SWITZERLAND Law and Practice Contributed by: Peter Ch Hsu, Daniel Flühmann and Tiffany Ender, Bär & Karrer
is enforceable in any other contracting state, where the creditor requests a declaration of enforceability. The procedure to gain a declaration of enforceability could be described as follows: the creditor must pro- duce a copy of the judgment that satisfies the con- ditions necessary to establish its authenticity (Article 41 in conjunction with Article 53 Lugano Convention). At this stage, the debtor does not participate in the proceeding and therefore cannot raise any objections and the decision is declared enforceable without delay (Article 41 Lugano Convention). However, both parties may appeal against this decision (Article 43 paragraph 1 Lugano Convention). In this second proceeding, any potential objections of the debtor (eg, if the recognition of the judgment is manifestly contrary to public policy) are examined (Article 45 paragraph 1 in conjunction with Article 34 Lugano Convention). However, the foreign judgment may not be reviewed as to its substance (Article 45 paragraph 2 Lugano Convention). Moreover, in princi- ple, the jurisdiction of the foreign court is not reviewed, with the exception of insurance matters (Article 35 Lugano Convention). Therefore, a review of the juris- diction takes place for insurance contracts, but not for reinsurance contracts. The actual enforcement of the judgment itself is not subject to the Lugano Conven- tion but rather subject to the law of the state enforcing the judgment – ie, with regard to Switzerland, pursu- If no international or bilateral treaty applies, a foreign judgment is only enforceable in Switzerland if it has been recognised pursuant to Article 25 et seq PILA. A foreign judgment will be recognised if: • the courts or authorities of the country where the decision was rendered had jurisdiction from a Swiss law perspective; • the judgment is final and absolute; and • there are no grounds for refusal (Article 25 PILA). Upon the request of the creditor, the recognised judg- ment is declared enforceable (Articles 28 and 29 PILA). The actual enforcement is governed by the DEBA or the CPC. ant to the DEBA or the CPC. Enforcement without treaties
Only in the event that neither international treaties nor the PILA provide otherwise, the CPC applies to the recognition, declaration of enforceability and enforce- ment of foreign judgments as so-called lex fori (Article 335 paragraph 3 CPC). 9.5 Enforcement of Arbitration Clauses In Switzerland, in principle, any monetary claim can be submitted to arbitration proceedings in an inter- national context (Article 177 paragraph 1 PILA). The admissibility to arbitration in a domestic context requires an arbitrable claim (Article 354 CPC). Con- sequently, arbitration clauses in insurance and rein- surance agreements are generally enforceable, if the arbitration clause is in writing or in any other form allowing it to be evidenced by text (Articles 7 and 178 paragraph 1 PILA; Articles 61 and 358 CPC). 9.6 Enforcement of Awards Regarding the enforcement of foreign arbitral awards, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC), to which Switzerland is a party, applies. The NYC applies irrespective of whether the award is rendered in another contracting state or not (Article 194 PILA). Foreign arbitral awards have to be recognised in prin- ciple (Article III NYC). However, the NYC also provides grounds for objections to the enforcement (Article V NYC). Grounds pursuant to Article V paragraph 2 NYC must even be observed ex officio (ie, they do not have to be put forward by the other party). The requesting party must submit the duly authenti- cated signature of the award and the signature of the arbitration agreement together with the application for recognition or enforcement (Article IV paragraph 1 NYC). Moreover, if the arbitral award is not written in an official language of Switzerland, a translation must be enclosed (Article IV paragraph 2 NYC). According to the Swiss Federal Supreme Court, awards in Eng- lish do not have to be fully translated; a translation of the holdings of the court is sufficient. The procedure for the enforcement of the foreign arbitral award is governed by domestic law – ie, in Switzerland by the CPC or the DEBA (Article III NYC).
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