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- Art. 96 para. 2 lit. a FC
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- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
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- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
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- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
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- Art. 47a FADP
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- Art. 50 FADP
- Art. 51 FADP
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- Art. 62 FADP
- Art. 63 FADP
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- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
I. Subject-matter and concept of judgment
1 In the case of a request for recognition under Article 33 of the Lugano Convention, the applicant bears the burden of proving that a judgment within the meaning of the Convention has been given. This is a positive requirement for recognition. Art. 32 Lugano is autonomous in determining which legal instruments are deemed to be judgments within the meaning of the Convention and can therefore be recognized and declared enforceable. However, Art. 32 Lugano Convention offers little guidance as to what the criteria are for the existence of a judgment. Thus, the article merely states that the term "judgment" covers any judgment rendered by a court of a Contracting State. Furthermore, the provision provides a non-exhaustive list of the legal acts covered by the concept of a judgment. Otherwise, Art. 32 Lugano Convention does not contain any requirements as to the content of the decision. Rather, the concept of a decision is not intended to be interpreted restrictively.
2 In principle, therefore, both the name of the decision and the type of proceedings in which it was given are irrelevant to its eligibility for recognition. Thus, decisions on the granting of legal protection in clear cases pursuant to Art. 257 of the Code of Civil Procedure are also covered by Art. 32 of the Lugano Convention. The concept of decision includes both final decisions, which terminate the proceedings (before the relevant instance), and partial decisions, which assess exclusively a part of the objectively or subjectively accumulated claims. Likewise, interim decisions which rule on individual preliminary issues without concluding the main proceedings before the relevant instance are in principle recognizable. Finally, the form and the content are not relevant for the qualification as a decision in the sense of Art. 32 Lugano Convention. In this sense, no substantive review of the merits of the asserted claim is required, which is why judgments by default can in principle be recognized and declared enforceable under the Convention.
3 Despite the lack of substantive requirements, however, it must at least be assumed that the judgment has legal consequences that can be recognized or declared enforceable across borders. Therefore, in order to qualify as a decision within the meaning of Art. 32 Lugano Convention, it is required on the one hand that the decision has legal consequences that are amenable to cross-border recognition or a declaration of enforceability. On the other hand, the decision must have been issued by a court within the meaning of Art. 62 Lugano Convention.
A. Cross-border effects
4 Only (potentially) cross-border effects are amenable to recognition or a declaration of enforceability under the Convention. Thus, legal instruments that have only an internal effect (such as orders to take evidence or procedural orders that decide only on the progress of the proceedings) cannot be recognized or declared enforceable under the Convention. The same applies to judgments whose subject matter is confined to the territory of the sentencing State.
5 On the other hand, for a judgment to be recognized or declared enforceable under the Convention, there is no requirement that the judgment must have acquired the force of res judicata. Accordingly, a judgment may be recognized if an ordinary appeal has been lodged against it in the State of origin. Art. 37 (1) Lugano Convention provides for this situation that the recognition court "may" suspend the proceedings. However, it does not have to do so. For the declaration of enforceability, however, it is at least required that the judgment is provisionally enforceable in the State of origin (Art. 38 (1) Lugano Convention). Enforceability from a legal point of view is sufficient. On the other hand, it is irrelevant whether the judgment cannot be enforced in the State of origin for factual reasons. This is due to the fact that the Convention only regulates admission to enforcement and not enforcement per se. The latter is reserved to the national law of the executing state.
6 Also covered by the concept of a judgment are precautionary measures. In order for such measures to be recognized and enforced under the Convention, it is a prerequisite, according to the case law of the ECJ, that the opposing party has been granted the right to be heard. However, the required right to be heard is already ensured if there was still the possibility to raise objections against the decision or to lodge an appeal. Therefore, for a decision to be recognizable, only the possibility of an adversarial proceeding must exist, and this before the question of its recognition or enforcement arises. Superprovisional measures that are issued without hearing the opposing party are therefore not recognizable.
