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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 1 FADP
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- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 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 recognition
- II. Scope of Application and Cognition of the Recognition Court
- III. The Principles of the Recognition System of the Lugano Convention
- IV. Legal consequences of recognition
- Bibliography
I. Subject matter and concept of recognition
1 As a result of the principle of territoriality, judicial decisions, as acts of state sovereignty, have legal consequences exclusively in the state in which the judgment was given. In order for a decision to have legal consequences in another state, it must in principle be recognized. Recognition is an act of state sovereignty, whereby a foreign decision or certain legal consequences of the decision (in the case of partial recognition) are permitted for the domestic legal system. Accordingly, with recognition, the decision is accepted as binding and is no longer called into question. The consequence of recognition is that the foreign decision is accorded certain legal consequences in the domestic legal system. If, on the other hand, the decision is not recognised, the decision has no legal consequences in the state in which it is recognised.
2 Recognition must be distinguished from the declaration of enforceability. With the declaration of enforceability, the judgment is admitted for enforcement in the state of enforcement (cf. Art. 38 (1) Lugano Convention) and thus becomes enforceable. The declaration of enforceability can thus be regarded as an actual intermediate procedure between recognition and enforcement. The principle applies that the declaration of enforceability presupposes prior recognition. In the scope of application of the Convention, however, this principle must be relativized insofar as the grounds for refusal of recognition pursuant to Art. 34 et seq. Lugano are only to be examined if the opposing party to enforcement lodges an appeal against the declaration of enforceability already granted (cf. Art. 43 (1) Lugano in conjunction with Art. 45 (1) Lugano). Accordingly, a declaration of enforceability does not require that recognition has already been granted. Rather, it is presumed that the decision to be enforced fulfils the requirements for recognition and has an enforceable (but not necessarily recognizable) content.
3 There is no general obligation under international law to recognize foreign judgments. However, such an obligation is provided for by the provisions of Art. 32 - 37 Lugano Convention. These are the actual core provisions of the Convention. The provisions regulate the recognition of the decision of a Contracting State (so-called State of origin or State of judgment) in another Contracting State to the Lugano Convention (so-called State of recognition). As a result, treaty decisions claim validity in the entire territory of the Convention. The provisions of the Convention supersede the national law of the Contracting States in their scope of application. National law may therefore only be invoked to the extent that the Convention itself refers to it. The regulatory content of Art. 32 ff. Lugano Convention is, however, limited. They exclusively regulate the recognition procedure and the conditions for recognition.
II. Scope of Application and Cognition of the Recognition Court
4 The scope of application of the recognition provisions is limited in a territorial-personal sense to judgments of Contracting States (Art. 32 Lugano Convention). Judgments of a State that is not a party to the Convention are not covered by the scope of application (with the exception of their blocking effect pursuant to Art. 34 para. 4 Lugano Convention). Such judgments are to be recognized according to the autonomous national law of the recognizing state (i.e. in Switzerland according to the IPRG or another applicable international law treaty). It is irrelevant, however, on which basis of jurisdiction the treaty state court based its jurisdiction. Accordingly, judgments rendered on the basis of an exorbitant jurisdiction under Art. 3 para. 2 or Art. 4 para. 2 Lugano Convention may also be recognized and declared enforceable under the provisions of the Convention. Similarly, it is not a prerequisite that the dispute underlying the decision to be recognized had an international character. Accordingly, judgments on purely domestic matters are also eligible for recognition.
5 From a substantive point of view, it is also a prerequisite that the decision to be recognized has been rendered in a legal dispute which is covered by the substantive scope of the Convention (Art. 1 Lugano Convention). It must therefore be a decision in a civil and commercial matter (Art. 1 para. 1 Lugano Convention), whereby none of the grounds for exclusion according to Art. 1 para. 2 Lugano Convention may be present.
6 Finally, special conventions governing jurisdiction, recognition or enforcement, to which all or some of the Contracting States are parties, also take precedence over the Convention (Art. 67 Lugano Convention).
