This Country Answer reflects the state of the law as of 18 July 2008. Please refer to the explanations in the chapter entitled Disclaimer and Preliminary Note.

A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Switzerland.

Explanatory note: Switzerland is a federal State comprising 26 cantons. However, the federal State may sign and ratify treaties that bind Switzerland internationally and are directly binding for all federal and cantonal authorities. Switzerland applies a monistic system with regard to international treaties. Consequently, international treaties are, as a rule, directly applicable without the need for domestic implementing legislation. Foreign awards are thus recognized and enforced under the New York Convention qua Switzerland's international treaty obligations (and not on the basis of domestic law implementing the New York Convention; the reference to the New York Convention in Art. 194 of the Swiss Federal Private International Law Statute of 18 Dec. 1987 is of a declaratory nature only).

2. Date of entry into force of the New York Convention

30 August 1965

(Source: AS 1965 795, SR 0.277.12.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity

No.

Note: Switzerland's initial reciprocity reservation was revoked by federal decree of 17 Dec. 1992.

(Source: AS 1993 2434.)

Pursuant to Art. 194 of the Federal Private International Law Statute, the recognition and enforcement of foreign awards are governed by the New York Convention.

(b) commercial relationships

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

No.

Note: However, Art. 192(2) of the Federal Private International Law Statute provides that the New York Convention is applicable by analogy to the recognition and enforcement of international awards rendered by an arbitral tribunal seated in Switzerland if the parties have waived all setting aside proceedings by entering into an exclusion agreement within the meaning of Art. 192(1) of that statute. Such a waiver of setting aside proceedings is admissible, however, only if none of the parties has its domicile, habitual residence or place of business in Switzerland.

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) New York Convention (or, where applicable, any other existing international treaty providing a more favourable legal basis for recognition and enforcement)

(ii) Art. 194 of the Federal Private International Law Statute of 18 Dec. 1987

(Source: AS 1988 1776, SR 291.)

(iii) Federal Debt Enforcement and Bankruptcy Statute of 11 Apr. 1889, for enforcement of awards for sums of money

(Source: AS 11 529, SR 281.1.)

(iv) the cantonal civil procedure rules of the canton where enforcement is sought (Note: Each of the 26 cantons has its own civil procedure rules and rules on judicial organization; draft legislation harmonizing Swiss civil procedure is currently under examination in the Swiss parliament and a unified Code of Civil Procedure replacing the cantonal rules is expected to enter into force in 2011. The organization of the judiciary in each canton will remain, however, a cantonal domain. Which court will be competent to hear an application for recognition and enforcement of foreign awards may therefore still vary from canton to canton although the proceedings before such court will be uniform.)

(v) judge-made law

C. Limitation periods (time limits)

6. (a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

There is no specific limitation period applicable to legal proceedings for recognition and enforcement of foreign awards. Under Swiss law, limitation periods are considered to be a matter of substance rather than procedure. Accordingly, Swiss courts may refuse to enforce a foreign award on the ground that the claim(s) at issue under the award have become time-barred under the substantive law applicable to them (i.e. Swiss or other substantive law applicable on the facts of the case). This would depend on the provisions of the applicable substantive law regarding the tolling of limitation periods.

It should also be noted that an applicant seeking to enforce an award for a sum of money under the Federal Debt Enforcement and Bankruptcy Statute must, if the respondent opposes the summons to pay, commence court proceedings to set aside such opposition within one year following service of the summons to pay, or initiate new debt-collection proceedings (see Q.7 below).

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

Not applicable (see Q.6(a) above).

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

General remark: In Switzerland, foreign awards are, in principle, enforced in the same way as foreign court judgments.

(Source: DFT 101 Ia 521.)

The enforcement procedure depends on the nature of the relief granted in the foreign award or judgment. Where the award is for an amount of money, the award is enforced by debt-collection proceedings under the Federal Debt Enforcement and Bankruptcy Statute, whereas awards for non-monetary relief are enforced in accordance with the provisions of cantonal law. Depending on this distinction, different authorities/courts will have jurisdiction. As a consequence, an award containing both monetary and non-monetary relief must be enforced in two separate proceedings.

