3/23/12 8:22 PM Possible Enforcement of Worldwide Freezing Orders in Switzerland | Kluwer Arbitration Blog Page 1 of 3 http://kluwerarbitrationblog.com/blog/2012/03/23/possible-enforcement-of-worldwide-freezing-orders-in-switzerland/ Browse Options Enter your Email to subscribe Previous Post Hold on to your seats! A settled test for the proper law of arbitration clauses? Next Post Canadian Supreme Court Sends Dispute to Arbitration Despite the Filing of a Defence in Court Litigation 23 MAR 2012 Possible Enforcement of Worldwide Freezing Orders in Switzerland By Matthias Scherer , Lalive By Matthias Scherer and Simone Nadelhofer , LALIVE, Geneva and Zurich The Swiss Federal Supreme Court recently published a decision rendered last addressing the enforceability of an English Worldwide Freezing Order (“WFO”) in Switzerland. Of particular interest was the question whether a party can apply for a mere declaration of enforceability without actually seeking to enforce the WFO against specific assets (ATF 4A_366/2011, decision of 31 October 2011). The decision in German can be downloaded on http://jumpcgi.bger.ch/cgi-bin/JumpCGI? id=31.10.2011_4A_366/2011 . A WFO, a preliminary injunction preventing a defendant from disposing of assets pending the resolution of the underlying substantive (arbitration or court) proceedings, has been described as one of the “nuclear weapons” of commercial litigation and arbitration, such is their effect on litigation. In practice, WFOs are often sought before arbitration or litigation has been commenced and without prior notice to the defendant. In Switzerland, the enforcement of worldwide freezing injunctions is generally possible, provided that certain conditions are met. According to the established Swiss court practice, a WFO issued by a Court of a EU Member State is characterised as a provisional measure which may, in principle, be declared enforceable based on Articles 25 et seq. of the Lugano Convention of 1988 (the “LC 1988”), provided that the underlying dispute concerns a civil and commercial matter in the sense of the LC 1988. The LC 1988 also applies to provisional measures issued by a State court in support of arbitration proceedings (EuGH 17.11.1998, Rs. C-391/95, Van Uden Maritime BV, para. 33). According to the Denilauer precedent of the European Court of Justice, an ex parte interim order may be enforced under the LC 1988 to the extent the defendant has been granted the right to be heard in the underlying proceedings prior to the application for recognition and enforcement in Switzerland. Therefore, a WFO confirmed pursuant to an inter partes hearing would, in principle, be enforceable in Switzerland, subject to satisfying certain conditions. Even ex parte orders may be enforceable, if the defendant has been given sufficient notice of the order. This interpretation is still valid under Article 32 of the revised Lugano Convention of 2007 (the “LC 2007”), which corresponds to Article 25 LC 1988. Roger Alford (Editor) Notre Dame Law School Posts Lisa Bench Nieuwveld Conway & Partners Posts Gary Born Wilmer Cutler Pickering Hale and Dorr LLP Posts Anthony Charlton FTI Forensic and Litigation Consulting Posts Justin D'Agostino Herbert Smith LLP Posts Matthew Gearing Allen & Overy LLP Posts J. Martin Hunter Essex Court Chambers Posts Jean E. Kalicki Arnold & Porter LLP Posts Michael McIlwrath General Electric Company Posts Andrea Menaker White & Case LLP Posts Annalise Nelson Posts Andrew Newcombe CONTRIBUTORS Karel Daele The Energy Charter. The Notion of Investor. by Crina Baltag € 150 The 33rd America's Cup Judicial and Arbitral Decisions by Henry Peter, Hamish Ross, Graham McKenzie € 125 Yearbook Commercial Arbitration. Volume XXXVI. 2011 by Albert Jan van den Berg € 255 Confidentiality in International Commercial Arbitration by Ileana Smeureanu € 145 AUTHOR SPOTLIGHT Challenge and Disqualification of Arbitrators in International Arbitration RECENT COMMENTS Farhad Najafov on Anti-Arbitration: Get a job, kid! Poolsharp on Sports Arbitration and Due Process Larry Hinders on Route 66: Diverting the Italian Torpedo tope on HKIAC Administered Arbitration: New Rules for the New Lunar Year Umer Akram Chaudhry on Constitutionalising Investor Rights RSS FEEDS Article Summary Feed Full Article Feed Kluwer Arbitration Blog 2011 CPR Institute Award Winner – Outstanding Electronic Media Related Sites by keyword Search
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3/23/12 8:22 PMPossible Enforcement of Worldwide Freezing Orders in Switzerland | Kluwer Arbitration Blog
Page 1 of 3http://kluwerarbitrationblog.com/blog/2012/03/23/possible-enforcement-of-worldwide-freezing-orders-in-switzerland/
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23 MAR 2012
Possible Enforcement of Worldwide FreezingOrders in SwitzerlandBy Matthias Scherer, Lalive
By Matthias Scherer and Simone Nadelhofer, LALIVE, Geneva andZurich
The Swiss Federal Supreme Court recently published a decisionrendered last addressing the enforceability of an English WorldwideFreezing Order (“WFO”) in Switzerland. Of particular interest wasthe question whether a party can apply for a mere declaration ofenforceability without actually seeking to enforce the WFO againstspecific assets (ATF 4A_366/2011, decision of 31 October 2011). Thedecision in German can be downloaded onhttp://jumpcgi.bger.ch/cgi-bin/JumpCGI?id=31.10.2011_4A_366/2011.
