Recognition of foreign judgments in Switzerland

In Switzerland, a foreign court decision acquires legal effect only once it has been recognised and declared enforceable through the exequatur procedure. This preliminary step is indispensable before any enforcement measures may be undertaken, whether to recover a debt, seize assets, or obtain a definitive release. The Lugano Convention (CLug) regulates this mechanism in its Articles 38 and following. Within this framework, the Swiss judge does not reassess the merits of the case but confines the examination to verifying the authenticity of the foreign decision, its enforceability in the State of origin, and its conformity with the fundamental procedural guarantees recognised under Swiss law.

Documents to be produced: the certified copy and the certificate

Article 41 CLug provides that exequatur is granted once the formalities set out in Article 53 CLug are satisfied. The applicant must therefore submit a copy of the judgment that meets the requirements of authenticity. Swiss case law is consistent in holding that the original decision may be replaced by a certified copy but never by a simple photocopy, which is considered insufficient even in the absence of objection from the opposing party (ATF 5A_241/2009, c.2; ATF 5A_818/2014, c.3; ATF 4A_551/2020, c.2; Commentaire romand, Art. 53, para. 1).

When civil and commercial decisions are subject to ordinary recognition and enforcement proceedings, the applicant must in principle also enclose a certificate issued under Article 54 CLug by the authority of the State of origin. This certificate attests to the enforceability of the judgment and facilitates the Swiss court’s assessment. It is, however, not issued for certain categories of decisions, such as provisional measures rendered in non-adversarial proceedings or default judgments against defendants whose address is unknown and who are therefore unaware of the proceedings (CJEU, C-292/10).

The certificate: an instrument of evidence and not a mandatory requirement

Although the certificate substantially simplifies the recognition procedure, its absence does not automatically render the application inadmissible. Both Swiss doctrine and case law acknowledge that the certificate constitutes a preferred but not exclusive means of proof. Its function is to centralise essential information concerning the judgment, thereby sparing the applicant from producing multiple documents.

Nevertheless, other procedural avenues may be pursued to establish enforceability without reliance on the standard form. Article 55 paragraph 1 CLug expressly authorises the Swiss court to (i) set a deadline for the production of the certificate, (ii) to accept equivalent documents, or (iii) to dispense with the certificate altogether where the documents submitted sufficiently demonstrate enforceability in the State of origin and the court considers itself adequately informed. This approach has been confirmed by Swiss and European case law (ATF 5A_177/2018, c. 3.1; RS 0.172.030.4, art 3-4) and by legal doctrine (CR LDIP/CL-Bücher, Art. 55 CL No. 3), which recognise that a certificate or even a stamp affixed to the judgment may validly attest to its enforceability.

However, the use of equivalent documents is subject to the requirement that the decision must not present any defects which are likely to undermine defence rights, particularly in the case of a judgment by default.

Conditions for the acceptance of equivalent documents

Where the certificate is absent, the court may rely on equivalent documents provided they establish three fundamental elements.

First, the authenticity of the judgment must be demonstrated, typically through a certified copy issued by the court registry or another competent authority, although subsequent certification such as an official stamp or administrative confirmation may suffice (5A_177/2018, c. 3.2; RS 0.172.030.4).

Second, the enforceability of the judgment in the State of origin must be clearly shown, whether by reference to the applicable law, the judgment itself, or a separate certificate. (ATF 127 III 186; 5A_646/2013). In accordance with case law (ATF 143 III 404), it is sufficient for the decision to be enforceable in the State of origin in order for the exequatur to be granted, regardless of whether the decision is final or has become res judicata. Thus, decisions that are provisionally enforceable or awaiting an appeal judgment may also be recognised, the enforceable nature being determined according to the rules of the State of origin (ATF 126 III 156; 5A_79/2008; ATF 143 III 404; Art. 38(1) CL).

Third, the judgment must not have been rendered under circumstances that undermine the rights of defence, particularly in default proceedings. In such cases, additional safeguards must demonstrate that the defendant was properly informed of the proceedings. A certificate may be considered equivalent only if it satisfies the requirements of the standard form and establishes the date of service, in the absence of such a date, the document cannot be accepted as equivalent (Commentaire romand, Art. 55, n. 4).

When these conditions are fulfilled, the production of a certificate does not provide any additional determining information, and the absence of the Article 54 certificate cannot justify refusal of exequatur by a Swiss judge

Perspectives

The Lugano Convention seeks to ensure the smooth circulation of judicial decisions among Contracting States while safeguarding the procedural guarantees necessary to uphold legal certainty. The exequatur procedure exemplifies this balance by subjecting foreign judgments to minimal but essential control, thereby avoiding excessive formalism. Article 54 CLug is an important instrument for establishing enforceability in the State of origin, but it is not indispensable where other documents provide sufficient assurance.

This flexibility enables creditors to pursue enforcement even in the temporary absence of the certificate, assuming that supporting documents are available, while debtors remain protected through mechanisms such as suspension, stay, or the provision of security.

The Convention thus demonstrates a preference for proportionate control rather than rigid formalism, fostering mutual trust among the courts of the Contracting States.

Looking ahead, the digitisation of judicial documents and the simplification of exchanges between authorities may lead to a reconsideration of the certificate’s role. Future developments could include systems of direct communication or even automatic recognition of certain judgments, thereby modernising the circulation of judicial decisions within the framework of the Lugano Convention.

Ambre AEBI, Emma COMTE, Alexia MOURATIDIS, Maëlis ORANGE, Alessia QUATTRONE