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( Source of the document: ICC Digital Library )
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Explanatory note: Switzerland is a federal State comprising 26 cantons. 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 Act of 18 Dec. 1987 (PILA) 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:
Note: Switzerland's initial reciprocity reservation was revoked by federal decree of 17 Dec. 1992.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 PILA, the recognition and enforcement of foreign awards are governed by the New York Convention.
(b) commercial relationships?
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?
Note: Art. 192(2) PILA 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) PILA. Such a waiver of setting aside proceedings is admissible 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 (NYC) 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 Act of 18 Dec. 1987 (PILA)
(Source: AS 1988 1776, SR 291.)
(iii) Federal Debt Enforcement and Bankruptcy Act of 11 Apr. 1889, for enforcement of awards for sums of money (DEBA)
(Source: AS 11 529, SR 281.1.)
(iv) Federal Code of Civil Procedure of 19 Dec. 2008 (CCP)
(Source: AS 2010 1739, SR 272.)
(v) judge-made law
C. Limitation periods (time limits)
(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 DEBA 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?
N/A (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: BGE/ATF 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 DEBA. Awards for non-monetary relief are enforced in accordance with the provisions of the CCP. Depending on this distinction, different authorities/courts will have jurisdiction. As a consequence, an award containing monetary as well as non-monetary relief must be enforced in two separate proceedings.
Enforcement of awards for a sum of money under the DEBA:
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 ten days after service, the applicant must seek a court order from the competent judge (Rechtsöffnungsrichter/juge de la mainlevée), within one year after service of the summons to pay, in order to set aside the opposition in summary proceedings. It is only at that stage that the judge will examine the requirements for recognition and enforcement set forth in the NYC. 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 be continued without a judicial review irrespective of whether or not the conditions for recognition and enforcement under the NYC are met.
Enforcement of non-monetary awards:
Awards granting non-monetary relief (e.g. declaratory awards, awards for specific performance or restitution of a chattel, etc.) are enforced pursuant to Arts. 335-346 CCP. The creditor may directly initiate enforcement proceedings by submitting a request for enforcement to the competent enforcement court, without needing to initiate a prior and separate procedure for obtaining a declaration of enforceability of the award. The issue of exequatur will be examined as a preliminary question and the matter will be decided in summary proceedings, typically by a single presiding judge. The competent court for such requests is the court at the seat of the respondent, the place where the respective measure needs to be taken, or the place where the award has been rendered.
Proceedings limited to a declaration on recognition and enforceability:
Subject to having a sufficient legal interest worthy of protection, a party may elect to seek a court declaration on recognition and enforceability of the foreign award in separate exequatur proceedings. Pursuant to Art. 29 PILA (which is applicable to foreign awards by analogy), an application for recognition or enforcement is to be filed with the competent authority of the canton 'where the foreign decision is relied upon'. The matter will be decided in summary proceedings, typically by a single presiding judge. Such proceedings are, by analogy, also governed by the Arts. 335-346 CCP.
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.)?
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 DEBA. 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. DEBA.
(Source: DEBA, Arts. 46-52.)
Enforcement of non-monetary awards; proceedings limited to a declaration on recognition and enforceability:
Pursuant to Art. 29 PILA (which is 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'. Pursuant to Art. 339(1) CCP, the jurisdiction lies with the court at the domicile or registered office of the unsuccessful party, at the place where the measures are to be taken, or at the place where the decision to be enforced was made.
(Source: CCP, Art. 339(1).)
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 and a minimal territorial connection with the specific court called upon.
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: DEBA, Art. 84, regarding the proceedings before the competent judge (Rechtsöffnungsrichter/juge de la mainlevée).)
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
Yes, an objection may be made to the cantonal appellate court pursuant to Arts. 319-327 CCP.
(b) How many levels of appeal or recourse are available against this decision?
The decision is subject to one level of appeal within the cantonal court system (i.e. an objection within the meaning of Art. 319 CCP).
An appeal in civil matters may be made to the Federal Supreme Court against the decision rendered by the cantonal appellate court.