7 The recognition court decides independently on the application of the recognition and enforcement provisions of the Convention. In so doing, however, the recognizing court is bound by the factual findings of the court of first instance in accordance with Art. 35, para. 2 Lugano Convention.
III. The Principles of the Recognition System of the Lugano Convention
A. Free movement of judgements
8 The parallel system to the Lugano system (the Brussels I system) pursues as its main purpose the free movement of judgments of Member States. This is to guarantee effective cross-border legal protection. All provisions of the Brussels I Regulation are tailored to this purpose. Thus, among other things, the standardization of the law of jurisdiction should, as far as possible, prevent objections to recognition on the grounds of lack of jurisdiction of the court of origin. The Lugano Convention similarly intends to facilitate the mutual recognition of treaty-based judgments. Accordingly, the promotion of the free movement of judgments of the Contracting States ("free movement of judgments") is the main purpose of both systems.
9 The free movement of judgments was developed within the European Community as a regulatory concept in connection with the free movement of goods and is based on the country of origin principle under Union law. The country of origin principle found its origin in the recognition of administrative acts in the admission of goods within the European Community. In application of this principle, goods and services admitted in the Member State of origin were treated in the receiving state as domestic products and services. With the principle of mutual recognition of member state decisions in the Brussels I system, this principle was transferred to procedural law. In this respect, a foreign member state judgment should be treated in the same way as a domestic judgment. Consequently, a Member State judgment should also be recognized in such a way that a review is only carried out to enforce fundamental interests of the recognizing state.
10 To achieve this goal, obstacles to recognition have been continuously abolished and the recognition procedure simplified since the conclusion of the original Brussels Convention. The same is true of the parallel Lugano system. The provisions of the Convention must therefore be interpreted in such a way as to minimize obstacles to the cross-border recognition of treaty-based judgments within the Convention. Consequently, the concept of judgment under Art. 32 Lugano Convention is to be understood comprehensively. Furthermore, judgments given in a Contracting State are to be recognized automatically and "without any special procedure" in another Contracting State (Art. 33 (1) Lugano Convention). Finally, the grounds for non-recognition in the Convention are also to be interpreted narrowly and limited to what is strictly necessary to achieve their objective. Based on this principle, a favorability principle is sometimes assumed for the Convention, according to which national recognition law is still applicable if it contains provisions that are more favorable to recognition. However, the conclusive character of the recognition rules of the Convention speaks against such a principle of favorability. Moreover, the recognition rules also serve to protect the defendant. This protection threatens to be undermined if more recognition-friendly national law could be applied.
B. Principle of Confidence
11 In order to guarantee such freedom of judgment, a special degree of mutual trust in the administration of justice of the Contracting States is required. Only such trust justifies the most far-reaching waiver of judicial review in the recognition of treaty decisions. The Convention's freedom of judgment is thus based on the principle of mutual trust (the so-called principle of trust). As a direct consequence of the principle of legitimate expectations, treaty-state decisions cannot in principle be reviewed by another treaty state. Consequently, the principle of mutual trust means that each Contracting State court regards the decisions of other Contracting State courts as equivalent to its own decisions. This principle is not explicitly stated anywhere in the Convention, which is why it is sometimes argued that Swiss courts are not bound by it. It should be noted, however, that numerous provisions of the Convention are based on the principle of trust. For example, the principle of confidence forms the basis for the prohibition of indirect examination of jurisdiction under Art. 35(3) Lugano Convention. Likewise, the prohibition of substantive review (prohibition of révision au fond, Art. 36 LugÜ) is based on this principle. Accordingly, it can be assumed that Swiss courts must also observe the principle of trust.