Enforcement of awards for a sum of money under the Federal Debt Enforcement and Bankruptcy Statute: The applicant must commence debt-collection proceedings by filing a request for debt collection with the competent local Debt Collection Office. This authority will then issue and serve on the respondent a 'summons to pay' (Zahlungsbefehl/commandement de payer). If the respondent files an opposition against the summons to pay (Rechtsvorschlag/opposition) within 10 days following service, the applicant must, within one year following service of the summons to pay, seek a court order from the competent judge (Rechtsöffnungsrichter/juge de la mainlevée) to set aside the opposition in summary proceedings. Only at that stage will the judge examine the requirements for recognition and enforcement set forth in the New York Convention. If those requirements are met and the opposition is set aside, the applicant can request the Debt Collection Office to continue the debt-collection proceedings. If the respondent does not file an opposition against the summons to pay, the debt-collection proceedings may proceed without judicial review, irrespective of whether the conditions for recognition and enforcement under the New York Convention are met.

Enforcement of non-monetary awards: Awards granting non-monetary relief (e.g. declaratory awards, awards for specific performance or restitution of chattels, etc.) are enforced pursuant to the rules of civil procedure of the canton concerned. Typically, the matter will be decided in summary proceedings by a presiding judge alone.

Proceedings limited to a declaration on recognition and enforceability: A party may elect to seek a court declaration on recognition and enforceability of the foreign award in separate exequatur proceedings. Such proceedings are governed by the rules of civil procedure of the canton concerned. Typically, the matter will be decided in summary proceedings by a presiding judge alone.

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

Enforcement of awards for a sum of money under the Federal Debt Enforcement and Bankruptcy Statute: The ratione loci jurisdiction of the Debt Collection Office and competent judge (Rechtsöffnungsrichter/juge de la mainlevée) is determined in accordance with the provisions of the Federal Debt Enforcement and Bankruptcy Statute. Debt-collection proceedings must be brought at the place of the debtor's domicile or place of incorporation. Alternatively, such proceedings may, inter alia, be commenced at the place where the respondent's assets are frozen pursuant to an attachment order or, if the respondent is domiciled abroad but has a branch in Switzerland, at the place where the branch is situated, to the extent that the claim to be enforced is derived from the operations of that branch. Therefore, if the respondent is neither domiciled in Switzerland nor has a branch in Switzerland, the judgment creditor must first obtain an attachment order against the respondent's assets in Switzerland from the court where those assets are situated, pursuant to Arts. 271 et seq. of the Federal Debt Enforcement and Bankruptcy Statute.

(Source: Federal Debt Enforcement and Bankruptcy Statute, Arts. 46-52.)

Enforcement of non-monetary awards; proceedings limited to a declaration on recognition and enforceability: Pursuant to Art. 29 of the Federal Private International Law Statute (applicable to foreign awards by analogy), an application for recognition or enforcement must be filed with the competent authority of the canton 'where the foreign decision is relied upon'. Under the relevant cantonal civil procedure law, the applicant is generally required to show a sufficient territorial connection between the place of enforcement and the court to which application is made (e.g. place where debtor is domiciled, where chattels to be transferred are located, or where the enforcement measure is to produce its effects).

Where the proceedings are limited to a declaration on recognition and enforceability, the applicant is generally required to show a legitimate interest in obtaining the declaration sought.

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision granting recognition or enforcement is generally obtained through inter partes proceedings.

(Source: Federal Debt Enforcement and Bankruptcy Statute, Art. 84, regarding the proceedings before the competent judge (Rechtsöffnungsrichter / juge de la mainlevée).)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes.

(b) How many levels of appeal or recourse are available against this decision?

Two or three, depending on the canton concerned. The decision is subject to one or two levels of appeal within the cantonal court system (under the unified Code of Civil Procedure there will be only one cantonal level of appeal). The decision rendered at the highest cantonal level is subject to an appeal in civil matters to the Swiss Federal Tribunal.

(Source: Federal Tribunal Statute, Art. 72, AS 2006 1205, SR 173.110.)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

Enforcement of awards for a sum of money: As a general rule, an applicant may obtain execution against assets in Switzerland once it is entitled to request the continuation of the debt enforcement proceedings.

If the respondent does not file an opposition against the summons to pay, the applicant is entitled to request the continuation of the debt enforcement proceedings 20 days after service of the summons to pay. If the respondent files an opposition, the applicant must obtain a decision setting aside the respondent's opposition from the competent judge (Rechtsöffnungsrichter / juge de la mainlevée) in order to be entitled to request the continuation of the debt enforcement proceedings.

(Source: Federal Debt Enforcement and Bankruptcy Statute, Arts. 78, 80 and 88.)

However, depending on the applicable cantonal law, an appeal by the respondent against the setting aside decision may, either ex lege or pursuant to a court order, suspend the debt enforcement proceedings until the appeal decision. In cantons with a second level of appeal, such second appeal usually does not automatically suspend execution. The court of appeal may, however, stay the judgment pending appeal.