(Sources: CCP, Art. 319 combined with Art. 309; Federal Supreme Court Act of 17 June 2005, AS 2006 1205, SR 173.110 (FSCA), Art. 72(2).)
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: DEBA, Arts. 78, 80 and 88.)
An objection filed by the unsuccessful respondent with the cantonal appellate court against the setting aside decision does not automatically suspend execution. However, the appellate court may stay the proceedings pending its decision on the objection.
(Source: CCP, Art. 325.)
The appeal to the Federal Supreme Court does not automatically stay execution but the court may order a stay.
(Source: FSCA, Art. 103(1) and (3).)
The judgment granting recognition and enforcement of a non-monetary award may be executed immediately after the judgment is issued, e.g. an order for restitution of a specific chattel. If the respondent fails to comply with the judgment, subsequent proceedings may be necessary.
An objection against the decision granting recognition and enforcement does not automatically suspend execution. However, the appellate court may stay the proceedings pending its decision on the objection.
E. Evidence required
(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: NYC, 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) NYC, 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 the application of the formal requirements where the conditions for recognition and enforcement are not disputed by the respondent.
(Sources: Federal Supreme Court decisions of 10 Oct. 2011, 5A.427/2011; 4 Oct. 2012, 4A.124/2010; 8 Dec. 2003, 4P.173/2003; 11 Dec. 1997, SZIER 1998, 610.)
In a recent leading case regarding the translation requirement under Art. IV(2) NYC, the Federal Supreme Court noted that the purpose of the Convention was to facilitate the recognition and enforcement of foreign awards and that therefore the courts should apply a pragmatic, flexible and non-formalistic approach.
(Source: BGE/ATF 128 III 520, c. 5.4.3)
(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.
(a) Is it necessary to provide a translation of the documents supplied?
In principle, yes. While the enforcement application itself is to be made in the official language of the relevant canton (CCP, Art. 129), the CCP does not contain any specific provisions on foreign language documents filed with such application. The enforcement court is generally permitted to request a translation of foreign language documents filed, and if it cannot determine the contents of such documents itself, is required to request such a translation. However, an enforcement court normally refrains from requesting a translation from one of the Swiss national languages into the other (French, German or Italian; see also Q.13(b)) and, arguably, an award rendered in any such language need not be translated into the official language of the court, given the wording of Art. IV(2) NYC.
Note: Certain cantonal courts may not require a translation of the (entire) award if the judge understands the original language of the award. In a recent leading case the Federal Supreme Court observed that nowadays Swiss courts usually have a sufficient command of the English language in order to be able to rule on the various grounds for refusal or recognition and enforcement set out in Art. 5 NYC and thus are, as a rule, not dependant on a translation of an award made in the English language.
(Source: BGE/ATF 128 III 520, c. 5.5)
Nevertheless, a prudent applicant will submit a translation of at least the operative part of the award and expressly offer to submit a full translation if deemed necessary by the judge
(b) If yes, into what language?
Given that it is sufficient according to Art. IV(2) NYC for the translation to be into one of Switzerland's three official languages, an enforcement court normally refrains from requesting a translation from one of the three Swiss national languages into the other (see also Q.13(a)) (cantonal case law: SJZ 2005, 177). However, for practical reasons, it is recommended to submit a translation into the official language of the canton where enforcement is sought (i.e. French, German or Italian, depending on the court involved).
(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 if the respondent has not disputed 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) NYC.
(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. The Federal Supreme Court recently ruled that requiring a full translation of the award in all cases would be a too formalistic application of Art. IV(2) NYC. In the case in question, the court considered a partial translation of the English language award-i.e. the dispositive part and the relevant award section only-as sufficient to fulfil the requirements of Art. IV(2) NYC.
(Source: BGE/ATF 128 III 520, c. 5.5)
F. Stay of enforcement
(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 NYC.
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
As a general rule, a Swiss court has discretion to suspend proceedings if appropriate, in particular if the outcome of such proceedings depends on or is materially influenced by the outcome of other proceedings or if there are any other relevant circumstances which reasonably call for a temporary stay; see CCP, Art. 126. However, in the context of recognition and enforcement under the NYC, the practical relevance of this possibility is limited.