C. Effective Protection of Defendants and Prevention of Inconsistent Judgments
12 Unrestrained free movement of judgments also entails risks. For example, in the absence of the possibility of review of the decision by the recognizing state, the protection of party rights (especially of the defendant) may be undermined. Furthermore, sovereign interests of the recognizing state may also be jeopardized. In order to prevent such abuses, the Convention provides, on the one hand, for obstacles to recognition which are intended to ensure effective protection of the defendant. These ensure, among other things, that the defendant has been granted the right to be heard (Art. 34 No. 2 Lugano Convention) as well as that the protective jurisdictions contained in the Convention for policyholders pursuant to Art. 8 et seq. Lugano Convention and for consumers pursuant to Art. 15 et seq. Lugano Convention are complied with (Art. 35 para. 1 Lugano Convention). On the other hand, both the lis pendens bar pursuant to Art. 27 Lugano Convention and the grounds for refusal of recognition pursuant to Art. 34 nos. 3 and 4 Lugano Convention attempt to prevent mutually incompatible decisions. On the one hand, the recognition of such conflicting decisions would be unreasonable for the parties, since it would be unclear for them which decision they would have to follow in their conduct. On the other hand, conflicting rulings would also damage the reputation of the judicial institutions, reducing confidence in the uniformity of the judiciary. In order to prevent such a collision, the lis pendens bar already takes effect at the level of the cognizance proceedings. Accordingly, the Contracting State court subsequently seized must stay its proceedings if proceedings concerning the same claim are pending before different Contracting State courts (Art. 27 (1) Lugano Convention). If, despite this lis pendens bar, irreconcilable judgments are rendered, the grounds for refusal of recognition pursuant to Art. 34 No. 3 and No. 4 Lugano Convention apply at the recognition level. According to these provisions, a judgment will not be recognized if it is incompatible either with a judgment in the recognizing state (no. 3) or with an earlier judgment from another state (no. 4).
IV. Legal consequences of recognition
13 While the Convention sets out in detail the conditions and procedure for recognition, it contains no explicit provision on the legal consequences of recognition. This ultimately raises two questions: First, under what law are the legal consequences of a recognized judgment to be determined? Second, which legal consequences are amenable to recognition at all and thus eligible for recognition?
A. Determination of the legal consequences of recognition
1. General Theories on the Consequences of Recognition
14 In doctrine it is disputed according to which legal basis the legal consequences of a recognition are determined. According to the theory of extension of effect advocated by the majority of scholars, the same legal consequences are to be accorded to the recognized decision in the state of recognition as are accorded to it in the state of origin. Accordingly, based on this theory, the effects of the decision are to be determined on the basis of the law of the state of origin. The opposite pole to the theory of extension of effect is the so-called theory of equal effect. According to this theory, the same effects are attributed to the recognized decision as to a comparable judgment in the state of recognition. Accordingly, the legal consequences of the decision would have to be determined according to the lex fori of the state of recognition. Finally, the (restrictive) accumulation theory assumes that, on the one hand, the decision in the state of recognition should not have more effects than it has in the state of origin. On the other hand, the effects of the decision must not go further than those of similar judgments in the state of recognition. Thus, the accumulation theory can be understood as the actual "intersection" of the two "circles" of the theory of extension of effects and the theory of equal effects.
2. legal consequences of recognition within the Lugano Convention
a. Effect extension theory
15 The official reports on the Brussels Convention seem to be in favor of the extension of effects theory. The Jenard Report, for example, states that recognition "attaches to judgments the effects which they have in the State in the territory of which they were given." Similar reasoning can be found in the Evrigenis & Kerameus Report.
16 The ECJ also appears to favor the extension of effects theory in its Hoffmann jurisprudence. In it, the Court adopted the above-mentioned passage from the Jenard Report and emphasized that the Convention was intended to establish, as far as possible, the free movement of judgments. However, the Court qualified this statement by stating that a recognized judgment must (only) in principle produce the same effects in the recognizing state as in the state of origin. The phrase "in principle" implies that there are exceptions to the principle of the extension of effects. In later rulings, the ECJ upheld this relativization. In doing so, it specified that a judgment is not to be accorded legal effects upon its enforcement which it does not have in the Member State of origin or which a judgment of the same kind rendered directly in the State of enforcement does not produce. This case law is partly understood in the doctrine as an endorsement of the accumulation theory.
