SWITZERLAND Trends and Developments Contributed by: Yves Klein, Monfrini Bitton Klein
ognition of the foreign decision and execution against particular assets under Swiss debt-enforcement law. The Lugano Convention remains particularly impor - tant for judgments circulating between Switzerland and the European Union and the other Convention states. In practice, the main advantage of the enforce - ment and recognition of a foreign judgment under the Lugano Convention rather than under other treaties or the Swiss Private International Law Act is that enforcement may begin as soon as the foreign judg - ment is enforceable rather than when it has become final, which may entail significant additional delays. The United Kingdom’s departure from the European Union following Brexit, and the absence of its re-entry into the Lugano system, has enhanced the need for pre-judgment enforcement. The 2019 Hague Judgments Convention may gradu - ally improve the international circulation of civil and commercial judgments among participating states. Its growing reach is significant, particularly after its entry into force for the European Union and, subsequently, the United Kingdom. Switzerland’s position should continue to be monitored. Even a wider recognition convention, however, will not solve the practical prob - lems addressed in this article. A judgment that circu - lates easily may still be worthless if the assets have disappeared or were never identified. Recognition analysis should therefore take place at the beginning, not the end, of the dispute. Counsel should identify the jurisdictions in which judgment is likely to be enforced, test the proposed forum against the recognition rules of those jurisdictions and con - sider whether parallel or protective proceedings are needed. Civil, criminal and insolvency proceedings increasingly converge Cross-border recovery rarely follows a single proce - dural track. The same facts may support civil claims, criminal complaints, insolvency measures and regula - tory investigations. These routes are not interchange - able, and each must be used for its proper purpose. Nevertheless, they increasingly interact.
In Switzerland, criminal proceedings may identify bank accounts, transaction records and assets that are not readily accessible through civil procedure. Prosecu - tors may order seizures where the statutory conditions are met. Victims may participate as private claimants if they satisfy the applicable standing requirements. Criminal proceedings should never be used merely to obtain civil discovery, but where genuine criminal conduct is alleged, the criminal and civil dimensions of recovery cannot be analysed in isolation. A co-ordinated strategy therefore requires clear allo - cation of roles. Civil counsel, criminal counsel, insol - vency practitioners, investigators and foreign lawyers should share a common factual map while respecting professional secrecy, procedural restrictions and the distinct objectives of each proceeding. Poor co-ordi - nation can lead to inconsistent allegations, premature disclosure or competing claims to the same asset. Good co-ordination can turn apparently separate pro - ceedings into complementary recovery mechanisms. Switzerland as one component of a global recovery strategy Switzerland is often neither the sole forum nor the final destination of a recovery effort. A typical case may involve proceedings on the merits in one jurisdic - tion, disclosure in another, attachment in Switzerland, insolvency in an offshore centre and enforcement against real estate or operating assets elsewhere. The strategic question is not which jurisdiction offers the strongest remedy in the abstract. It is how the avail - able remedies can be sequenced and combined. A claimant might, for example, use information obtained through English third-party disclosure to identify a receivable payable through Switzerland, seek attachment of that receivable in Switzerland, pursue the merits in arbitration, and later enforce the award under the New York Convention. In another case, a foreign insolvency office-holder may seek recognition in Switzerland while parallel criminal pro - ceedings preserve suspected proceeds. These exam - ples illustrate why Swiss counsel should be involved before the final judgment or award exists.
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