7 In the case of provisional measures issued on the basis of Art. 31 Lugano Convention, there are additional requirements according to the case law of the ECJ, which must also be examined in the context of the enforceability declaration procedure. On the one hand, there must be a real link between the subject matter of the measure and the territory of the jurisdiction claimed for the issuance of the measure. On the other hand, the provisional character of the measure must be preserved. In the case of performance measures, this presupposes that repayment is guaranteed in the event that the applicant loses on the merits. The Court of Justice links these conditions to the recognizability or enforceability of such measures. If these conditions are not met, such measures cannot be recognized or declared enforceable under the provisions of the Convention.
8 It is disputed to what extent procedural decisions (i.e. decisions which decide on the existence of a procedural requirement) are recognizable. In its Gotha jurisprudence, the ECJ held that a decision by which a Member State court declined its (international) jurisdiction on the basis of a choice-of-court agreement was covered by the concept of a decision under Article 32 aEuGVVO [Article 32 Lugano Convention]. It is unclear whether this means that all procedural decisions are eligible for recognition. The reasoning of the Gotha judgment does point out that the concept of judgment should be broadly defined in the sense of promoting the free movement of judgments and should therefore in principle cover all trial judgments. However, an exception should apply insofar as the content of the procedural judgment is intended to have only intra-territorial effect and precisely no international effect (e.g., a decision on lack of jurisdiction due to a failure to grant leave to bring an action or due to a lack of subject-matter jurisdiction).
B. Contracting State Court (Art. 62 Lugano Convention)
9 The definition of a treaty court is derived from Art. 62 LugÜ, which is independent of the treaty. In contrast to the aLugÜ, which in principle qualified only judicial authorities as courts within the meaning of the Convention, Art. 62 LugÜ extends the concept of court also to administrative authorities. According to Art. 62 Lugano Convention, the term "court" includes any authority which has been designated by a Contracting State as having jurisdiction over the matters covered by the Convention. It follows from this definition that, in principle, any state authority ("any authority") which is competent to judge a civil or commercial matter is covered by the concept of a court under Art. 62 Lugano Convention.
10 For the qualification as a court in the sense of Art. 62 or Art. 32 Lugano Convention, the function exercised by the state authority and not its formal, organizational classification in national law is therefore decisive (so-called functional concept of court). Accordingly, the designation of the authority in national law or the type of jurisdiction is not relevant. Consequently, decisions of criminal or administrative courts are also eligible for recognition under the Convention, provided they are covered by the material scope of application. For example, decisions of a criminal court on civil claims in the context of an action for adhesion may well be recognized under the Convention. Similarly, the decision need not have been issued by a judge either. Decisions of a court clerk or an otherwise competent judicial officer may also be recognized. However, the functional approach presupposes that the authority also has a corresponding judicial function. In the sense of the ECJ case law in Solo Kleinmotoren, it is therefore a prerequisite for decisions that the authority itself, by virtue of its mandate, can decide on the points in dispute between the parties.
11 Based on this consideration, the qualification as a court in the sense of Art. 32 Lugano Convention requires two things: On the one hand, it must be a state authority. In this context, it must be taken into account that the European Union itself is considered a contracting state to the Convention. Consequently, the various courts and offices of the EU are also covered (such as the European Union Intellectual Property Office [EUIPO] or the ECJ; cf. Art. 1 para. 3 Lugano Convention). Also covered are joint courts of several Contracting States (such as the Benelux Court of Justice), insofar as jurisdictional tasks have been assigned to them by the Contracting States. Furthermore, decisions of other supranational courts or authorities (such as the ECHR bodies) are not courts within the meaning of Art. 62 Lugano Convention, since such institutions are not courts of a Contracting State. Furthermore, private courts (such as arbitral tribunals, courts of associations or ecclesiastical courts) do not qualify as courts within the meaning of Art. 62 Lugano Convention. On the other hand, it must be assumed that the deciding authority has a decision-making power for the case in question. Accordingly, at least a basis of authorization in a sovereign act must be presupposed, which declares the deciding authority competent to decide the dispute in question.
12 It is unclear to what extent a judicial procedure must precede the decision. Thus, with regard to the concept of a decision within the meaning of Article 2(1)(a) of the Regulation, the ECJ stated that the principle of legitimate expectations requires that decisions are taken in a judicial procedure which guarantees independence and impartiality and in which the principle of adversarial proceedings is respected. Similarly, it is also demanded by the majority that the deciding authority must fulfill the requirements of an independent and impartial court in accordance with Art. 6 ECHR. However, these considerations cannot be applied to the concept of a court in the Lugano Convention without further ado. Similar to the aLugÜ, the concept of court in the EuGVVO is also limited to judicial authorities. Accordingly, it seems justified to define this concept on the basis of the characteristics of a court according to Art. 6(1) ECHR. Thus, the expression of a European rule of law standard and thus also of a minimum standard to be applied to a court can certainly be recognized in Art. 6(1) ECHR.
