Challenging and Enforcing Arbitration Awards: Switzerland

1. Must an award take any particular form?

Switzerland

There are two types of awards in Switzerland: international (Swiss) awards, which are governed by Chapter 12 of the Swiss Private International Law Act (PILA) and domestic awards, which are governed by Part 3 (articles 353 to 399) of the Swiss Code of Civil Procedure (CCP). Chapter 12 of the PILA regulates international arbitration, defined as arbitral proceedings seated in Switzerland where, at the time of the conclusion of the arbitration agreement, at least one of the parties did not have its domicile or habitual residence in Switzerland. Part 3 of the CCP in turn regulates domestic arbitration proceedings, when all parties have their domicile or habitual residence in Switzerland. This chapter deals with the challenge and enforcement of international arbitration awards according to the PILA.

Following the principle of party autonomy, article 189(1) of the PILA establishes that the arbitral award shall first ‘be rendered in conformity with the rules of procedure and in the form agreed by the parties’. This means that it will be necessary to first review the applicable arbitration rules or, if any, applicable procedural rules as set forth in the arbitral proceedings whether there are any specific requirements as to the form of the award (or both). Unless the parties have agreed otherwise, article 189(2) of the PILA provides that the award ‘shall be in writing, supported by reasons, dated and signed. The signature of the chairman is sufficient’. Though extremely rare in practice, the parties are accordingly free to waive the written-form requirement and can agree that the award be rendered orally. Furthermore, if the presiding arbitrator is in the minority and declines to sign, the award is still valid with the signatures of two other arbitrators.

Although the PILA does not mention any other details that the award must contain, in practice arbitral tribunals seated in Switzerland tend to follow the rules set out in article 384 of the CCP. As such, an award would also usually set out, at a minimum, the composition of the arbitral tribunal, the seat of the arbitration, the designation of the parties and their representatives, the parties’ prayers for relief, the operative part of the award on the merits, and the amount and allocation of the costs and party compensation.

Chapter 12 of the PILA was revised and the modifications entered into force on 1 January 2021. To maintain Switzerland as an attractive, worldwide arbitration forum, the amendments sought to eliminate ambiguities that were present within Chapter 12 of the PILA and to enact into statutory law the case law developed by a number of decisions from the Swiss Federal Supreme Court. In particular, the amendments seek to clarify the scope of the application of the PILA (article 176), the form of the arbitration agreement (article 178), the integration of arbitration agreements in unilateral acts and articles of associations (article 178(4)), the appointment of arbitrators (article 179), the challenge and replacement of arbitrators (articles 180 to 180b), the possibility for the parties to seek provisional and protective measures before the state courts (article 183), the state court support to foreign arbitral tribunals and parties in foreign arbitral proceedings (article 185a), and the correction and revision of arbitral awards (articles 189a and 190a. In addition, the amendment also modified the Swiss Federal Supreme Court Act (SFSCA) by adding an additional subsection – 2bis – to article 77, according to which parties are allowed to submit their briefs in English.

2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?

Switzerland

Article 189a of the PILA, a newly adopted provision in 2021, provides that a request for correction, interpretation or amendment must be submitted before the arbitral tribunal within 30 days of notification of the arbitral award. The request does not stay the deadline for the setting-aside proceedings for the parts that have not been rectified or for the additional award. This new addition codifies the case law by the Swiss Federal Supreme Court that had ruled that the interpretation or correction of an award will have to be contained in a fresh award, which can be challenged as any award under article 190(2) of the PILA. A request under article 189a of the PILA does not stay the deadline for filing an application for setting aside the award.

In addition, a party may ask the Swiss Federal Supreme Court to revise an international award in accordance with article 190a of the PILA (also a newly adopted provision in 2021 that is based on previous case law from the Federal Supreme Court). The revision of an award is only possible in three circumstances:

• when a party after notification of the award discovers significant facts or decisive evidence that it could not submit in the arbitration proceedings despite applying the required due diligence;
• in the event that criminal proceedings have established that the arbitral award was influenced to the detriment of a party by a criminal act; and
• in the event that a ground to challenge an arbitrator is discovered only after the award is rendered and if no other recourse against the award is available.

The party seeking a revision of an award must file its application with the Swiss Federal Supreme Court within 90 days of becoming aware of the ground for the revision and, in any event, within the absolute deadline of 10 years from the date on which the award was notified, except if a criminal offence is the ground for revision, in which case the absolute deadline of 10 years does not apply. When the Swiss Federal Supreme Court grants an application for revision, it annuls the award and remits the matter to the same arbitral tribunal for a new ruling, or to a newly constituted tribunal. The remedy of revision is of extraordinary nature and rarely successful. Since 1992, the Swiss Federal Supreme Court has upheld a petition for revision on only four occasions (in 2006 and 2016 on the basis of newly discovered material evidence, in 2009 on the ground of a procedural fraud, and in 2020 on the ground of the discovery of the lack of independence of an arbitrator).

3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Switzerland

Under the PILA, an international award may be set aside only before the Swiss Federal Supreme Court (see PILA, article 191; SFSCA, article 77). There is no ‘appeal’ as such against an award before a court with full power of review as to the findings of fact and law.

The Swiss Federal Supreme Court has exclusive jurisdiction to hear applications for the setting aside of international awards rendered by arbitral tribunals seated in Switzerland. This exclusive jurisdiction is a key feature under Swiss law: there is only one level of court review and that is before the highest court of Switzerland. Moreover, the Swiss Federal Supreme Court interprets restrictively the grounds to set aside awards, explained below, and therefore will set aside an international award only under very limited circumstances. Statistically, only about 7 per cent of challenged awards have been set aside since 1989 (this number is skewed by the relatively high number of setting-aside applications filed against awards rendered by arbitral tribunals of the Court of Arbitration for Sports, in Lausanne; thus, the percentage applying to typical commercial arbitration awards is lower).

The grounds to set aside final and partial awards, as provided in article 190(2) of the PILA, are as follows:

• improper constitution of the arbitral tribunal;
• incorrect ruling on jurisdiction;
• decision beyond the claims submitted to the arbitral tribunal or failure to decide a claim;
• violation of the right to be heard or of equal treatment of the parties; and
• violation of Swiss public policy.

Article 190(3) of the PILA provides that preliminary awards can also be annulled on the grounds of improper constitution of the arbitral tribunal and incorrect ruling on jurisdiction. This list of grounds to set aside an award is exhaustive.