17 In the aforementioned case law, however, the ECJ clearly differentiates between the legal consequences of recognition and those of a declaration of enforceability. The aforementioned limitation of effects refers exclusively to the legal consequences of a declaration of enforceability. There are good reasons for this. In contrast to recognition, a declaration of enforceability is not intended to give a foreign judgment the same effects as in the country of judgment. Rather, the enforceability declaration confers on the foreign judgment the same effect as an enforceable domestic judgment. Accordingly, the enforceability declaration puts the foreign judgment on a par with a domestic judgment. This also follows logically from the fact that the subsequent enforcement is governed by the domestic law (lex fori) of the executing state. Accordingly, the relativization made cannot be interpreted as an endorsement of the accumulation theory in recognition.
18 Rather, it can be inferred from the case law in Hoffmann that with its relativization the Court merely wanted to clarify the differentiation between the recognition effect and the enforceability declaration effect. Thus, the ECJ was asked whether the obligation of recognition under Art. 26 of the Brussels Convention (Art. 33 of the Lugano Convention) obliges to give a judgment of a Contracting State the same effect as it has in the State of origin and whether it should therefore also be enforced in the same cases as there. The Court reformulated this question and assessed whether a judgment recognized under Article 26 of the Brussels Convention must in principle have the same effect in the requested State as in the State of origin. With this reformulation, the ECJ implies that it should first be clarified in principle whether a judgment has the same effects in the state of recognition as in the state of origin. In contrast, the Court only wanted to answer the question of whether the decision must therefore also be enforced under the same conditions as in the state of origin in a second step. This also follows from the further reasoning of the judgment, in which the Court finally states that the decision does not have to be enforced if enforcement is not possible under the law of the state of enforcement.
19 Overall, therefore, the ECJ follows the theory of extension of effect for the legal consequences of recognition. However, there is an exception for the effect of enforceability. On the one hand, this effect is only conferred on the decision by the recognizing state when it is declared enforceable (Art. 38(1) Lugano Convention). On the other hand, its effect is governed by the theory of cumulation, whereby the decision is not accorded any effects with the declaration of enforceability that a decision issued in the executing state would not produce.
b. Case Law of the Federal Supreme Court
20 In its case law, the Federal Supreme Court also seems to follow the extension of effects theory. Admittedly, the Federal Supreme Court held in BGE 135 III 670 that the recognition of a foreign judgment would, in principle, have the same effect as a domestic judgment. In its later case law, however, the Federal Supreme Court clarified, based on the Hoffmann case law, that a judgment recognized under the Lugano Convention must in principle have the same effect in the requested state as in the state of judgment.
c. Autonomous concept of res judicata
21 It is unclear to what extent the ECJ assumes an autonomous understanding of res judicata as a further exception to the theory of extension of effect. The ECJ provided the first approaches for such an understanding in the De Wolf/Cox judgment. The Court considered it incompatible with the meaning of the recognition provisions to reopen proceedings between the same parties on a subject matter of a dispute already adjudicated by a court of a Contracting State. Otherwise, the second court could contradict an earlier treaty state judgment and thus violate the recognition obligation. Although the ECJ did not yet provide an actual autonomous definition of res judicata in this decision, it did justify the bar on res judicata on the basis of a European autonomous purpose (namely the prevention of irreconcilable judgments). Accordingly, the Court considered it necessary to provide for a ne bis in idem defense in the context of European civil procedure law in the case of complete identity of the subject matter of the dispute.
22 The ECJ then advocated an autonomous scope of legal force in the Gothaer judgment. The decision concerned a trial judgment in which a Belgian court declared itself without jurisdiction due to the effectiveness of a choice-of-court agreement in favor of the courts of the contracting state Iceland. For the German court, which was subsequently seized of the case, the question arose as to whether it was also bound by the preliminary assessment of the validity of the choice-of-court agreement. The Court held that in Union law the concept of res judicata encompassed not only the operative part of the decision in question, but also its reasoning, insofar as it bore the operative part of the judgment and was therefore inseparable from it. Accordingly, such a procedural decision is binding both with regard to the decision on the lack of jurisdiction of the court made in the dispositive part of the judgment and with regard to the validity of the agreement on the place of jurisdiction established in the reasons for the judgment, which is supported by the dispositive part of the judgment. The Court of Justice thus formed an autonomous concept of res judicata, which covers both the main issue judged and any preliminary issues judged. The concrete scope of this concept of res judicata is, however, highly disputed in the doctrine. The scope of this concept of res judicata depends on whether the decision was due to the particularities of the individual case or whether its findings can be generalized.