An appeal to the Federal Tribunal does not automatically stay execution but the court may order a stay.

(Source: Federal Tribunal Statute, Art. 103(1) and (3).)

Enforcement of non-monetary awards: A judgment granting recognition and enforcement of a non-monetary award may be executed immediately after the judgment has been issued, e.g. an order for restitution of a specific chattel. However, if the respondent fails to comply with such judgment, subsequent proceedings may be necessary. With respect to the effect of an appeal against a decision granting recognition and enforcement, see preceding paragraph.

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

The following evidence must be supplied: (i) the arbitral award and (ii) the arbitration agreement.

(Source: New York Convention, Art. IV(1).)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

It is necessary to supply: (i) the award in its entirety and (ii) the relevant pages of the document containing the arbitration clause (in light of the wording of Art. IV(1) of the New York Convention, it appears sufficient to submit the arbitration clause if the arbitration agreement consists of a clause in a broader contract, unless the relevant scope of the arbitration clause cannot be established without reference to other parts of the contract; however, there is no case law on this issue).

(c) Are originals or duly certified copies required?

The following are required: (i) the duly authenticated original award or a duly certified copy of the original of the award and (ii) the original arbitration agreement or a duly certified copy of the arbitration agreement.

Note: In practice, Swiss courts tend to be liberal in their application of the formal requirements where the conditions for recognition and enforcement are not disputed by the respondent (see Federal Tribunal decisions of 8 Dec. 2003, 4P.173/2003; 11 Dec. 1997, in SZIER 1998, 610; 9 Jan. 1995, in SZIER 1996, 555; regarding cantonal case law, see ASA Bulletin, 1990, 183, 185-186).

(d) How many originals or duly certified copies are required?

The following are required: (i) one original award or one certified copy thereof and (ii) one original arbitration agreement or one certified copy thereof.

(e) Does the authority or court keep the originals that are filed?

In general, the court returns the originals to counsel once the decision on recognition and enforcement has become final.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes, a translation must be provided unless the award and the arbitration agreement are in one of Switzerland's three official languages (French, German and Italian; see also Q.13(b) below).

(Source: New York Convention, Art. IV (2).)

Note: Certain cantonal courts may not require a translation of the (entire) award if the judge understands the original language of the award, especially if this is English. Nevertheless, a prudent applicant will expressly offer to submit a full translation if deemed necessary by the judge.

(b) If yes, into what language?

Given that Art. IV (2) of the New York Convention prevails over contrary cantonal provisions, it is sufficient if the translation is into one of Switzerland's three official languages.

(Source: cantonal case law, SJZ 2005, 177.)

However, for practical reasons, it is advisable to submit a translation into the official language of the canton where enforcement is sought.

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Yes. The translation must be certified by an official or sworn translator or by a Swiss diplomatic or consular agent.

Note: Certain cantonal courts may not require certification, provided the respondent does not dispute the accuracy of the translation. The prevailing view is that the translation need not necessarily be certified in Switzerland and that certification in the country where the award was rendered will satisfy the requirements of Art. IV(2) of the New York Convention.

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

In principle, a full translation of the arbitral award and the arbitration agreement is required. There is no need to provide a translation of the entire contract containing the arbitration clause.

Note: Certain cantonal courts may not require a translation of the (entire) award if the judge understands the original language of the award, or if at least the operative part of the award is duly translated, provided the respondent does not dispute the accuracy of the translation. Nevertheless, a prudent applicant will expressly offer to submit a full and certified translation of the entire award if deemed necessary by the judge.

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes, the court in which enforcement is sought has discretion to stay the proceedings pursuant to Art. VI of the New York Convention.

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

Cantonal civil procedure rules generally provide that the court has discretion to stay proceedings if the outcome of such proceedings depends on or is materially influenced by the outcome of other pending court proceedings, or if there are any other relevant circumstances which reasonably call for a temporary stay. However, in the context of recognition and enforcement under the New York Convention, the practical relevance of this possibility is limited.

Furthermore, pursuant to Swiss insolvency law, all debt-collection proceedings against the respondent (including applications to set aside an opposition against a summons to pay) cease upon the commencement of insolvency proceedings against a respondent domiciled in Switzerland. In this case, the creditor must file its claim with the insolvency administration for inclusion in the schedule of claims. If the claim is rejected, the creditor has 20 days in which to bring a court action for inclusion of its claim.