According to article 77 of the SFSCA, the procedure for setting aside an arbitral award is governed by the provisions of the SFSCA regarding applications for judicial review in civil matters, except for articles 48(3), 90 to 98, 103(2), 105(2), 106(1) and 107(2). The formal and substantive requirements for a setting-aside application provided in the SFSCA must be strictly adhered to, failing which the Swiss Federal Supreme Court will declare the application inadmissible and not examine the application on its merits.

The setting-aside application must be submitted in one of the official languages of Switzerland – French, German, Italian or Romansch. In an effort to make Switzerland a more user-friendly jurisdiction in international arbitration, the newly adopted article 77(2bis) of the SFSCA in 2021 now enables the parties to submit a setting-aside application in English and not only in one of Switzerland’s official languages. Although the Swiss Federal Supreme Court may request a translation of the award, this is in principle not the case when it is drafted in English.

After receipt of the setting-aside application, the Swiss Federal Supreme Court will require the applicant to provide an advance on the court costs within the usual time limit of 20 days. The Court will first verify that the application is admissible and not patently unmeritorious, and then communicate the application to the arbitral tribunal and the opposite party and invite them to file comments. Typically, arbitral tribunals refrain from filing comments other than to affirm that their opinion is stated in the award.

Setting-aside proceedings are usually documents-only procedures, with only one exchange of written submissions (ie, the setting-aside application, the opposing party’s response, and the arbitral tribunal’s statement, if any), though one further exchange of brief ‘observations’ by the parties has become customary. Thereafter, the Swiss Federal Supreme Court usually renders the holding of its decision within four to six months of receipt of the application to set aside the award, with the reasoning of the decision being communicated later.

Another salient feature of Swiss arbitration law is that the parties that have no domicile, habitual residence or place of business in Switzerland may, according to article 192(1) of the PILA, waive in advance their right to challenge the award in its entirety or limit the challenge to one or several of the grounds listed in article 190(2) of the PILA. The waiver must be explicit and must express the clear intention of the parties to waive the action for setting aside the award. The waiver is not valid, however, within the realm of sports arbitration, as confirmed by the Swiss Federal Supreme Court in its Cañas decision of 2007 (SFSC Decision 133 III 235 of 22 March 2007).

4. Is there a time limit for applying for the setting aside of an arbitral award?

Switzerland

Article 190(4) of the PILA, a newly adopted provision, and article 100 of the SFSCA each set a 30-day deadline to file an application for setting aside an arbitral award. The deadline begins to run from the date of receipt of the signed original of the award by the party or its legal representative, whichever is earlier. Article 45(1) in conjunction with article 77(1) of the SFSCA provide that if the time limit ends on a Saturday, Sunday or public holiday, the deadline lapses on the following working day; also, the 30-day time limit is suspended during official court holidays, from the seventh day before Easter until the seventh day after Easter, from 15 July until 15 August and from 18 December to 2 January.

Chapter 12 of the PILA does not deal in detail with the notification of the award. Notification is, therefore, a question primarily determined by means of the parties’ agreement, if any, or by the applicable arbitration rules, or ultimately by the arbitral tribunal. It is common practice to notify the parties of the award by mail, be it registered mail or by courier service, so as to have a record of the date of receipt. On this matter, the Swiss Federal Supreme Court has stated that the valid notification on which the time limit for the filing of a setting-aside application commences has to be assessed in view of the applicable arbitration rules.

For example, in a decision of 26 September 2018, the Swiss Federal Supreme Court confirmed that the 30-day time limit under article 100 of the SFSCA to seek the annulment of an award rendered under the International Chamber of Commerce (ICC) arbitration rules commences with the notification of the signed original arbitral award, in view of article 35(1) of the 2017 ICC arbitration rules, and not with the advance courtesy electronic copy sent by the ICC (SFSC Decision 4A_40/2018 of 26 September 2018). In a decision dated 16 October 2019, the Swiss Federal Supreme Court analysed the notification of an incomplete and unsigned hard copy version of an arbitral award and whether the notification triggered the statutory deadline to file a setting-aside application before the Swiss Federal Supreme Court. The appellant considered that the notification of an incomplete and unsigned award was null and void and that the deadline to file the setting-aside application should not be triggered until a complete, signed arbitral award would be properly served. Nevertheless, the Swiss Federal Supreme Court declared that under the principle of good faith in article 5(3) of the Swiss Federal Constitution, the appellant should have reported the procedural error with no delay and, because it did not do so, it then forfeited its right to a new notification of the arbitral award and, thus, the Court considered the challenge as inadmissible for being filed late (SFSC Decision 4A_264/2019 of 16 October 2019).

5. What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

Switzerland

Final awards (ie, those that resolve all the issues of the case), can be set aside under any of the grounds in article 190(2) of the PILA. Partial awards (ie, awards that resolve part of the claims or prayers for relief in the case) can also be set aside on any of the grounds in article 190(2) of the PILA. In principle, interim awards, which relate to a preliminary question and do not (definitely) rule on a given claim or prayer for relief, can be set aside only on the grounds mentioned in article 190(2), paragraphs (a) and (b) of the PILA (ie, on the ground of improper appointment or constitution of the arbitral tribunal and if the arbitral tribunal wrongly accepted or declined jurisdiction (PILA, article 190(3)).

6. Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Switzerland

For international arbitration awards, the Swiss Federal Supreme Court is the sole jurisdiction to review setting-aside proceedings (PILA, article 191). Although not the topic of this chapter, for domestic arbitration awards, the Swiss Federal Supreme Court is the default jurisdiction to review setting-aside proceedings (CCP, article 389), but the parties may agree to select a cantonal court to review the setting aside of the award (CCP, article 390(1)). The cantonal court then acts as a last instance and its decision cannot be appealed or set aside (CCP, article 390(2)).

7. What documentation is required when applying for the setting aside of an arbitral award?

Switzerland

In addition to the setting-aside brief, several documents are required, namely the award, proof of receipt of the award (for the calculation of the 30-day deadline) and the power of attorney. In addition, other documents should be submitted to the Swiss Federal Supreme Court, such as certain key exhibits, key pleadings or transcripts. There is no need to provide the Swiss Federal Supreme Court with Swiss legal literature or court cases.

One should note that the Swiss Federal Supreme Court will require and receive the entire file from the arbitral tribunal.

8. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

Switzerland

In principle yes, one should provide a translation of the document, namely the award, if it is not in one of the official languages of Switzerland (namely German, French, Italian or Romansch). One exception is English: if the award is in English, there is in principle no need for a translation.