13 Within the framework of the Lugano Convention, however, the requirement of a court as the deciding authority was expressly dispensed with. Consequently, at least the Convention itself does not impose any further requirements on the proceedings to be conducted. However, such an obligation can be inferred from the ECHR, which provides for various procedural guarantees in Article 6(1) ECHR. Recognition of decisions that violate these procedural guarantees can be refused on the basis of the formal public policy reservation pursuant to Art. 34 No. 1 Lugano Convention. Art. 6 para. 1 ECHR provides, inter alia, for the right of every party to have its civil claims adjudicated by an independent, impartial and law-based tribunal in a fair trial. It can be deduced from this that the person concerned must at least have the possibility of challenging measures before a court that can decide on all relevant questions of fact and law. However, it is perfectly compatible with this provision to consider an administrative order as a decision in the sense of Art. 32 Lugano Convention, provided that prior to the recognition there was at least the possibility of a judicial review of the order in the state of origin.
II. Special Issues
A. Decisions of conciliation authorities
14 Conciliation authorities can be qualified as courts within the meaning of Art. 62 or Art. 32 Lugano Convention. However, in order to qualify as a decision in the sense of Art. 32 Lugano Convention, it is necessary that the conciliation authority has a decision-making competence in the sense of Art. 210 ff. ZPO. The ECJ did hold in Schlömp that for the purpose of establishing lis pendens under Art. 30 (1) Lugano Convention, conciliation authorities are to be qualified as courts. However, this finding is only in appearance contradictory to the statutory decision-making power to be presupposed. It must be remembered that Art. 62 Lugano Convention follows precisely a functional approach and thus focuses on the function to be exercised according to the statutory basis. In Swiss civil procedural law, the conciliation authority generally has the function of initiating proceedings (Art. 197 ZPO). In this respect, the filing of a conciliation request also triggers the lis pendens in Swiss civil procedure law (Art. 62 para. 1 CCP). In contrast, the conciliation authority, with the exception of the constellations of Art. 210 et seq. ZPO, the conciliation authority does not have the power to decide the civil dispute pending between the parties. Accordingly, outside of these constellations, conciliation authorities do not qualify as courts within the meaning of Art. 32 Lugano Convention. Therefore, for example, a grant of leave to bring an action (apart from the fact that this only has an effect within the proceedings and therefore does not have any effects which can be recognized) does not constitute a decision within the meaning of Art. 32 Lugano Convention. In the case of proposed judgments, the situation is less clear. Thus, according to Art. 211 para. 1 CCP, a proposed judgment is deemed to be accepted and has the effects of a final decision if it is not rejected by either party within twenty days. However, if one of the parties rejects the proposed judgment, the conciliation authority is retroactively deprived of its decision-making authority. In this case, the conciliation authority no longer has a decision-making function, which is why it can no longer be regarded as a court within the meaning of Art. 32 Lugano Convention. Accordingly, a proposed judgment should only be considered a decision within the meaning of Art. 32 Lugano Convention after the expiry of the 20-day period and the determination of res judicata by the conciliation authority.
B. Exequatur decisions
15 Decisions which recognize or declare enforceable judgments of other Contracting States (so-called exequatur decisions) are not eligible for recognition under Art. 32 et seq. Lugano Convention (so-called prohibition of double exequatur). This follows from the fact that, on the basis of the recognition and enforceability declaration provisions of the Convention, each Contracting State must decide independently whether the conditions for recognition are fulfilled. The same applies to decisions recognizing or declaring enforceable a judgment of a third state. Such decisions also do not participate in the Convention's freedom of movement.
16 On the other hand, treaty-based judgments that modify a treaty-based or third-country judgment are eligible for cross-border recognition or a declaration of enforceability. It is essential, however, that the earlier judgment between the same parties and on the same subject matter of the dispute be replaced or modified in result.
