Brexit 5: Applicability Lugano-convention

28 April 2023

Update Letter Nr. 144

In recent months, attachment.ch has regularly reported on the case law of the courts regarding the recognition and enforcement of Brexit judgments (attachment.ch, updates 126, 129, 132 and 139). The Federal Supreme Court ("SFC") has rendered another important judgment on 31 March 2023:

1.
In the SFC decision 147 III 491, the FSC stated that the recognition and enforcement of judgments rendered until 31 December 2020 (expiry of the transitional period for the United Kingdom's withdrawal from the European Union EU) are subject to the provisions of the Lugano Convention even after 1 January 2021 (consideration 6.1.2). The English judgment, the cantonal proceedings regarding the declaration of enforceability and the filing of the appeal to the Federal Court all dated before 31 December 2020.

2.
a) The judgment of the Federal Supreme Court of 31 March 2023 dealt with a judgment of an English court of 20 November 2020. The Court of Appeal of England and Wales and the Supreme Court of the United Kingdom dismissed appeals by the debtor after 1 January 2021. On 1 February 2022, the creditor filed a request for declaration of enforceability and attachment in Switzerland based on the enforceable English judgment of 20 November 2020. The Cantonal Court of Zug declared the English judgment enforceable on 2 February 2022, and the Superior Court of Zug confirmed this decision on 16 August 2022.

b) The Federal Supreme Court examined various objections raised by the debtor and concluded that, in view of the dismissal of the appeals in England, it was not the decision of the English appellate court (after 1 January 2021) that was decisive, but that of the first-instance judgment (20 November 2020).

c) It is irrelevant that the proceedings for a declaration of enforceability and attachment in Switzerland were initiated after 31 December 2020.

3.
The judgment of the Federal Supreme Court of 31 March 2023 still leaves some uncertainties. As a result, however, it is clear that decisions of English courts rendered before the end of the transitional period on 31 December 2020 and not subsequently set aside are to be declared enforceable under the provisions of the Lugano Convention, irrespective of when the application for a declaration of enforceability and attachment is filed in Switzerland.

This facilitates the filing of attachment applications for creditors.