9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Switzerland

Since 1 January 2021, the parties may file their setting-aside application either in an official language of Switzerland (namely German, French, Italian or Romansch) or in English, per the newly adopted article 77(2bis) of the SFSCA.

Although there is no strict rule on the length of submissions, it is generally understood that submissions ought not to exceed 20 pages as it is a legal review. The actual length of each submission may vary on the complexity of the issues at stake. However, as the Swiss Federal Supreme Court has stated, the briefer the application, the better (SFSC Decision 4A_624/2014 of 18 November 2019).

10. What are the different steps of the proceedings?

Switzerland

Upon filing of the setting-aside application, the Swiss Federal Supreme Court will acknowledge receipt and request payment of an advance on the court fees (chiefly based on the amount in dispute, up to a maximum of 100,000 Swiss francs or, in the case of exceptionally complex or high-stakes cases, 200,000 Swiss francs). Upon payment of the court fees by the applicant party, the Swiss Federal Supreme Court sends the setting-aside application to the respondent and invites the respondent to file a response or comments, usually within 30 days (although this deadline is extendable). The Swiss Federal Supreme Court will also invite the arbitral tribunal to file comments and to provide it with a copy of the entire file. Typically, arbitral tribunals refrain from filing comments and limit themselves to simply affirm what has been stated in the award.

On receipt of the response, the Swiss Federal Supreme Court will invite the applicant to file observations on the response within 10 days (this deadline is not extendable). On receipt of the applicant’s observations, the Court invites the respondent to file its own observations under the same conditions. The Court will then hold the case for judgment.

11. May an arbitral award be recognised or enforced pending the setting- aside proceedings in your jurisdiction? Do setting aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting aside proceedings, and what are the different steps of the proceedings?

Switzerland

In principle, under article 190(1) of the PILA, an arbitral award is final from its notification to the parties and a setting-aside application does not lift the finality of the award, with the effect that the filing of the application has no suspensive effect and the award, in principle, may be recognised or enforced pending the setting-aside proceedings.

However, in exceptional cases, the Swiss Federal Supreme Court may grant a suspensive effect and any already ongoing recognition or enforcement proceeding must be stayed, consistent with article V(1)(e) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (the New York Convention). The conditions for obtaining an order granting suspensive effect are strict and limited, and require that a prima facie examination of the case reveals that the application to set aside is very likely well-founded (SFSC Ordinance in 4A_204/2007 of 12 June 2007) as well as a showing of severe irreparable harm.

12. What are the grounds on which an arbitral award may be set aside?

Switzerland

The grounds to set aside final and partial awards, as provided in article 190(2) of the PILA, are as follows:

• improper constitution of the arbitral tribunal;
• incorrect ruling on jurisdiction;
• decision beyond the claims submitted to the arbitral tribunal or failure to decide a claim;
• violation of the right to be heard or of equal treatment of the parties; and
• violation of Swiss public policy.

Article 190(3) of the PILA provides that interim awards can also be annulled on the grounds of improper constitution of the arbitral tribunal and incorrect ruling on jurisdiction. This list of grounds to set aside an award is exhaustive.

13. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

Switzerland

In principle, given its exclusive jurisdiction, no ordinary remedies are available against a decision of the Swiss Federal Supreme Court on a setting-aside application.

However, exceptionally, the decision is subject to the recourse of revision, now instituted under article 190a of the PILA, in the following three circumstances:

• when a party after notification of the award discovers significant facts or decisive evidence that it could not submit in the arbitration proceedings despite applying the required due diligence;
• in the event that criminal proceedings have established that the arbitral award was influenced to the detriment of a party by a criminal act; and
• in the event that a ground to challenge an arbitrator is discovered only after the award is rendered and if no other recourse against the award is available.

A decision of the Swiss Federal Supreme Court may also exceptionally be revised for violation of certain rules of procedure before Swiss Federal Supreme Court (SFSCA, article 121) and in the event the European Court of Human Rights, following an appeal, finds that the decision of the Swiss Federal Supreme Court violates the European Convention on Human Rights or its protocols (SFSCA, article 122).

In addition, the parties may request the Swiss Federal Supreme Court to provide an interpretation or correction of its decision if the decision is incomplete, ambiguous or contradictory, or if it contains errors in computation or clerical or typographical errors (SFSCA, article 129).

14. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them (eg, in recognition or enforcement proceedings)?

Switzerland

When a decision on a claim is precluded by an earlier award or court judgment between the same parties over the same claim in a foreign jurisdiction, the arbitral tribunal must declare the claim inadmissible by reason of the principle of res judicata (and not for lack of jurisdiction). Given that the principle of res judicata is part of Swiss public policy, an arbitral award that disregards the res judicata effect of an earlier decision in a foreign jurisdiction is susceptible to being set aside by the Swiss Federal Supreme Court under article 190(2)(e) of the PILA.

The Swiss Federal Tribunal examines whether there exists a situation of res judicata with unfettered powers of review. It applies a rather narrow view, such that the conclusive and preclusive effects of a foreign court judgment or arbitral award are limited to the contents of its dispositive part or the holdings of the award; the reasons on which the relevant decision is based do not produce any res judicata effect, although they may be taken into consideration to determine the exact meaning, nature and scope of the dispositive part of the award (SFSC Decision 128 III 191 of 3 April 2002).

15. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Switzerland

With regard to international awards rendered in a seat outside Switzerland (ie, foreign arbitral awards), their recognition and enforcement are governed directly by the New York Convention, pursuant to article 194 of the PILA, even if the country of the seat is not a contracting state to the New York Convention. The Convention is directly applicable as Swiss law. Moreover, Switzerland has signed a number of bilateral treaties (in particular with Germany, Sweden, Austria, Belgium, Italy, Liechtenstein, the Czech Republic and Slovakia) that cover arbitral awards.

Switzerland is also a party to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention, or Washington Convention), which entered into force for Switzerland on 14 June 1968. The Protocol on Arbitration Clauses of 24 September 1923 (the Geneva Protocol) and the Convention on the Execution of Foreign Arbitral Awards of 26 September 1927 (the Geneva Convention), of which Switzerland is a party, both ceased to have effect between contracting states of the New York Convention the moment the contracting states became bound by the treaty, as per article VII(2) of the New York Convention.

Switzerland has signed more than 140 bilateral investment treaties (BITs) and other treaties containing investment provisions. To date, only Germany and China have signed more BITs than Switzerland.