C. Decisions of the SchKG
1. Decisions in connection with bankruptcy proceedings
17 In connection with decisions arising from SchKG proceedings, first of all, Art. 1(2)(b) LugÜ must be taken into account. Accordingly, bankruptcy, compositions and similar proceedings are excluded from the material scope of the Convention. Judgments arising from such proceedings are also not covered by the Convention.
2. Enforcement measures
18 It should also be borne in mind that Swiss debt enforcement and bankruptcy law is characterized by a particularly close intertwining of the cognition and enforcement proceedings. Thus, the Swiss debt enforcement proceedings have a dual nature as title production and title enforcement proceedings. This gives rise to significant difficulties in the assignment to the system of recognition and declaration of enforceability of the Convention.
19 On the one hand, within the framework of the SchKG, the demarcation between pure enforcement measures and enforcement titles is particularly difficult. The concrete distinction must be made autonomously and according to functional criteria. Measures that serve the initiation or execution of enforcement proceedings are considered enforcement measures. It is essential that such measures do not resolve a dispute between the parties and serve exclusively to enforce the law by force. Due to the fact that the actual enforcement is exclusively a matter of national law, pure enforcement measures are also not amenable to recognition and enforcement according to Art. 32 et seq. Lugano Convention.
20 Therefore, in my opinion, a distinction must be made between enforcement measures and actual enforcement instruments according to the following criteria. Enforcement acts that serve exclusively to enforce a legal claim that has already been recognized by a court are to be qualified as enforcement measures (this includes, for example, attachment orders). However, if the enforcement action also includes a decision on a disputed point between the parties, the action must be qualified as an enforcement order covered by Art. 32 Lugano Convention.
3. Limitation to the initiated enforcement proceedings
21 On the other hand, legal titles under the SchKG are also difficult to classify insofar as their effects under debt enforcement law are limited to the initiated domestic debt enforcement proceedings. Therefore, if legal titles only have effects under debt collection law and no effects under substantive law (such as the decision to initiate legal proceedings or the uncontested and unchallenged order for payment), the decision itself is limited in terms of its subject matter to the initiated debt collection proceedings. Because of this (factual and, as a result, also territorial) limitation, it is sometimes argued in doctrine that such titles cannot be recognized and declared enforceable under the provisions of the Convention.
22 On the one hand, such a view is entirely justifiable and finds some confirmation in the case law of the ECJ on the legal consequences of a declaration of enforceability. Thus, the ECJ has stated that it is not appropriate to grant a decision legal effects upon its declaration of enforceability that it does not have in the state of origin. In the case of a declaration of enforceability, however, a purely debt enforcement title under the SchKG would be granted a more far-reaching effect in the state of enforcement than in the state of origin. Thus, by means of the enforceability declaration, the title (in contrast to Switzerland) would also have an effect outside the ongoing debt enforcement proceedings. On the other hand, this restriction is also due to the peculiarity of the Swiss debt enforcement proceedings, according to which the debtor's entire assets located in Switzerland can already be accessed during the ongoing proceedings. There is therefore no reason per se to initiate further debt collection proceedings based on the same title. As a result, this is a territorial limitation of the effects of an order for payment imposed by national law. However, it is at least questionable whether the provisions on the free movement of judgments of the Convention are at all within the disposition of the contracting states. Thus, the national law of a Contracting State should in itself be precluded from excluding the recognition and enforcement of a judgment under the Lugano Convention. Accordingly, in the sense of the free movement of judgments, an international perspective is to be preferred with respect to this restriction. Accordingly, it must be examined whether, irrespective of the restriction imposed by national law on the debt collection proceedings, the judgments have legal consequences that are amenable to cross-border recognition or declaration of enforceability.
4. Order for payment
23 If the uncontested order for payment was issued on the basis of a judgment or judgment surrogate (so-called titled order for payment), the order for payment does not constitute an independent enforcement title. Rather, it merely shows that the underlying decision is enforceable. Therefore, only the underlying decision that is deemed enforceable on the basis of the order for payment participates in the Convention's freedom of movement (insofar as it is covered by the material scope of application) (Art. 38 para. 1 Lugano Convention).