23 At least prima vista, the ECJ seems to limit its finding to decisions in which a contracting state court declares itself without jurisdiction due to the effectiveness of a choice of court agreement in favor of another contracting state. This can also be seen from the fact that the Court continues to be guided by the principle of the extension of effect theory. The arguments used by the Court, on the other hand, can certainly be generalized. On the one hand, the Court based its reasoning mainly on Article 35 (3) aEuGVVO (Article 35 (3) LugÜ), according to which the jurisdiction of the sentencing state may not be reviewed in the recognition and enforcement of a treaty state decision. According to the Court of Justice, the examination of "intermediate results" would also be contrary to this prohibition, insofar as the result would be to call into question the decision of the Contracting State court. The prohibition of indirect examination of jurisdiction applies in principle to all treaty-state jurisdiction decisions, which is why this reasoning could be extended to such jurisdiction decisions in general. However, the ECJ justifies its autonomous concept of res judicata with the fact that the decision was based on the common jurisdiction rules of the aEuGVVO. At best, this could be seen as a limitation of the autonomous concept of res judicata to cases in which the decision was issued on the basis of a Convention rule on jurisdiction that applies uniformly in all member states.
24 However, as the ECJ also based its decision on the prohibition of review of the content of the judgment under Article 36 of the Brussels Convention (Article 36 of the Lugano Convention), it is at least questionable whether this understanding of res judicata is not at best even applicable to judgments on the merits. Possible indications for such a comprehensive scope of res judicata can be found in the discussion on a possible, autonomous European concept of the subject matter of a dispute. This is based on the case law of the Court of Justice on the scope of the lis pendens bar (Art. 27 (1) Lugano Convention). Here, the ECJ also assumes an autonomous scope of the lis pendens bar and focuses on whether the respective applications essentially concern the same issue (so-called core issue theory). In doing so, the Court seems to assume a blocking effect in particular if the assessment of the applications depends on the same preliminary question. Therefore, the lis pendens bar also includes both the main issue to be judged and the preliminary issue to be judged. Accordingly, it could be argued that the pendency bar and the autonomous concept of res judicata are based on the same concept of the subject matter of the dispute. However, it can be objected that an extension of res judicata to preliminary issues is a legal policy decision independent of the concept of the subject matter of the dispute. Thus, the concept of the subject matter of the dispute is decisive for the "broad effect" of res judicata, but not for its "deep effect". Accordingly, there is at least no compelling correlation between the scope of the subject matter of the dispute and the question of whether preliminary issues also participate in the binding force of res judicata.
25 A closer look at the case law of the ECJ also focuses less on a common concept of the subject matter of the dispute than on a common purpose. Thus, the Court seems to attach particular weight to the purpose of preventing irreconcilable decisions. To achieve this goal, the ECJ's case law assumes both a broad lis pendens bar and a comprehensive autonomous binding effect of res judicata. If the goal of preventing irreconcilable decisions is consistently followed, there are also good reasons for the Court to assume an international res judicata effect oriented to the core theory. Thus, as is well known, the grounds for refusal of recognition in Art. 34 Nos. 3 and 4 Lugano Convention provide that recognition may be refused if the judgment is "incompatible" with a domestic or earlier foreign judgment. Incompatibility is assumed if the judgments in question have mutually exclusive legal consequences. In principle, however, a judgment has legal consequences only to the extent that its findings become final at all. In this sense, the recognition of a decision which is deemed to be irreconcilable within the meaning of the case law of the ECJ on lis pendens can only be prevented if the preliminary issues judged also become res judicata. Otherwise, it would be possible for a party to re-litigate the same preliminary issue, not during the trial but after its end, which would also entail the risk of a divergent assessment and thus a decision incompatible with the earlier judgment. Nevertheless, it should not be assumed that the subject matter of the dispute is identical. Thus, the blocking effect at the level of lis pendens according to Art. 27 Lugano Convention should have a broader effect than at the level of recognition according to Art. 34 No. 3 and 4 Lugano Convention. This results from the fact that during proceedings it is still unclear how the court will decide. Accordingly, there is only the risk of irreconcilable decisions. At the time of recognition, on the other hand, it is certain what the court has decided, which is why it can be conclusively assessed whether there is any conflict between the decisions. This allows the concept of irreconcilable decision to be drawn more narrowly at the level of recognition than at the level of lis pendens.
