Under the Lugano Convention, a foreign judgment (from a Convention member state) is declared enforceable if the formal requirements of article 53 are met (article 41 of the Lugano Convention). The party seeking the declaration of enforceability therefore needs to produce the following documents:
- a judgment (given by a court of a member state and falling within the scope of application of the Lugano Convention), to be provided in original or in an authentic copy (article 53 of the Lugano Convention); and
- the standard form of Annex V satisfying the requirements of article 54 of the Lugano Convention or other documents proving the enforceability of the judgment in the state of origin. In this context, it should be noted that the judgment need not be final in the country of origin (see question 6); it is sufficient that the judgment is enforceable under the laws of the country of origin. Where the enforceability is subject to a security to be provided by the creditor, evidence needs to be provided that such a condition has been met.
In contrast to the old Lugano Convention (in force in Switzerland until 31 December 2010) (see question 1), there is no need to provide evidence that the judgment was served on the defendant (article 47(1) of the Lugano Convention 1988).
It may be necessary to provide additional documents if the judgment was given in default of appearance of the defendant. In such a case, it must be shown that the defendant was duly served with the documents that instituted the proceedings or with an equivalent document showing that it was enabled to arrange a defence (article 34(2) of the Lugano Convention) (see also question 16).
The court can require a translation of the relevant documents in the official language of the place where the enforcement proceedings will take place (ie, French, German or Italian). Such translations need to be certified by a person qualified to do so in one of the member states of the Lugano Convention (article 55(2) of the Lugano Convention).
In the first stage of the enforcement proceedings, the foreign judgment is declared enforceable without any review under articles 34 and 35 of the Lugano Convention. Even a judgment violating Swiss public policy could therefore be declared enforceable. At this stage of the proceedings, the party against which enforcement is sought is not entitled to file any submission on the enforcement application (article 41 of the Lugano Convention).
In the second stage of the enforcement proceedings (the appellate proceedings) the defendant may, however, raise one or more of the very limited grounds specified in articles 34 and 35 of the Lugano Convention (see question 9). In particular, it may claim that recognition and enforcement would be manifestly contrary to Swiss public policy (see question 19), that it was unable to arrange for a defence (see question 16), that enforcing the judgment would be irreconcilable with an earlier judgment between the same parties in Switzerland (the state where enforcement is sought) or with an earlier judgment given in another member state (see question 20), or that the judgment was given in violation of an exclusive jurisdiction under the Lugano Convention (article 35 of the Lugano Convention).
Additional arguments may be raised by the defendant where enforcement is sought for a judgment that is not yet final (article 46 of the Lugano Convention). In this context, article 46(2) of the Lugano Convention provides for special rules as to judgments that were given in Ireland or the United Kingdom. In such a case, any form of appeal available in the state of origin is treated as an ‘ordinary’ appeal for the purposes of this article. Accordingly, the Swiss proceedings may be stayed if the deadline for filing an appeal in Ireland or the United Kingdom has not yet expired or if such an appeal has been lodged (without regard to the nature of such an appeal). This particularity often requires special confirmation as to whether additional appeals might be available in Ireland or the United Kingdom against the judgment.
In general, there are only a few cases where arguments under articles 34 and 35 of the Lugano Convention were successfully raised.
Outside the scope of the Lugano Convention, a judgment can be recognised under the PILA if the following (cumulative) conditions are met:
- the foreign court had jurisdiction under the PILA rules (see questions 14 and 15);
- the foreign judgment is final (ie, no ordinary appeal can be filed against the foreign judgment) (see question 6);
- the foreign judgment is not obviously irreconcilable with Swiss public order (see question 19);
- the defendant was properly served or has accepted the jurisdiction of the foreign court (see question 16);
- the procedure leading to the judgment did not violate basic principles of Swiss law - in particular, the defendant was able to exercise its right to be heard; and
- the dispute has not first been pending in Switzerland or has not first been decided by a Swiss court or by a court in a third country whose judgment could be recognised in Switzerland (see question 20).
Apart from these limited grounds for refusing enforcement of a foreign judgment, there are no further grounds for review (articles 25 and 27 of the PILA).
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