24 It is much more controversial whether an uncontested order for payment is to be regarded as a decision within the meaning of Art. 32 Lugano Convention. In some cases it is argued that the order for payment is a pure enforcement measure. However, it must be taken into account that the order for payment has a dual nature. First of all, it is merely an official demand for payment and thus initiates the intended enforcement proceedings. In this function, the order for payment is only a part of the compulsory enforcement proceedings and is in fact a pure enforcement measure. However, if the debtor does not raise a legal objection or if a possible legal objection is eliminated, the payment order becomes "final" and a de facto enforcement title. The broad concept of a decision according to Art. 32 Lugano Convention covers all enforcement titles. This also follows from the case law of the ECJ, in which enforcement orders functionally equivalent to the Swiss order for payment (such as the Italian decreto ingiuntivo) were qualified as judgments within the meaning of Art. 32 Lugano Convention. Moreover, as is well known, Art. 32 LugÜ mentions the order for payment as an example of a judgment, whereby the concept of judgment per se has been extended to include orders for payment. Based on this, it cannot be assumed that the Swiss order for payment is a mere enforcement measure within the meaning of the Convention. On the contrary, it is an enforcement order which can in principle participate in the free movement of titles under the Convention.
25 It is also irrelevant that the order for payment is issued by a debt collection office and not by an actual court. As is well known, the concept of court was extended to administrative authorities by Art. 62 LugÜ. Instead, based on the functional concept of a court, the function of the debt collection agency to be exercised according to the legal basis is to be taken into account. In this context, it is noticeable that the debt collection authority is not declared competent by Swiss law (more precisely: by the SchKG) to decide a dispute existing between the parties. Based on the Solo Kleinmotoren jurisprudence of the ECJ, this initially speaks against a qualification of the order for payment as a decision in the sense of Art. 32 LugÜ. However, the uncontested and untitled order for payment becomes an enforcement title by operation of law. Accordingly, in this constellation, the debt collection authority has the authority by operation of law to issue an enforcement order. Consequently, in this constellation the debt collection authority is also competent to decide on a point in dispute between the parties (namely the enforceability of the claim), which is why it is to be regarded in this respect as a court within the meaning of Art. 62 Lugano Convention. Accordingly, although the order for payment would not be amenable to recognition, it would be amenable to a declaration of enforceability abroad.
26 Similarly, the fact that the uncontested and untitled order for payment is not preceded by adversarial proceedings is not decisive. According to the case law of the ECJ, only the possibility of adversarial proceedings before the time of the application for recognition or declaration of enforceability is required. This possibility exists without further ado in the case of an order for payment; the debtor can either raise a legal objection or have it established at any time in court proceedings that the claim on which the order for payment is based does not exist (Art. 85a para. 1 SchKG). This possibility also safeguards the right to judicial proceedings within the meaning of Article 6 ECHR.
27 The only question is whether the order for payment can also have cross-border effects. The order for payment is in itself limited to the initiated debt collection proceedings and does not enable further debt collection proceedings to be initiated. The untitled and uncontested order for payment therefore only creates an enforcement title for the pending debt collection (and not in general) and is therefore also inseparably connected to it. However, in the sense of the free movement of judgments, an international perspective is to be preferred here, as already mentioned, according to which the untitled and uncontested order for payment is nothing other than a temporally limited enforcement title. Since time-limited enforceable titles are amenable to a declaration of enforceability under the Convention, I believe that such orders for payment can participate in the cross-border free movement of titles.
5. Decisions to open a case
28 If a legal proposal that has been raised is eliminated by means of a (provisional or definitive) decision to initiate legal proceedings or an action for recognition, this decision takes the place of the order for payment.
29 In the case of a definitive decision to initiate legal proceedings, this is an exequatur decision that declares the underlying judgment or judgment surrogate in the corresponding debt enforcement proceedings to be enforceable and eliminates the legal advance. Accordingly, this decision is neither recognizable nor enforceable under the Convention due to the prohibition of double exequatur. On the other hand, the legal title on which the decision opening the proceedings is based is in principle amenable to cross-border recognition and a declaration of enforceability under the Convention.