The detailed procedures applicable to the enforcement of arbitral awards, including those rendered both in and outside Switzerland, are set forth in federal statutes. Enforcement of monetary claims is governed by articles 38 to 55 of the Federal Act on Debt Collection and Insolvency of 11 April 1889 (DEBA). Enforcement of non-monetary claims is governed by articles 335 to 346 of the CCP.

In view of Swiss case law and doctrine, Switzerland adopts a pro-enforcement bias to the New York Convention in practice. Swiss courts are very reluctant to review an arbitral tribunal’s determination on the merits and have interpreted narrowly the grounds on which enforcement may be denied. Furthermore, the Swiss Federal Supreme Court has recently held that in the event the recognition and enforcement in Switzerland of a foreign arbitral award may be governed by two different international conventions (such as the New York Convention and a bilateral treaty, for example), priority must be given to the one that makes such recognition or enforcement easier (SFSC Decision 4A_95/2021 of 17 June 2021).

To facilitate enforcement in Switzerland, a party may request the competent Swiss court at the arbitral seat (per CCP, Article 356(1)(b), the high civil court of the canton in which the arbitral tribunal had its seat) to certify the enforceability of awards, pursuant to Article 193(2) of the PILA.

16. Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

Switzerland

Yes. The New York Convention entered into force for Switzerland on 30 August 1965. On accession, Switzerland made a reciprocity reservation. However, the reservation was withdrawn on 23 April 1993 when Chapter 12 of the PILA, and article 194 thereof, entered into force.

17. Is there a time limit for applying for the recognition and enforcement of an arbitral award?

Switzerland

The statute of limitation for the recognition and enforcement of an arbitral award is 10 years (the Swiss statute of limitation for contractual claims).

18. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Switzerland

For recognition and enforcement of domestic and foreign arbitral awards granting monetary relief, a request for debt collection must be filed with the local debt collection office located, in general, at the award debtor’s Swiss place of domicile or registered office, pursuant to articles 46 to 55 of the DEBA. If the award debtor objects to making payment, then the creditor can request a competent court at the place of the debt collection proceedings (the competent court within a particular canton is determined by cantonal legislation) to set aside the debtor’s objection in summary proceedings. However, the debtor can still appeal the court’s decision to set aside the objection to a higher cantonal jurisdiction by filing a complaint in accordance with articles 319 to 327a of the CCP.

For recognition and enforcement of domestic and foreign arbitral awards granting non-monetary relief, under article 339(1) of the CCP, the award creditor must file its request with the court located (1) at the domicile or seat of the debtor, (2) where the measures are to be taken, or (3) where the decision to be enforced was rendered.

Though not necessary considering the direct enforceability of arbitral awards, for mere recognition (stand-alone exequatur) of foreign arbitral awards, a request must be filed with the court defined by article 339 of the CCP and the applicable cantonal legislation.

19. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

Switzerland

A Swiss court will have jurisdiction over an application for recognition and enforcement if (1) the debtor is domiciled or has its registered office in Switzerland, (2) the debtor has a branch in Switzerland and the claim to be enforced is derived from the operations of that branch, (3) the debt is secured by a pledge or mortgage and the chattel or the real estate is located in Switzerland, or (4) the foreign debtor has assets located in Switzerland and the creditor has obtained an attachment order against those assets pursuant to articles 271 to 281 of the DEBA.

It is important to note that a recognition and enforcement application can be filed at the same time as an attachment application. This is a very effective measure to limit the debtor’s rights of disposal of the attached assets during the course of the enforcement and recognition proceedings. In such a case, the enforcement and recognition of the foreign arbitral award are assessed on a preliminary basis in the attachment proceedings.

For the purposes of mere recognition proceedings, the applicant need not identify assets in Switzerland.

20. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Switzerland

Recognition proceedings in Switzerland are adversarial.

It is rare in practice for a party to file only for recognition (but not for enforcement) of an award. The practical way to recognise and enforce a foreign award is to seek a certificate of enforceability. Although purely optional, considering the immediate enforceability of international arbitral awards under article 190(1) of the PILA, a certificate of enforceability may be requested from the high civil court of the canton in which the arbitral tribunal had its seat as per article 193 of the PILA (in conjunction with article 356(1)(b) of the CCP).

If the party is seeking enforcement and indirectly the recognition of a domestic or international Swiss award, in practice that party will most probably file an attachment proceeding, which is a separate proceeding used to secure goods located in Switzerland (per DEBA, article 271) from the enforcement proceeding (ie, the delivery of a payment order) proper. The attachment proceeding is ex parte, but the party against whom the attachment proceeding is directed may oppose and appeal the attachment order. If the party against whom the attachment proceeding is directed challenges the attachment order or refuses to pay per the payment order, the party seeking to enforce the arbitration award will have to seek to lift the other party’s opposition (definitive Rechtsöffnung; mainlevée définitive).

21. What documentation is required to obtain recognition?

Switzerland

An application for recognition of a foreign arbitral award, as per article IV of the New York Convention, must be accompanied by the duly authenticated original award or a duly certified copy thereof (article IV(1)(a)), the original of the arbitration agreement or a duly certified copy thereof (article IV(1)(b)), and translations of the award and the arbitration agreement into one of the official languages of Switzerland: German, French or Italian (article IV(2)). The translation can be done by an official or sworn translator or by a diplomatic or consular agent, depending on the canton.

In general, Swiss courts do not take a formalistic approach to these requirements. For example, if the award is rendered in English and the particular court is comfortable with using English, the court might not require a translation into one of the official languages of Switzerland. Furthermore, authentication of the award will not be required if the award debtor does not dispute its authenticity.

22. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

Switzerland

Swiss courts may dispense with the requirement of submitting the award and the arbitration agreement in an official language of Switzerland in accordance with article IV(2) of the New York Convention. Further, according to Swiss legal scholars, the Swiss enforcement court must accept a translation of a foreign award into any of the three official languages (German, French or Italian), even if the translation is not in the official language of the enforcement court.

Rules on authentication and certification vary from canton to canton. Some provide for sworn translators; others authorise public notaries to certify translations as to their correctness; in yet others, the court may appoint a translator to prepare a translation. Swiss consular and diplomatic agents can also certify translations. Consistent with the less formalistic approach of Swiss courts, in general, it is only necessary that the consular agent certify the correctness of the first and last page of the translation of an arbitral award, including the particulars of the parties and the dispositive part of the award.

23. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Switzerland

An application to a Swiss debt collection office to enforce a monetary award must be accompanied by a maximum filing fee of 400 Swiss francs for a claim of more than 1 million Swiss francs. If the debtor files a formal opposition, the applicant must pay a maximum court fee of 2,000 Swiss francs to commence summary court proceedings. Other costs may apply depending on the complexity of the case and the applicable legislation of the canton in which the enforcement is sought. It is also important to note that any claims before a Swiss debt collection office must be formulated in Swiss francs. Thus, any claims in a foreign currency must be converted into Swiss francs at the exchange rate on the day on which the request is submitted (DEBA, article 67(1)(3)).

According to article 16 of the PILA, the judge has the duty to determine the content of any applicable foreign law. However, in summary proceedings, which include attachment proceedings and enforcement proceedings, the party seeking the enforcement of an arbitral award subject to foreign law has to substantiate prima facie the content of the foreign law. In Decision 5A_593/2020 of 17 February 2021 of the Swiss Federal Supreme Court, the application for attachment was rejected because the party seeking the attachment failed to substantiate the content of the foreign law (English law, in casu).

An application should be prepared in the official language of the canton in which enforcement is sought (or one of the official languages of Switzerland, namely German, French, Italian or Romansch). Depending on the specific circumstances of the case, at a minimum, the party will have to attach the award to its application. In principle, one should provide an (unofficial) translation of the award, if is not in one of the official languages of the canton. One exception is English. If the award is in English, there is typically no need for a translation. However, it is good practice to provide an unofficial translation of the operative section of the award and, if necessary, selected sections of the reasoning.

There are no formal limitations on submissions but, as a general rule, applications seeking recognition and enforcement of awards should be short and to the point (approximately 15 to 20 pages).

24. Do courts recognise and enforce partial or interim awards?

Switzerland

Swiss courts recognise and enforce partial awards that decide on one or more prayers for relief or claims and finally resolve a part of the dispute. These awards have res judicata effect.

In contrast, interim or preliminary awards, understood as decisions that clarify a preliminary issue, are not enforced but may be recognised. For example, a preliminary award by a tribunal in Switzerland upholding its jurisdiction has res judicata effect and will bind a court or tribunal later seized with the matter.

The determination of whether a decision constitutes an award depends not on the words used to describe it, but rather on the contents of the decision. Procedural orders and orders of provisional measures are not enforceable as awards; however, costs awards are considered final decisions constituting awards. A settlement embodied in a ‘consent award’ that finally resolves one or more of the claims may also be recognised and enforced as an award.

25. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under article V of the New York Convention?

Switzerland

With respect to foreign awards, the grounds enumerated in article V of the New York Convention are the exclusive grounds on which a Swiss court may refuse recognition and enforcement, according to article 194 of the PILA. Swiss courts interpret these grounds restrictively. Even if one of the grounds is found to have been established, the Swiss courts have discretion to grant enforcement and recognition (SFSC 5A_1046/2019 of 27 May 2020). In the past, enforcement has been denied in a very limited number of cases, evidencing Switzerland’s stance as an arbitration-friendly jurisdiction.

26. What is the effect of a decision recognising an arbitral award in your jurisdiction?

Switzerland

There are three types of decisions recognising an award in Switzerland:

• First, it is possible to request from a competent court (defined by article 339 of the CCP and cantonal legislation) a stand-alone exequatur decision declaring the recognition and enforceability of an award without further proceedings. Such a decision gives the award res judicata effect and makes the award immediately enforceable.
• Second, an award creditor may initiate execution proceedings for monetary or non-monetary relief without requesting a declaration of recognition and enforceability. In this situation, exequatur is decided only as a preliminary question, does not appear in the operative part of the court’s decision and lacks res judicata effect.
• Third, a party may combine its request for exequatur with execution proceedings.

A party may appeal the court’s decision granting exequatur to the higher cantonal court and, if unsuccessful, may appeal to the Swiss Federal Supreme Court. However, the appeal has no automatic suspensive effect on the decision on exequatur or the decision on execution.

A party may appeal the court’s decision to set aside the debtor’s objection in debt enforcement proceedings to the higher cantonal court and, if unsuccessful, to the Swiss Federal Supreme Court.

27. What challenges are available against a decision refusing recognition in your jurisdiction?

Switzerland

If exequatur is denied, a party may appeal to the higher cantonal court and ultimately to the Swiss Federal Supreme Court.

A court’s decision granting the debtor’s objection in debt enforcement proceedings may be appealed to the higher cantonal court and, if unsuccessful, to the Swiss Federal Supreme Court.

28. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

Switzerland

The enforcement court has discretion to adjourn enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration, under article VI of the New York Convention. The award debtor must establish on a prima facie basis that the award is likely to be set aside and that its request is not merely a dilatory tactic. The enforcement court may consider all relevant factors, including the likelihood of success of the annulment proceedings, although the award debtor’s financial stability is not likely to be considered a sufficient reason to stay enforcement.

Recognition proceedings, unlike enforcement proceedings, are not subject to adjournment in Switzerland, consistent with article VI of the New York Convention.

29. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

Switzerland

The enforcement court may, at the request of the party seeking enforcement, and in line with Article VI of the New York Convention, require the award debtor to post suitable security. The practice of courts regarding the ordering of security varies to a large extent from one canton to another. In principle, the security needs to be paid in cash or provided in the form of a bank guarantee issued by a Swiss bank.

30. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

Switzerland

An award that has been fully set aside at the seat of arbitration will, in general, be denied recognition and enforcement in Switzerland, consistent with article V(1)(e) of the New York Convention. Although current Swiss case law does not entirely exclude the possibility that an award that was set aside at the seat of the arbitration might be enforced under extraordinary circumstances, Swiss courts have not been called on to address such circumstances.

If an award has been partly set aside at the seat of the arbitration, and if the portion that is set aside is severable from the portion that has not been set aside, authoritative Swiss scholarly writing indicates that it is possible to obtain recognition and enforcement of the portion that has not been set aside.

If the award is set aside at the seat of the arbitration after a Swiss court has issued a decision recognising or granting enforcement of the award, scholarly writing supports the view that the award debtor may request cancellation of the decision granting enforcement, applying article V(1)(e) of the New York Convention by analogy.

31. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

Switzerland

Service of procedural documents issued during arbitral proceedings, including orders and awards, is to be effected according to the applicable, relevant rules chosen by the parties – be it directly or by reference to specific arbitration rules or decided by the arbitral tribunal.