Furthermore, pursuant to Swiss insolvency law, all debt collection proceedings against the respondent (including any application for setting aside an opposition against the 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 admission in the schedule of claims. If the claim is rejected, the creditor must bring a court action for the admission of its claim within 20 days.
(Source: DEBA, Art. 206.)
Similar principles apply where a foreign bankruptcy decree has been recognized in Switzerland pursuant to Arts. 166-175 PILA.
Enforcement is also stayed in case of a so-called 'public inventory' of the estate of a deceased debtor. If the estate is found insolvent, the estate is liquidated through insolvency proceedings.
(Sources: Swiss Civil Code, Arts. 586 and 597; AS 24 233; SR 210.)
(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 on the basis of Art. VI NYC.
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?
Summary proceedings before the court of first instance as well as the proceedings before the cantonal appellate court relating to an objection filed against the enforcement decision may be conducted in writing only. The appeal proceedings before the Federal Supreme Court are, as a rule, conducted in writing only, but the presiding judge may call for a hearing.
(Sources: CCP, Art. 256(1) regarding summary proceedings; CCP, Art. 327(2) regarding objection proceedings; FSCA, Art. 57 regarding proceedings before the Federal Supreme Court.)
Where hearings are held, court hearings and the rendering of judgments are, as a rule, open to the public.
(Sources: CCP, Art. 54 regarding proceedings before cantonal courts; FSCA, Art. 59(1) regarding proceedings before the Federal Supreme Court.)
According to Art. 54(2) CCP, it depends on the cantonal law whether the deliberations may also be public. The Federal Supreme Court will hold oral deliberations if so requested by one of the judges or in the case of a majority decision; they are, as a rule, public.
(Source: FSCA, Arts. 58 and 59(1).)
However, a party may request that hearings be held in camera if preponderant interests so require.
(Sources: CCP, Art. 54(3) regarding proceedings before cantonal courts; FSCA, Art. 59(2) regarding proceedings before the Federal Supreme Court.)
The Federal Supreme Court has stated in an obiter dictum that the particular importance of confidentiality in international arbitration justifies that any subsequent court hearings also be held in camera.
(Source: Federal Supreme Court, 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, oral judgments are pronounced in public. Parties may apply to the court for an order that the judgment be deliberated and rendered in camera, based on prevailing confidentiality interests.
In recognition and enforcement proceedings, judgments are generally rendered in writing only. Third parties are entitled to consult the written decision at the court office during a period of 30 days after the decision was 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: CCP, Art. 54(1) regarding decisions by cantonal courts; FSCA, Art. 59(1) and (3) regarding decisions of the Federal Supreme Court.)
In a decision on an application to set aside an arbitral award, the Federal Supreme Court held that such consultation can be refused on grounds of confidentiality only in exceptional circumstances.
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 Supreme Court are accessible on-line (www.bger.ch) but, as a rule, are anonymized.
(Source: FSCA, Art. 27(2) regarding proceedings before the Federal Supreme Court.)
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 that 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'. The prevailing view is that an interim award in which a foreign arbitral tribunal confirms its jurisdiction is capable of recognition in Switzerland (although, strictly speaking, not enforceable).
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. Art. 343 CCP provides the enforcement court with a wide range of means to compel a debtor to comply with an order for specific performance, such as: issuing a threat of criminal penalty; imposing a disciplinary fine not exceeding CHF 1,000 for each day of non-compliance; ordering a compulsory measure such as taking away a moveable item or vacating immoveable property; or ordering performance by a third party. In addition, pursuant Art. 345 CCP, the prevailing party may seek damages if the unsuccessful party does not comply with the orders of the enforcement court or the money equivalent of the performance due.
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 seek 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: NYC, Art. V(c).)
Similarly, if the award contains decisions 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 Supreme Court, 8 Dec. 2003, 4P.173/2003.)
Some authors opine that recognition and enforcement may be granted by Swiss courts if, under the arbitration law of the country in which the award was made, the setting aside was manifestly untenable and arbitrary.
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.)?
Micha Bühler, Philipp Habegger