30 It is true that the provisional opening of proceedings also deals with the question of whether the public deed or acknowledgement of debt submitted fulfils the conditions for enforcement under Art. 82 SchKG. Thus, the judge opening the proceedings does not decide on the existence of the claim, but only on its enforceability. Nevertheless, this is basically (and contrary to the opinion of the Federal Supreme Court) a (summary) finding procedure that takes place within the framework of the debt enforcement proceedings. Thus, the opposing party is also free to assert substantive objections against the existence of the claim (Art. 82 para. 2 SchKG). As a result of the fact that summary judgments are also amenable to a cross-border declaration of enforceability under the Lugano Convention, the provisional judgment opening proceedings can in principle be declared internationally enforceable together with the order for payment under the Convention.
31 In this context, the existing limitation to the initiated debt enforcement proceedings should again be mentioned. Thus, the decision to initiate legal proceedings does not impose an obligation to make a monetary payment, but grants provisional initiation of legal proceedings in a specific debt collection for a specific amount of money. The effects of the decision are therefore once again limited to the debt collection proceedings initiated and serve solely to eliminate the legal objection raised. However, an international perspective is also preferable here, whereby the provisional decision to initiate legal proceedings (like the uncontested order for payment) also represents an enforcement title limited in time. It is true that the provisional judgment opening the proceedings is not in itself final upon its issuance, but is only provisionally enforceable (depending on the failure to raise an action for revocation). However, under the Convention, judgments that are merely provisionally enforceable are also amenable to a declaration of international enforceability. Accordingly, international enforceability must also be assumed here in favor of the greatest possible freedom of movement of titles.
6. Arrest
32 The attachment is a precautionary security measure under the SchKG. It is used to officially seize the debtor's assets. It is well known that precautionary protective measures are amenable to cross-border declaration of enforceability under the Convention. In this respect, protective measures such as the sequestro conservativo of Italian law or the freezing injunction of Irish law are deemed to be judgments within the meaning of Art. 32 Lugano Convention. The Swiss attachment pursuant to Art. 271 et seq. SchKG (in contrast, for example, to the attachment under German law pursuant to § 916 et seq. of the German Code of Civil Procedure) is limited in its subject matter to certain assets located in Switzerland to be named in the request for attachment (Art. 271 para. 1 SchKG). Accordingly, an international enforceability of the attachment is rejected by the majority of the courts. However, a declaration of enforceability under the Convention should at least be considered if assets already subject to attachment in Switzerland are transferred abroad. This, however, only insofar as the debtor was given the opportunity to oppose the attachment prior to the requested declaration of enforceability.
D. Litigation Settlements
33 In principle, court settlements are not eligible for recognition under Art. 32 et seq. Lugano Convention. They are governed separately by Art. 58 Lugano Convention and are only amenable to a declaration of enforceability. This poses difficulties in particular for Contracting States (such as Switzerland) where the court settlement has the force of res judicata. Thus, on a strict interpretation, the settlement under the CCP could have no legal effect under the Convention. Moreover, even the recognition court could not refuse to recognize a judgment on the ground that its content is inconsistent with such a court settlement. However, it is unclear to what extent the European legislator had in mind the court settlement according to the ZPO. Thus, Art. 58 LugÜ seems to be rather oriented towards settlements which do not become final and only have an enforceable content (as it is known in German or Austrian law).
34 It is therefore questionable whether the settlement under Art. 241 CCP in conjunction with a court order to set aside (Art. 241 para. 3 CCP) has an effect that can be recognized under Art. 32 et seq. LugÜ can be granted a recognizable effect. As is well known, in Solo Kleinmotoren, the ECJ based its decision on the fact that the decision is issued by a contracting state judicial body which, by virtue of its mandate, itself decides on the dispute existing between the parties. According to the ECJ, this requirement is not met in the case of a court settlement even if it is concluded before a court and ends a legal dispute. The lawsuit settlement is essentially contractual in nature, since its content is determined primarily by the will of the parties. Accordingly, it is decisive for the Court whether the court itself decides on the disputed issues or whether it is primarily the will of the parties that leads to the settlement of the dispute. It could be argued in favor of recognizability that the court's decision to write off the settlement documents a judicial review of the contents of the settlement. Thus, the judge has to examine the contents of the settlement at least summarily and rudimentarily and to refuse the write-off if what has been agreed upon in terms of content is manifestly incompatible with the law. It is true that the settlement in itself constitutes the actual act generating legal force. Nevertheless, the settlement only has an effect if this effect is certified by a write-off resolution. In the absence of such a writ of execution, the opposing party could, in the event of an appeal to the settlement, also argue that, in the opinion of the competent court, there was no effective settlement of the proceedings by declaration of the parties due to the non-existence of a writ of execution. However, it is doubtful whether this (limited) judicial review is already sufficient to nullify the "contractual nature" of the lawsuit settlement. Thus, despite the limited legal review power of the court, the content of the litigation settlement under Art. 241 CCP is essentially determined by the parties. Furthermore, the newly introduced Art. 2 lit. b EuGVVO into the parallel system of Brussels I has to be taken into account. This refers to a court settlement (instead of a court settlement) and defines this, among other things, as a settlement that has been "approved" by a court of a member state. In the end, also the settlement according to Art. 241 ZPO is approved by the court "for the sake of good order" in principle or the proceedings are written off. Therefore, it can be assumed that the court settlement, even with a court order to write off the proceedings, is not to be regarded as a decision in the sense of Art. 32 et seq. LugÜ is to be regarded.