(Source: Federal Debt Enforcement and Bankruptcy Statute, Art. 206.)

Enforcement is also stayed where there is a 'public inventory' of the estate of a deceased debtor. If the estate is found to be insolvent, the estate is liquidated through insolvency proceedings.

(Source: Swiss Civil Code (AS 24 233, SR 210), Arts. 586 and 597.)

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

No. However, upon application, the court may exercise its discretion to order the provision of security.

G. Confidentiality

15. (a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

No. The documents filed with the court, such as the arbitral award, the arbitration clause and the written submissions, do not become part of the public record.

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

In some cantons, the proceedings before the court of first instance may be conducted in writing only, while in other cantons a hearing is held. Similar cantonal differences exist with respect to appeal proceedings. The appeal proceedings before the Federal Tribunal are, as a rule, conducted in writing only.

Where hearings are held, court hearings and the rendering of judgments are, as a rule, open to the public. Depending on the court, the deliberations may also be public.

(Source: Federal Tribunal Statute, Art. 59(1).)

However, a party may request that hearings be held in camera if preponderant interests so require.

(Source: Federal Tribunal Statute, Art. 59(2).)

In a recent decision, the Federal Tribunal stated in an obiter dictum that the particular importance of confidentiality in international arbitration justifies that subsequent court hearings also be held in camera.

(Source: Federal Tribunal decision of 19 June 2006, 4P.74/2006.)

Where the chosen arbitration rules do not contain a confidentiality provision, the parties may include an express clause to that effect in the arbitration agreement.

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Rendering of judgments: In Switzerland, judgments are generally rendered in public. However, in recognition and enforcement proceedings, judgments are generally not rendered orally, but third parties are entitled to consult the written decision at the court office during a limited period after the decision has been rendered. Such consultation is usually limited to the title of proceedings and the operative part of the judgment and does not include the reasons given by the court for its decision.

(Source: Federal Tribunal Statute, Art. 59(3).)

In a decision concerning an application to set aside an arbitral award, the Federal Tribunal held that only in exceptional circumstances can such consultation be refused on grounds of confidentiality.

(Source: Federal Tribunal decision of 19 June 2006, 4P.74/2006.)

Where cantonal rules provide that judgments are rendered orally, the parties may apply to the court for an order that the judgment be rendered in camera, due to overriding confidentiality concerns.

Publication of judgments: The question of whether and to what extent judgments on recognition and enforcement are published will depend on the court and the canton concerned. In general, only decisions of particular legal or other significance are published. If published, the decisions are made anonymous, i.e. the names of all parties to the arbitration are redacted. All decisions of the Federal Tribunal are accessible online (www.bger.ch) but, as a rule, are only made available in an anonymous form.

(Source: Federal Tribunal Statute, Art. 27(2).)

Parties can request the court to take adequate measures to protect their confidentiality interests (e.g. removal of party or product names, exclusion of certain parts of the decision to be published, etc.).

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Foreign partial awards may be recognized and enforced in Switzerland, provided they relate to the merits of the dispute and are final. It is not possible to obtain recognition or enforcement of procedural orders or orders for interim relief that do not decide on the merits of a dispute, regardless of whether such decisions are entitled 'order' or 'award'.

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

As a general rule, it is possible to obtain recognition and enforcement of all types of non-monetary relief in a foreign award in Switzerland, provided that the award is final. Cantonal procedural rules usually provide the judge with a wide range of means to compel a debtor to comply with an order for specific performance.

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

The applicant is, in principle, free to apply sua sponte for the enforcement of only part of the relief granted in the award. In addition, if a part of the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or if the award contains decisions on matters beyond the scope of the arbitration agreement, and such parts can be severed from the remainder of the award, the court may recognize and enforce only the remainder of the award.

(Source: New York Convention, Art. V(c).)

Similarly, if the award contains decisions which are not capable of recognition and/or enforcement but which can be severed from the award, the remainder of the award can be recognized and enforced.

(Source: cantonal case law, RJN 1996, 60-62.)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

As a rule, it is not possible to obtain recognition and enforcement in Switzerland of a foreign award which has been set aside in its country of origin.

(Source: Federal Tribunal decision of 8 Dec. 2003, 4P.173/2003.)

Some legal commentators have, however, expressed the view that recognition and enforcement may be granted by Swiss judges if the setting aside was manifestly untenable and arbitrary under the arbitration law of the country in which the award was made.

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

No.

Country Rapporteur: Philipp Habegger.

Other contributor: Micha Bühler.