LIECHTENSTEIN Law and Practice Contributed by: Moritz Blasy, Nicolai Binkert, Simon Ott and Kathrin Binder, Schurti Partners Attorneys at Law Ltd
If no objection is filed, the payment order becomes final and binding and can then be enforced like a final court judgment. On the other hand, if an objection is filed, the applicant can make an application for the setting aside of the objection (so-called Rechtsöff - nung ) with the District Court. Such application must be based either on an acknowledgement of debt by the defendant or a public deed evidencing the appli - cant’s claim against the defendant. This is where the (non-enforceable) foreign judgment comes into play – a foreign judgment, even if it is not enforceable in Liechtenstein, is, in principle, considered a public deed and can, therefore, serve as a basis for an appli - cation to lift an objection against a payment order. If the application for the lifting of the objection is granted, the defendant must either file a constitu - tional complaint against the order lifting the objection with the Liechtenstein Constitutional Court within four weeks of service or file a claim against the applicant with the District Court requesting a declaratory judg - ment to the effect that the applicant’s alleged claim does not exist (so-called Aberkennungsklage ) within 14 days of service in order to avoid that the order lifting the objection becomes final and binding and, thus, enforceable like a court judgment. The proceed - ings initiated by such claim are ordinary civil proceed - ings and the court will, therefore, fully reassess the claim on the merits without being bound to the (non- enforceable) foreign judgment which served as a basis for the application to lift the objection against the pay - ment order. However, the roles of the creditor and the debtor are interchanged in that the debtor is now the claimant and the creditor is now the defendant. This has the advantage for the creditor that as defend - ant, they cannot be ordered to post security for costs. Instead, the debtor as claimant can be ordered to do so. However, the burden of proof remains the same and is not affected by the interchanged roles of the parties. Unlike an order granting an application for the lifting of an objection against a payment order, an order dis - missing such application can be appealed with the Liechtenstein Court of Appeal within 14 days of ser - vice. If an application for the lifting of an objection against a payment order is conclusively dismissed, the creditor has no choice but to initiate new ordinary
civil proceedings in Liechtenstein in order to enforce their claim against the debtor, and the Liechtenstein courts will then fully reassess the claim on the merits without being bound to the (non-enforceable) foreign judgment that served as a basis for the application to lift the objection against the payment order. Thus, the initiation of summary proceedings may make sense if a creditor of a non-enforceable foreign judgment seeks to avoid being ordered to post secu - rity for costs, which can be quite substantial depend - ing on the amount in dispute, or if it is expected that the debtor will be unwilling or unable to mount an extensive defence in Liechtenstein. On the other hand, the initiation of summary proceedings can consider - ably delay matters from a creditor’s perspective as they cannot avoid a full re-litigation on the merits if persistently defended by the debtor. 3.2 Variations in Approach to Enforcement of Foreign Judgments Liechtenstein has entered into bilateral treaties regard - ing the mutual acknowledgement and enforcement of foreign judgments with the Republic of Austria and the Swiss Confederation only. In addition, Liechtenstein is a party to the Hague Convention on Child Support. Therefore, judgments of foreign courts other than Austria and Switzerland, and other than child support judgments, are not directly enforceable in Liechten - stein. 3.3 Categories of Foreign Judgments Not Enforced The bilateral treaties concluded with the Republic of Austria and the Swiss Confederation only apply to judgments in civil matters. Also, both treaties exclude certain subject matters from their ambit, such as bank - ruptcy matters, and certain types of decisions, such as decisions on civil law claims entered in criminal proceedings, interim injunctions or regulatory fines. 3.4 Process of Enforcing Foreign Judgments To the extent a foreign judgment is enforceable in Liechtenstein, because one of the aforementioned treaties applies and the conditions set forth therein are fulfilled, the procedure to enforce the foreign judg - ment is similar to the procedure to enforce a domestic judgment. In particular, a creditor can apply directly
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