26 It is questionable, however, to what extent the ECJ is willing to pursue this purpose at the expense of other considerations of expediency. Certain limitations result at least from the previous case law of the ECJ, which explicitly prohibits the review of the jurisdiction of a court by the court of another contracting state. This case law would hardly be compatible with binding the court declared competent to the decision of the court of origin. Rather, the court declared to have jurisdiction must be able to rule independently on its own jurisdiction. On the other hand, restrictions arise from the right to the guarantee of justice as well as the right to a fair trial and the associated right to be heard in accordance with Art. 6 (1) ECHR. All contracting states are obliged to respect both the Lugano Convention and the ECHR, whereby from the Swiss perspective, in the event of a conflict with the ECHR, the relevant case law of the ECJ should not be taken into account. Accordingly, in order to preserve the right to be heard, it must at least be ensured that the parties were able to fully express their views on the relevant preliminary question.
27 Overall, based on the Gotha case law, it can (still) be assumed that the content of autonomous res judicata is limited to jurisdiction decisions on choice of court agreements. However, the ECJ seems to be generally tending in favor of a more comprehensive binding force of law. Admittedly, it must be taken into account that the ECJ has so far decided rather on a case-by-case basis in the aforementioned case law, which is why a generalization of these rulings can only be assumed with caution. Nevertheless, it is clear from the case law that the ECJ attaches great importance to the prevention of irreconcilable rulings and, to this end, is also prepared to restrain national legal understandings in favor of a uniform autonomous regulation.
B. Recognizable Legal Consequences
28 In general, all effects of judgments under procedural law are considered to be recognizable. Accordingly, according to the general rule, substantive res judicata, the formative effect, the effect of notice of dispute and the effect of intervention are deemed to be capable of recognition. These effects are to be distinguished from the non-recognizable effects of the substantive judgment. These are not caused by the decision itself, but only by a norm of substantive law (in particular the effect of the facts).
1. Substantive legal force
29 Material res judicata is probably the most important effect of a judgment that must be recognized. According to Swiss law, substantive legal force means that a judgment that is formally final is decisive in any subsequent proceedings between the same parties. On the one hand, it has a blocking effect, which in principle prohibits any court in subsequent proceedings from intervening in proceedings on the same subject matter and between the same parties (Art. 59 para. 2 lit. e CCP; ne bis in idem). On the other hand, substantive res judicata has a binding effect. According to this, the court in later proceedings is bound by the content of the subject matter of the earlier proceedings. Thus, in subsequent proceedings, the court cannot contradict the subject matter of the dispute that has already been adjudicated. Therefore, if the adjudicated subject matter of the dispute arises as a preliminary question in the subsequent proceedings, the court must base its own judgment on the corresponding decision of the previous proceedings as binding. Finally, substantive res judicata has a preclusive effect. Accordingly, substantive res judicata excludes attacks on all legally relevant facts that already existed at the time of the judgment, provided that they could have been introduced into the proceedings by the parties with reasonable diligence, but were not introduced. Such a fact can therefore not change the relevance of a judgment, even though it was not taken into account in the final decision. Accordingly, a judgment includes all facts that are normatively attributable to the subject matter of the dispute, irrespective of whether they were actually available to the adjudicating court for assessment. Under Swiss law, the scope of substantive legal force is determined objectively on the basis of the subject matter of the dispute, which consists of the legal claim and the facts of life. From a subjective point of view, res judicata is in principle only binding on the parties to the proceedings and their legal successors.