35 It should be noted, however, that the boundary between a court settlement within the meaning of Art. 58 LugÜ and a decision within the meaning of Art. 32 LugÜ is fluid. If the judicial activity is not limited exclusively to the approval (or certification) of the settlement and the contents of the settlement are included in the judgment, such a judgment may constitute a decision within the meaning of Art. 32 Lugano Convention. This is at least the case if only the decision and not the settlement has legal effect. Judgments which are issued at the request of both parties (such as the Irish judgment by consent) should also be recognizable. In these constellations, the effects that can be recognized are only generated by an act of state authority, which is why a "purely contractual nature" can no longer be assumed.
E. Decisions in connection with arbitration
36 Arbitration is excluded from the material scope of the Convention (Article 1(2)(d) LugÜ). However, the exclusion of arbitration is formulated in an extremely vague manner and is therefore open to interpretation. It is undisputed that the Convention does not bind arbitral tribunals, which is why arbitral awards are not covered by the Lugano Convention. Rather, such judgments are in principle to be recognized and enforced under the New York Convention ("NYC"). In addition, certain state court proceedings closely related to arbitration may also be covered by the arbitration exclusion. Thus, judgments that are an indispensable prerequisite for the conduct of a specific arbitration proceeding are not covered by the substantive scope of the Convention. Thus, inter alia, judicial decisions to appoint or dismiss an arbitrator, to determine the place of arbitration or to extend the time limit for rendering an award are excluded from the scope of arbitration. Furthermore, the Convention does not apply to decisions on disputes relating to an arbitral award (such as actions for annulment of an arbitral award). On the other hand, the Convention applies when arbitration is merely the subject of a preliminary issue. Accordingly, unfortunately, substantive decisions rendered in disregard of an arbitration agreement are also deemed to be recognizable under the Convention. This represents a blatant violation of Art. II para. 3 of the NYT.
37 In general, the legal nature of the subject matter of the dispute seems to be decisive for the Court in determining whether a decision is covered by the material scope of the Convention. However, how the legal nature of the subject matter of the dispute is to be determined cannot be conclusively clarified on the basis of ECJ case law. In Van Uden, for example, the ECJ held, limited to precautionary measures, that the legal nature of the claims to be secured determines whether they fall within the scope of application. In its West Tankers case law, the ECJ then seemed to generally determine the legal nature of the subject matter of the dispute on the basis of the legal nature of the claims to be secured. Accordingly, I believe that it must be assumed that the Court of Justice determines the affiliation of a proceeding, and thus also of its decision, to the substantive scope on the basis of the legal nature of the claims to be secured.
F. Authentic Instruments
38 Authentic instruments do not constitute judgments within the meaning of the Convention. They are therefore not capable of recognition under the Convention, but are only amenable to a declaration of enforceability under Article 57 of the Lugano Convention.
G. Decisions on costs
39 It already follows from the wording of Art. 32 Lugano Convention that decisions which determine the costs of proceedings are recognizable and enforceable under the Convention. This is justified insofar as the allocation of costs is often decided in the proceedings before the court. However, it is a prerequisite that the relevant proceedings are covered by the substantive scope of the Convention.
The author would like to thank Natalie Lisik for her critical review.
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