In its decision of 12 August 2024, the Swiss Federal Supreme Court (“SFSC”) deliberated on the enforcement of an order for payment by a court of a Lugano Convention (“LC”) member state in Switzerland (case no. 5A/94/2024 [in French], intended for official publication).
Factual background
A court in Bologna, Italy, issued an order for payment (so-called “decreto ingiuntivo telematico provvisoriamente esecutive”, which is a “Mahnbescheid” or “Zahlungsbefehl” in German) ordering the respondent in the Italian proceedings (and subsequently the claimant before the Cantonal High Court of Geneva and appellant before the SFSC proceedings) to pay a total of EUR 16,713,196.81 in the underlying dispute. This order for payment was appealed in Italy. The appeal was rejected by the competent courts in Bologna after conducting adversarial proceedings.
Subsequently, both exequatur and attachment proceedings were initiated before the District Court of Geneva. As a result, the District Court of Geneva seized respondent’s assets in Switzerland and declared the “decreto ingiuntivo” enforceable in Switzerland.
A dispute arose about the enforceability of the Italian “decreto ingiuntivo” in Switzerland. The Cantonal High Court of Geneva (case no. C/15325/2023 [in French]) upheld the District Court’s decision, as it considered the Italian “decreto ingiuntivo” enforceable. The respondent then filed an appeal against this decision with the SFSC, arguing that the Italian order for payment was issued ex parte and thus is not an enforceable judgment according to art. 32 LC.
Adversarial proceedings must be held prior to the enforcement of an order for payment
The SFSC reasoned that the Swiss courts at both the first and second instances adhered to the exequatur procedure as stipulated by the LC. In alignment with prevailing Swiss and European jurisprudence and doctrine, the SFSC emphasised that adversarial proceedings are a mandatory prerequisite for the recognition and enforcement of a judgment or provisional measure under art. 32 LC, even if the decision is not yet final.
In the case at stake, the respondent was able to fully exercise his right to be heard during the Italian proceedings. Following the rejection of the respondent’s appeal by the competent courts in Bologna, exequatur and attachment proceedings were initiated in Geneva. Under these circumstances, the Italian “decreto ingiuntivo” qualifies as a “judgment” within the meaning of art. 32 LC, making it eligible for recognition and enforcement in Switzerland. Consequently, there were no grounds to challenge the considerations of the Cantonal High Court of Geneva, and its decision was fully upheld by the SFSC.
Concluding remarks regarding the enforcement of (foreign) orders for payment
The SFSC addressed the enforceability of (Italian) orders for payment in Switzerland on multiple occasions. Notably, it has consistently rejected the enforceability of such orders due to the absence of adversarial proceedings (cf. for instance decision of SFSC 139 III 232[234] [in Italian]). This principle equally applies if the adversarial proceedings are still ongoing when enforcement proceedings were initiated.
Considering this precedent, the SFSC reaffirmed the prevailing legal doctrine and jurisprudence, underscoring that adversarial proceedings are an indispensable prerequisite for the enforcement of payment orders or other provisional measures in Switzerland.
