SWITZERLAND Law and Practice Contributed by: Yves Klein, Monfrini Bitton Klein
It should be noted that when a creditor applies for an attachment order, the court incidentally assesses ex parte whether there is probable cause that the foreign judgment can be recognised under the PILA, but does not issue a decision in that regard. Under the PILA, a declaration of enforceability of a non-money judgment 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 the context of the enforcement proceedings; and • upon a request for an independent recognition, if the creditor shows legitimate interest for such a declaratory judgment. The party applying for the declaration of enforceabil - ity must provide a complete and authenticated copy of the foreign judgment, and a confirmation that the judgment is final and binding. In the case of a judg - ment rendered by default, the applicant must provide an authenticated document showing that the default - ing party was duly put on notice. Jurisdiction Under the Private International Law Act In addition to proving that the foreign judgment is final and binding, the other main condition to establish is that the foreign court had jurisdiction under the PILA. Such a condition is met if: • jurisdiction derives from a provision of the PILA or, in the absence of such a provision, if the defendant was domiciled in the state in which the decision was rendered; • in matters involving an economic interest, the par - ties submitted to the jurisdiction of the authority that rendered the decision by means of an agree - ment valid under the PILA; • in matters involving an economic interest, the defendant proceeded on the merits without reser - vation; or • in the case of a counterclaim, the authority that rendered the decision had jurisdiction to hear the main claim and if there was a factual connection between the claim and counterclaim.
In commercial matters, the main PILA provisions on jurisdiction are as follows: • Foreign decisions on rights in rem on immovable property are recognised in Switzerland if they were rendered in the state in which the property is located or if they are recognised in such state (Article 108, PILA). • Foreign decisions on rights in rem in movable prop - erty are recognised in Switzerland (i) if they were rendered in the state of domicile of the defendant, or (ii) if they were rendered in the state in which the property is located, provided the defendant had their habitual residence there (Article 108, PILA). • Foreign decisions regarding intermediated securi - ties are recognised in Switzerland (i) if they were rendered in the state of the defendant’s domicile or habitual residence, or (ii) if they were rendered in the state of the defendant’s establishment and they concern claims related to the operations of this establishment (Article 108d, PILA). • Foreign decisions relating to the infringement of intellectual property rights are recognised in Swit - zerland (i) if the decision was rendered in the state of the defendant’s domicile, or (ii) if the decision was rendered at the place where the act or the result occurred and the defendant was not domi - ciled in Switzerland (Article 111, PILA). • Foreign decisions pertaining to the existence, validity or registration of intellectual property rights shall be recognised only if they were rendered in a state for the territory of which the protection of the intellectual property is sought or if such decisions are recognised there (Article 111, PILA). • Foreign decisions relating to a claim under the law of obligations are recognised in Switzerland (i) if they were rendered in the state of the defendant’s domicile, or (ii) if they were rendered in the state of the defendant’s habitual residence, in so far as the claims relate to an activity carried out in such state. They are also recognised: (a) if the decision relates to a contractual obliga - tion and was rendered in the state of perfor - mance of the characteristic obligation, and the defendant was not domiciled in Switzerland; (b) if the decision relates to a claim under a contract concluded with a consumer and was rendered at the consumer’s domicile or habitual
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