If the seat of arbitration is in Switzerland and a party in Switzerland refuses to accept delivery of an international award, the arbitral tribunal may request judicial assistance under article 185 of the PILA. The Swiss court would apply articles 136 to 141 of the CCP.

Service of judicial and extrajudicial documents originating outside Switzerland to a Swiss recipient is typically effected in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters of 15 November 1965 (the Hague Service Convention), the Hague Convention on Civil Procedure of 1 March 1954, or specific bilateral treaties. Switzerland is also a party to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 18 March 1970. If a party or counsel does not follow proper procedures as mandated or authorised under the applicable Hague Convention (or bilateral treaty), for example, in transmitting and answering a request for evidence and information issued by a foreign court with a subpoena, it may find itself in violation article 271 of the Swiss Criminal Code, the Swiss blocking statute, which prohibits activities on behalf of a foreign state on Swiss territory without lawful authorisation.

Service of judicial documents originating in Switzerland to a recipient located in Switzerland (ie, documents issued within state court proceedings) is governed by articles 136 to 141 of the CCP. In general, service is effected through the court by means of registered mail or mail against return receipt or, with the agreement of the recipient, by electronic means. In addition, if the recipient’s domicile in Switzerland is unknown or service of process is impossible or impracticable, or the recipient has not named an agent for service of process, then service may be effected by publication in the official cantonal or federal gazette. The service of extrajudicial documents within Switzerland is not regulated, although registered mail is the most common form of service.

According to the Guidelines on International Judicial Assistance in Civil Matters published by the Federal Office of Justice, under the Hague Service Convention, the Swiss authorities have a practice of effecting the service of documents requested by a foreign state, on the first occasion and in the absence of any special requests by the requesting state, by regular mail to the addressee. Regular service does not require a translation. If the addressee refuses to accept service, however, the competent Swiss central authority will then request a formal request with a translation.

32. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction? Is your jurisdiction a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter?

Switzerland

Service of procedural documents issued during arbitral proceedings, including orders and awards, is to be effected according to the applicable, relevant rules chosen by the parties – be it directly or by reference to specific arbitration rules – or decided by the arbitral tribunal.

If a party prevents service from being effected, the arbitral tribunal seated in Switzerland can request a Swiss court to proceed by way of judicial assistance in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters of 15 November 1965 (the Hague Service Convention) or the Hague Convention on Civil Procedure of 1 March 1954.

The provisions governing the service of judicial and extrajudicial documents on a defendant located outside Switzerland depend on the defendant’s state of domicile.

Switzerland is a party to the Hague Service Convention and to the Hague Convention on Civil Procedure. If the defendant is located in a country not party to those Conventions and no bilateral treaty exists, the Swiss authorities apply the Hague Convention on Civil Procedure (per PILA, article 11a(4)).

Switzerland does not regulate whether documents from Switzerland bound to be sent to a foreign country ought to be translated. The party ought to consult the rules and regulations of the foreign country in which it seeks to serve a party.

33. Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction? Are there any databases or publicly available registers providing information on award debtors’ interests in other companies?

Switzerland

There are several databases and publicly available registers that may be useful for identifying an award debtor’s assets, as well as the status of a debtor. Some of the registers allow one to search by the owner’s name; for example:

• The Swiss Land Registry provides public access to ownership details for identified properties and details of certain registered charges, and a person showing a legitimate interest may request additional information.
• The Swiss Car Registry, Ship Registration Office and Maritime Navigation Registry Office provide ownership and other information regarding motor vehicles, inland ships, and deep-sea vessels and yachts sailing under Swiss flag, respectively.
• The Swiss Aircraft Registry provides information regarding Swiss-registered aircraft, and it is possible to search using the owner’s or holder’s name.
• Trademarks, patents and designs are registered with the Swiss Federal Institute of Intellectual Property and may be searched using the owner’s name.
• Financial and auditing reports of companies listed in Switzerland are published on the website of the relevant exchange: the SIX Swiss stock exchange or the BX Berne eXchange.
• Information regarding individual debtors and corporations subject to debt enforcement or bankruptcy proceedings may be obtained from the debt collection and bankruptcy offices by certain persons demonstrating a legitimate interest.
• Ownership of certain tangible assets may be registered at the debt collection office where the acquirer of the asset is domiciled. These records are publicly accessible.

34. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Switzerland

An award debtor will not be compelled to disclose the existence and location of assets during attachment or enforcement proceedings.

35. What kinds of assets can be attached within your jurisdiction?

Switzerland

Articles 271 to 281 of the DEBA provide the rules to attach property in Switzerland. To be attachable, the property must be seizable within the meaning of article 92 et seq (DEBA, article 275). This category includes tangible assets (real estate, furniture, securities) and receivables that have a patrimonial value (DEBA, articles 271, 272). Assets in bank accounts can also be attached.

36. Are interim measures against assets available in your jurisdiction?

Switzerland

Swiss courts may order the attachment of assets in Switzerland as an interim measure of enforcement, including on an ex parte basis, pursuant to articles 271 to 281 of the DEBA. Typically, this consists of blocking a bank account in a financial institution in Switzerland. There is also the possibility to request the compilation of an inventory, pursuant to article 162 of the DEBA. Once the inventory has been prepared by the debt collection office, the debtor cannot dispose of any of the assets listed in the inventory for four months, thus effectively creating an interim measure of enforcement. Alternatively, and only in the case of fraudulent or criminal acts, a creditor may request a freezing order under criminal procedure law.

37. What is the procedure to apply interim measures against assets in your jurisdiction?

Switzerland

The main interim measure against assets is an attachment order (DEBA, articles 271 to 281). An award creditor may seek an order of attachment on an ex parte basis.

38. What is the procedure for interim measures against immovable property within your jurisdiction?

Switzerland

The main interim measure for enforcement against immovable property is an attachment order (per DEBA, articles 271 to 281). Special regulations apply for enforcement against real estate (such as the Ordinance of the Swiss Supreme Court on the Enforcement on Real Estate).

39. What is the procedure for interim measures against movable property within your jurisdiction?

Switzerland

The main interim measure for enforcement against movable property is an attachment order (DEBA, articles 271 to 281). In the context of enforcement against movable property, Switzerland has special legislation and is a signatory state to a number of specific conventions containing provisions on the seizure of, and enforcement against, movable property, including aircraft and ships.

40. What is the procedure for interim measures against intangible property within your jurisdiction?

Switzerland

There is no specific procedure in place, but trademarks and patents registered with the Swiss Federal Institute of Intellectual Property may be seized according to normal attachment proceedings (SFSC Decision 5A_652/2015 of 13 May 2016).

