SWITZERLAND Law and Practice Contributed by: Yves Klein, Monfrini Bitton Klein
• judgments issued by foreign courts that were not competent under the PILA or an international treaty (the LC); • judgments that are not in force (the LC) or are not final (the PILA); • ex parte judgments; • judgments by default, if a party establishes that they did not receive proper notice under either the law of their domicile or that of their habitual resi - dence, unless that party proceeded on the merits without reservation; • judgments by which recognition would be mani - festly incompatible with Swiss public policy or if a party establishes that the decision was rendered in violation of the fundamental principles of Swiss procedural law, including the fact that the party concerned was denied the right to be heard; and • if a dispute between the same parties and with respect to the same subject matter as initiated in Switzerland first or that was already decided there, or that such dispute was previously decided in a third state, provided the latter decision fulfils the requirements for recognition in Switzerland. 3.4 Process of Enforcing Foreign Judgments The process of enforcing foreign judgments differs, depending on whether the judgment is enforced under the LC or the general PILA rules, and on whether it is a money or non-money judgment. Enforcing Foreign Judgments Under the LC Under the LC, a declaration of enforceability of a mon - ey judgment under Article 41 of the LC may be issued at three stages: • if the creditor requests an attachment, ex parte, by the court issuing the attachment order, in a sepa - rate judgment (see 2.2 Enforcement of Domestic Judgments under “Attachment proceedings”); • if the creditor requests an order to pay to be issued against the debtor, by the court setting aside the debtor’s objection to the order to pay (see 2.2 Enforcement of Domestic Judgments under “Set - ting aside of the objection to the order to pay”); and • upon a request for an independent recognition, ex parte, if the creditor shows legitimate interest for such a declaratory judgment.
Under the LC, a declaration of enforceability of a non- money judgment under Article 41 of the LC may be issued at two stages: • by the court enforcing the foreign decision (see 2.2 Enforcement of Domestic Judgments under “Enforcement of Non-money Judgments”), in an ex parte judgment parallel to the enforcement pro - ceedings; and • upon a request for an independent recognition, ex parte, if the creditor shows legitimate interest for such a declaratory judgment. The party applying for the declaration of enforceability must provide a certified copy of the judgment (Article 53, LC) and a declaration of enforceability in accord - ance with the Annex V form to the LC. A certified translation of the documents may be requested by the enforcement judge (Article 55, LC) but it is usually not requested if the decision is in a Swiss national language (German, French or Italian) or in English. The LC declaration of enforceability is issued ex parte, except when in the context of the setting aside of an objection to an order to pay. The declaration of enforceability is served on the succumbing party, who has 30 days to appeal. The grounds for refusal under Articles 34 and 35 of the LC are thus only examined by the cantonal court of appeal and then the Federal Court. Enforcing Foreign Judgments Under the Private International Law Act Under the PILA, the proceedings are less expedited than under the LC. Under the PILA, a declaration of enforceability of a money judgment may be issued at two stages: • if the creditor requests an order to pay to be issued against the debtor, by the court setting aside the debtor’s objection to the order to pay (see 2.2 Enforcement of Domestic Judgments under “Set - ting aside of the objection to the order to pay”); and • upon a request for an independent recognition, if the creditor shows legitimate interest for such a declaratory judgment.
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