A WFO, a preliminary injunction preventing a defendant fromdisposing of assets pending the resolution of the underlyingsubstantive (arbitration or court) proceedings, has been described asone of the “nuclear weapons” of commercial litigation andarbitration, such is their effect on litigation. In practice, WFOs areoften sought before arbitration or litigation has been commencedand without prior notice to the defendant.
In Switzerland, the enforcement of worldwide freezing injunctions isgenerally possible, provided that certain conditions are met.According to the established Swiss court practice, a WFO issued by aCourt of a EU Member State is characterised as a provisional measurewhich may, in principle, be declared enforceable based on Articles25 et seq. of the Lugano Convention of 1988 (the “LC 1988”),provided that the underlying dispute concerns a civil and commercialmatter in the sense of the LC 1988. The LC 1988 also applies toprovisional measures issued by a State court in support of arbitrationproceedings (EuGH 17.11.1998, Rs. C-391/95, Van Uden Maritime
BV, para. 33). According to the Denilauer precedent of the EuropeanCourt of Justice, an ex parte interim order may be enforced underthe LC 1988 to the extent the defendant has been granted the rightto be heard in the underlying proceedings prior to the application forrecognition and enforcement in Switzerland. Therefore, a WFOconfirmed pursuant to an inter partes hearing would, in principle, beenforceable in Switzerland, subject to satisfying certain conditions.Even ex parte orders may be enforceable, if the defendant has beengiven sufficient notice of the order. This interpretation is still validunder Article 32 of the revised Lugano Convention of 2007 (the “LC2007”), which corresponds to Article 25 LC 1988.
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3/23/12 8:22 PMPossible Enforcement of Worldwide Freezing Orders in Switzerland | Kluwer Arbitration Blog
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In the recently published case, the Supreme Court had to decide onan appeal against a decision of the Zurich Appeal Court. Initially, theclaimants (thirty corporations) had requested the Zurich DistrictCourt (the Court of first instance) on 20 December 2010 to (i)declare a WFO of the High Court of Justice, Queen’s Bench Division,Commercial Court of London dated 24 November 2010 enforceableand (ii) to order protective measures against the defendant and abank in Switzerland (D) where the defendant held an account.Invoking Art. 39(2) of LC 1988, the claimants tried in particular tolimit the defendant’s rights to dispose of his funds held on theaccounts with bank D. In its decision of 22 December 2010, theZurich District Court rejected both requests. The claimants appealedagainst this decision before the Zurich Appeal Court, which inessence rejected the appeal and confirmed the decision of theZurich District Court.
It was undisputed that the claimants’ requests had to be decided onthe basis of the old Lugano Convention of 1988 (the “LC 1988 ”) asthe WFO in question was issued by the English Court before the entryinto force of the LC 2007 in Switzerland on 1 January 2011. Againstthis background, the Court of first instance held that a WFO can, inprinciple, be declared enforceable upon request and aftersubmission of the required documents, provided that (i) the decisionis enforceable in the State of origin, (ii) the decision has beennotified to the defendant and (iii) there are no grounds for refusalaccording to Articles 27 and 28 LC 1998.
The Zurich Appeal Court had requested an additional condition to bemet: The claimant had to show a legitimate interest in obtaining adeclaration of enforceability of the WFO in Switzerland. Indeed,under Swiss domestic procedural law, declaratory relief is oftensubject to the demonstration of an actual interest in such relief. Ifthe claimant could be compensated by monetary relief, theexistence of a legitimate interest in obtaining declaratory relief isoften denied. According to the Zurich Appeal Court, the claimantshad no legitimate interest in obtaining a declaratory order unlessthey applied for the actual enforcement of the WFO in Switzerland.The Zurich Appeal Court further raised a fact which in its view alsoshowed that the claimants had no legitimate interest in seeking adeclaration that the WFO was enforceable: Although the WFO wasnot legally binding on third parties on Swiss territory, banks inSwitzerland would usually comply voluntarily with a foreign freezingorder, at least for a certain period of time (assuming that the bankhas been informally notified of the WFO). The Zurich Appeal Courtthus concluded that the declaration of enforceability would (de
facto) not be of any additional use to the claimants.
The claimants then appealed to the Swiss Federal Supreme Court.The appeal was allowed. According to the Supreme Court, the LC1988 does not require that a party shows a legitimate interest inobtaining a declaration of enforceability of a freezing order.Furthermore, the (Swiss) bank’s voluntary compliance with a foreignfreezing order is no obstacle to the claimant’s right to have theorder declared enforceable. Indeed, once the claimant obtains sucha declaration, the foreign freezing order is treated as if it were aSwiss decision. The recognition of a foreign judgment thus results inits equal treatment with domestic judgments. The declaration ofenforceability by domestic courts further allows for a facilitatedenforcement procedure.
The Supreme Court considered that a party benefitting from anEnglish WFO has a legitimate interest in obtaining a declaration of
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3/23/12 8:22 PMPossible Enforcement of Worldwide Freezing Orders in Switzerland | Kluwer Arbitration Blog
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enforceability from a Swiss court. (This finding, while made underthe LC 1988, should equally apply under the LC 2007 (Articles 38 etseq.)). Consequently, the appeal was allowed and the matterremanded to the lower court, which was ordered to examinewhether the freezing injunction at hand was enforceable inSwitzerland per se. The lower court had not looked into thesubstance of the freezing order since it had concluded that theclaimants were in any event not entitled to a declaration ofenforceability.
The decision of the SFCS is of interest to arbitration practitionersand litigators alike, particularly as it confirms the assumption that aparty in the possession of a WFO has a legitimate interest inobtaining a declaration of enforceability from a Swiss court. Freezingorders have thus become a widespread tool. And much to theirdismay, Swiss banks remain a prime target for foreign and Swissinjunctions.
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