41. What is the procedure to attach assets in your jurisdiction?

Switzerland

A party seeking enforcement may obtain a civil attachment order (freezing order) pursuant to articles 271 to 281 of the DEBA. Attachment proceedings may be conducted ex parte before a competent court at the award debtor’s seat in Switzerland or where the assets are located. The requirements for an attachment depend on whether it is requested prior to, or after, issuance of an arbitral award.

At the pre-award or prejudgment stage, a party seeking an attachment must establish prima facie that:

• it has a mature and unsecured claim against the debtor;
• at least one of the statutory reasons under article 271(1), paragraphs (1) to (5) of the DEBA is fulfilled, namely:
  • the debtor has no permanent place of residence in Switzerland;
  • the debtor is concealing its assets, absconding or making preparations to abscond to evade the fulfilment of its obligations;
  • the debtor is travelling through Switzerland or belongs to the category of persons who visit fairs and markets and the creditor’s claim is to be fulfilled immediately;
  • the debtor does not have its residence or seat in Switzerland, and the claim has a sufficient connection with Switzerland or is backed by a signed acknowledgment of debt; or
  • the creditor holds a certificate of shortfall against the debtor; and
• the debtor has assets located in Switzerland.

The condition of a sufficient connection or link with Switzerland is often one of the main challenges that arise in a civil attachment proceeding. Such a connection or link will be found to exist when, for instance, the underlying agreement has been entered into or must be performed at least partially in Switzerland, or when a payment must be made in Switzerland, or when the contract is subject to Swiss law or provides for Swiss jurisdiction.

Importantly, based on article 271(1)(6) of the DEBA, once an award or judgment rendered in Switzerland confirming that the claim has been issued (and in other cases determined by DEBA, article 80(2)), it is not necessary to establish a sufficient link with Switzerland, and a party seeking an attachment need only establish prima facie that it has a mature and unsecured claim against the debtor and the debtor has assets located in Switzerland.

The assets and their location must be precisely indicated in the request. As a preliminary matter, the judge will examine prima facie whether the formal and substantive requirements of the New York Convention are met.

Court fees for a civil attachment request are a maximum of 2,000 Swiss francs. In many cantons (Geneva, for example), the court may require the applicant to provide security, as a matter of course. Documents produced by the applicant must be translated into the language of the specific court (whether German, French or Italian), depending on the region of the country. The court typically renders a decision within a day.

Once the attachment is granted, the debtor may file an objection with the judge within 10 days of receipt of the attachment minutes, and an adverse decision on the objection may be appealed to the higher cantonal court, and then to the Swiss Federal Supreme Court. However, an objection or appeal will not render the attachment ineffective during the course of those proceedings. If the attachment is granted and the debtor does not successfully challenge it, the award creditor must commence debt collection proceedings within 10 days or the attachment order will lapse.

42. What is the procedure for enforcement measures against immovable property within your jurisdiction?

Switzerland

The attachment request proceeding does not change depending on the targeted property. Therefore, if the immovable property is clearly designated, notably with its address and the registration excerpts of the land registry, the attachment request will have a higher chance of success than if no information is provided with the request.

43. What is the procedure for enforcement measures against movable property within your jurisdiction?

Switzerland

The attachment request proceeding does not change depending on the nature of the targeted property. Therefore, if the movable property is clearly designated, notably with a description of its nature, location and, where possible, the registration excerpts of the proper registry (eg, aircraft register, ship register, car register, trade register), the attachment request will have a higher chance of success than if no information is provided with the request.

44. What is the procedure for enforcement measures against intangible property within your jurisdiction?

Switzerland

There is no specific procedure in place, but trademarks and patents registered with the Swiss Federal Institute of Intellectual Property may be seized according to normal attachment proceedings (SFSC Decision 5A_652/2015 of 13 May 2016).

45. Are there specific rules applicable to the attachment of assets held by banks? Is it possible to attach in your jurisdiction sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible to attach in your jurisdiction the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

Switzerland

It is generally possible to attach bank accounts in a branch or subsidiary of a foreign bank located in Switzerland. Generally, the more information the creditor has about the debtor’s accounts, such as the account numbers, the better. The amount detail required may depend on the canton where enforcement is sought. In Geneva, for example, there is no need to provide exact or very precise information about the account; rather, a description in the attachment request of ‘all assets and monies’ deposited in the name of the debtor in the books of the relevant bank meets the requirement of ‘sufficient precision’ per article 275 of the DEBA. In other cantons, the number of the bank account may be required.

According to the Swiss Federal Supreme Court, it is possible to attach in Switzerland the bank accounts opened in a branch or subsidiary of a Swiss bank located abroad (SFSC Decision 128 III 437 of 20 August 2002). Indeed, Swiss case law refuses to assimilate the foreign branch or subsidiary of a Swiss bank in the same way as a legally independent entity. According to the Swiss Federal Supreme Court, the fact that the claim arises from a relationship with a foreign branch or subsidiary does not justify that the Swiss bank, of which the branch or subsidiary is legally dependent, is excluded from Switzerland's sovereignty in enforcement matters, a subject which is debated among legal authors (SFSC Decision 140 III 512 of 3 September 2014).

46. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

Switzerland

Switzerland has not enacted legislation specifically governing recognition and enforcement of arbitral awards against foreign states. In general, Switzerland applies the doctrine of restricted immunity of states, whereby the foreign state generally enjoys immunity from claims arising out of activities performed and from execution against assets owned and used for the exercise of sovereign authority (jure imperii). However, activities performed by the foreign state and assets owned and used by the state for a commercial purpose (jure gestionis) do not generally enjoy immunity from execution. The Swiss Federal Supreme Court has in fact considered that the principle of restricted immunity is part of the jus commune of public international law (SFSC 106 Ia 142 of 19 June 1980).

Switzerland is an early signatory and has ratified the 1972 European Convention on State Immunity and the 1972 Additional Protocol to the Convention for the Establishment of a European Court for State Immunity. However, the 1972 European Convention has only been ratified by Austria, Belgium, Cyprus, Germany, Luxembourg, Netherlands and the United Kingdom (and signed by Portugal) so its scope is quite limited.

Switzerland has also ratified the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004 on 16 April 2010, which codifies the principle of restricted immunity. This Convention is not yet in force and Switzerland has notified its intention to denounce the 1972 European Convention once this UN Convention enters into force.

47. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

Switzerland

According to article 16 of the 1972 European Convention on State Immunity, service of judgments and of documents by which proceedings are instituted is deemed to have been effected by the receipt of such documents by the Ministry of Foreign Affairs. It is also mentioned under this Convention that such documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the State concerned. Under the UN Convention on Jurisdictional Immunities of States and Their Property of 2004 (article 22), the same principle applies, absent an applicable convention or special arrangement. 

Service of documents on other foreign countries not party to the European Convention would have to be effected in accordance with any applicable international convention between Switzerland and the foreign state, or in its absence, the laws of the relevant foreign state.

48. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?

Switzerland

Switzerland applies a restrictive interpretation of state immunity from jurisdiction.

This entails, on one hand, that in cases in which the foreign state acts in the exercise of its sovereign capacity (jure imperii), then it may invoke sovereign immunity from jurisdiction and cannot be a party to proceedings before Swiss courts.

On the other hand, this means that in cases in which the foreign state acts in a private capacity (jure gestionis), then it may not invoke sovereign immunity from jurisdiction and can be brought before a Swiss court. Yet, the additional requirement is that the transaction out of which the claim against the foreign state arises has a connection to Switzerland (in German: 'Binnenbeziehung'; in French 'rattachement suffisant') (SFSC Decision 106 Ia 142 of 19 June 1980; SFSC Decision 144 III 411 of 7 September 2018).

Moreover, according to article 177(2) of the PILA, foreign states and state entities cannot assert immunity from the jurisdiction of an arbitral tribunal or contest their capacity by invoking the state’s own laws

This is confirmed by the majority of authors, a foreign state waives its right to invoke immunity from jurisdiction by entering into an arbitration agreement and that is also with regard to the national courts competent in case of recognition or enforcement or arbitral awards. This has, however, not yet been decided by the Swiss Federal Supreme Court (ATF of 4 December 1985, MINE v Guinea). This is in fact in line with article 17 of the United Nations Convention on Jurisdictional Immunities of States and Their Property of 2004, which precisely stipulates that a foreign state "cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to: [...] (c) the confirmation or the setting aside of the award, unless the arbitration agreement otherwise provides". 

49. May award creditors apply interim measures against assets owned by a sovereign state?

Switzerland

Assets that fall within the category where the State acted de jure imperii cannot be subject to interim measures. In such case, the foreign state can claim immunity from execution, namely regarding interim measures against its assets.

Regarding assets that fall within the category where the State acted de jure gestionis, article 271(1)(4) DEBA allows a creditor to attach the assets owned by a sovereign state as long as the claim – as confirmed by the award – has not only a "sufficient connection" but an "appropriate connection" with Switzerland. While the "appropriate connection" test was already established by the Swiss Federal Supreme Court in 1980 (ATF 106 Ia 142 of 19 June 1980), it has been confirmed, most recently in 2018, where the Swiss Federal Supreme Court illustrated the notion of an "appropriate connection" with Switzerland with the following examples: (i) an underlying claim that derives from an obligation established in Switzerland, (ii) an underlying claim that derives from an obligation to be performed in Switzerland, or (iii) when Switzerland is the place of performance (SFSC Decision 144 III 411 of 7 September 2018).

Having assets in Switzerland or the fact that the arbitral tribunal who issued the award is seated in Switzerland does not qualify as an "appropriate connection". 

It must be noted that if the UN Convention on Jurisdictional Immunities of States and Their Property of 2004 comes into effect, it will change Swiss law by restricting parties’ ability to seek interim relief against sovereign assets and may change the presumption that sovereign immunity covers only monetary assets that have been earmarked for public purposes (see article 18).

50. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

Switzerland

As a preliminary comment, under article 177(2) of the PILA, foreign states and state entities cannot assert immunity from the jurisdiction of an arbitral tribunal or contest their capacity by invoking the state’s own laws.

However, the fact that a state has entered into an arbitration agreement does not, by itself, allow the award to be executed against the foreign state’s assets. Three conditions must be fulfilled for an award creditor to enforce against state assets when a state is a debtor:

First, the claim to be enforced must have arisen from an act performed in a commercial capacity (jure gestionis).

Second, the assets of the state against which enforcement is sought must not be allocated to, earmarked for or intended for the state’s sovereign activities (jure imperii, eg, assets of diplomatic missions, funds specially allocated to the purchase of arms, or buildings for foreign citizens run by a foreign consulate), pursuant to article 92(1)(11) of the DEBA. However, assets owned by a foreign state earmarked for commercial purposes may be subject to enforcement action (jure gestionis). The concept of official or government purpose is generally interpreted quite widely by the Swiss Federal Supreme Court (see SFSC Decision 134 III 122 of 15 August 2007). According to the UN Convention on Jurisdictional Immunities of States and Their Property of 2004, enforcement against assets belonging to a foreign state will only be possible whenever strict conditions, listed under article 19, will be met (such as, for example, when the State has allocated or earmarked property for the satisfaction of a claim). 

The third condition is that there is an "appropriate connection" (in German: 'Binnenbeziehung'; in French 'rattachement suffisant') between the legal relationship giving rise to the claim and Switzerland. In a decision dated 7 September 2018, the Swiss Federal Supreme Court refused the enforcement of a foreign arbitral award against a state owing to the lack of "appropriate connection" and listed the following elements as qualifying to create an "appropriate connection" with Switzerland: an underlying claim that derives from an obligation established or to be performed in Switzerland; or Switzerland is the place of performance (SFSC Decision 144 III 411 of 7 September 2018). It is not sufficient, however, that a debtor has assets or the claimant is domiciled in Switzerland or again if the arbitral tribunal had its seat in Switzerland.

51. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

Switzerland

A foreign state may waive immunity from execution. When a state expressly and without reservation waives execution immunity on entering into an agreement, even the state’s assets being used for government purposes will become subject to execution (SFSC 134 III 122 of 15 August 2007). While the Swiss Federal Supreme Court has noted that for certain categories of property, such as military assets, embassy buildings or assets of a State's central bank, a waiver will be reviewed strictly, the UN Convention on Jurisdictional Immunities of States and Their Property of 2004 does stipulate that such categories of property can be subject to an express waiver.

52. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

Switzerland

Corporate entities that have their own legal personality under the law of their legal domicile cannot, in principle, claim state immunity. Exceptions are conceivable only insofar as corporate entities have acted with state sovereignty (jure imperii) (SFSC Decision 110 Ia 43 of 21 March 1984).