30 It must be borne in mind that there are significant differences between the individual legal systems of the Contracting States with regard to the scope and legal nature of res judicata. If - as is the case in the mainstream - the theory of extension of effect is followed, the scope of res judicata is determined on the basis of the law of the state of origin. If, on the other hand, the Gothaer jurisprudence of the ECJ recognizes an autonomous binding effect of res judicata, then within its scope of application both the main issue judged (according to the Swiss understanding, the subject matter of the dispute judged) and any preliminary issues become res judicata.
2. Effect on the form of the decision
31 Rulings on the creation, annulment or amendment of a right have a formative effect. In contrast to judgments on actions for performance or declaratory relief, which merely enforce a legal consequence that already exists outside the proceedings, a legal consequence that did not previously exist comes into being with a judgment on the form of an action. Such judgments therefore bring about the change in the substantive or procedural legal situation requested by the plaintiff. Thus, the effect of the judgment is the change in the substantive or procedural law that occurs when the judgment becomes final. The effect of the judgment is recognizable under the Convention irrespective of whether it qualifies as a procedural or substantive effect under the law of the State of origin. The scope of the formative effect is determined by the lex causae of the State of origin.
3. Intervention effect and effect of notice of dispute
32 The intervention effect presupposes that a third party intervenes in the proceedings in support of a party to the proceedings because it has its own legal interest in the success of the proceedings of the party it supports. The judgment on the dispute between the parties to the proceedings has a binding effect in subsequent proceedings between the supported party and the intervening party. In contrast to the intervening effect, in the case of the intervening effect the initiative to participate in the proceedings does not come from the intervening party but from a party to the proceedings. Accordingly, a litigant (proclaimed party) may request a third party (proclaimed party) to participate in the litigation if it believes that it has a claim against the proclaimed party if it is unsuccessful. If the proclaimed party participates in the proceedings, it shall have the status of an intervenor. The recognizability of both the intervention and the proclamation effect under the Convention follows directly from Art. II, para. 3, Protocol 1 Lugano Convention.
4. Effect of the facts
33 However, the factual effect is not capable of recognition. The effect is that substantive law attaches legal consequences to the existence of a judgment. It therefore represents a legal change that occurs as a result of the judgment (e.g. the start of a new limitation period under Art. 137 para. 2 CO). Similar to the effect on the form of the judgment, the effect on the facts is also effected by the substantive law. The difference, however, is that the decision on the form of the act is aimed at the effect on the form of the act. In contrast, the effect of the facts is neither the subject of the legal claim nor is it pronounced by the court in the judgment. Rather, the effect of the facts is automatically ordered by the substantive law. Accordingly, the lex causae also determines the question of which factual effects a particular foreign judgment produces. Thus, in accordance with Oberhammer, the decisive factor in assessing whether an effect is capable of being recognized should be whether the effect to be recognized was bindingly pronounced in the decision to be recognized. It is therefore essential that the legal consequence to be recognized is ordered by the judgment itself. If, on the other hand, the legal consequence occurs merely reflexively on the basis of a norm of substantive law, the legal consequence cannot be recognized. Similarly, the enforceability of a judgment is not recognizable. Under the Convention, the effect of enforceability is conferred originally by the executing state by means of a declaration of enforceability (Article 38(1) Lugano Convention).
34 However, judgment effects that are unknown in the recognizing state may also be recognized. Thus, French guarantee or intervention judgments as well as Irish mareva or freezing injunctions are also recognizable in Switzerland.
C. Procedural assertion of the effects of the decision
35 Finally, it is disputed whether the procedural assertion of the effects of the decision (e.g. whether res judicata is to be taken into account ex officio or only upon objection) is governed by the law of the state of origin or the state of recognition. According to the majority, this is determined by the lex fori of the state of recognition. If the theory of the extension of effect is followed consistently, the legal effect in the state of recognition should not be different from that in the state of origin. Accordingly, the question of administrative consideration of res judicata should also be assessed on the basis of the law of the State of origin.
The author would like to thank attorney Moritz B. Kocher, LL.M. for his critical review and comments.
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