Enforcement of English judgments in Switzerland post-Brexit

MLL successfully represented a Swiss company in appeal proceedings before the Supreme Court of the Canton of Zurich that shed some light on the enforcement of English judgments in Switzerland post-Brexit. The MLL team consisted of Urs Boller and Sandra Blumer.

In 2018, the English High Court of Justice rendered a decision in favour of an English company, ordering a Swiss client of MLL to pay an amount of GBP 4.3 million. In February 2020, the judgment creditor seized a first-instance court of the Canton of Zurich, which based on the Lugano Convention declared the English judgment enforceable in Switzerland and issued a freezing order against the Swiss company.

The Swiss company appealed the first-instance judgment and raised the question of whether the Lugano Convention still applies when it comes to recognition and enforcement of English judgments in Switzerland, given that the United Kingdom had left the European Union („Brexit“) as of 31 January 2020.

The Supreme Court of the Canton of Zurich first recalled that the parties to the Lugano Convention are the European Union, Switzerland, Iceland, Denmark and Norway. It then held that the Brexit Withdrawal Agreement signed on 24 January 2020 provides for a transition period until 31 December 2020, during which the law of the EU shall continue to apply to the United Kingdom and shall have the same effects as those which it produces within the EU and its member states. Furthermore, according to the Brexit Withdrawal Agreement, during the transition period the UK is bound by international treaties concluded by the EU, including the Lugano Convention. The Supreme Court of the Canton of Zurich thus concluded that until 31 December 2020 the UK shall be treated as a state bound by the Lugano Convention. It therefore confirmed that the recognition and enforcement of the English judgment is subject to the Lugano Convention.

In the end, however, the Supreme Court of the Canton of Zurich granted the appeal nonetheless. Although the English company claimed that it had submitted the English judgment in the form of a certified copy issued by the English High Court of Justice, the document actually submitted was an ordinary, uncertified copy. The Court held that this does not meet the formal requirements of the Lugano Convention.

The decision can still be appealed with the Swiss Supreme Court.

Case reference: OGer ZH, judgment RV200011-O dated 15 September 2020