles are not unknown to national legislation, both will have to await the autonomous interpretation by the European Court of Justice.

The new EU Regulation 655/2014 is however not created to bully any unwilling debtor by filing preservation order after preservation order. The Regulation foresees 2 mechanisms to avoid such practices:

• According to art. 12, the creditor can be required to provide a security when he has not obtained any judgment in favor yet;
• The creditor will also receive a fixed delay in which he has to undertake a proceedings about the merits of the case.

The new European Regulation 665/2014 also foresees a mechanism where a creditor can request information about his debtor’s bank account(s) in a certain Member State. 

Not unimportant, as the creditor needs to indicate the bank account number in his request for a transnational seizure (under Belgian national law, the indication of the name of the Bank would already be sufficient).

Art. 14 of the Regulation now foresees what one could call a bank account disclosure mechanism:

“Request for the obtaining of account information

Where the creditor has obtained in a Member State an enforceable judgment, court settlement or authentic instrument which requires the debtor to pay the creditor’s claim and the creditor has reasons to believe that the debtor holds one or more accounts with a bank in a specific Member State, but knows neither the name and/or address of the bank nor the IBAN, BIC or another bank number allowing the bank to be identified, he may request the court with which the application for the Preservation Order is lodged to request that the information authority of the Member State of enforcement obtain the information necessary to allow the bank or banks and the debtor’s account or accounts to be identified”.

In a few Member States (including Belgium), such disclosure mechanism is completely new.  The Regulation leaves it up to the Member States how they will organize this new disclosure, by giving a few examples:

“Each Member State shall make available in its national law at least one of the following methods of obtaining the information referred to in paragraph 1:

(a) an obligation on all banks in its territory to disclose, upon request by the information authority, whether the debtor holds an account with them;

(b) access for the information authority to the relevant information where that information is held by public authorities or administrations in registers or otherwise;

(c) the possibility for its courts to oblige the debtor to disclose with which bank or banks in its territory he holds one or more accounts where such an obligation is accompanied by an in personam order by the court prohibiting the withdrawal or transfer by him of funds held in his account or accounts up to the amount to be preserved by the Preservation Order; or

(d) any other methods which are effective and efficient for the purposes of obtaining the relevant information, provided that they are not disproportionately costly or time-consuming.

Does this mean any creditor can just run to the Court and ask information?

No, some conditions apply:

• the creditor needs to be in possession of an enforceable judgment;
• there need to be reasons to believe the debtor holds bank accounts in this Member State.

Conclusion: it will be interesting to see how the Member States will apply this new mechanism.  Whether it will be effective, will also depend on the interpretation of ‘reasons to believe the debtor holds bank accounts in this Member State’.  This will probably be the key to the question if this will end the Pyrrhus decisions, where a creditor is accorded his claim but cannot find assets to seize.

The author of this post is David Diris.