Switzerland: Recognition Of Ex Parte Interim Measures Under The Lugano Convention And Separate Interim Relief In Switzerland

Last Updated: 11 November 1997
I. Introduction

The purpose of this article is to provide information on some developments in Switzerland with regard to the recognition of foreign ex parte interim measures under the Lugano Convention, excluding the application of the Federal Act on Private International Law. In addition, this article will attempt to present an overview of independent ex parte interim measures in Switzerland.

II. Recognition of English Mareva Injunctions under the Lugano Convention

On 22 September 1995, the Sole Judge of the District Court of Zurich rendered a decision regarding the recognition of an English Mareva Injunction under the Lugano Convention. As far as we know, this award - which has not been reported in an official court reporter but in a Swiss law journal (see Daniel Stoll, Schweizerische Juristenzeitung, No. 6, 15 March 1996, p. 104) - is the first judgement on this issue in Switzerland.

The main holding of the Sole Judge's decision is that an English Mareva Injunction is basically a recognisable judgement in the sense of Article 25 of the Lugano Convention. A closer look at the underlying reasoning reveals that the Sole Judge has based the decision on the background of the circumstance that the defendants had requested an amendment of the original order from the English judge. The English judge granted this request (at least in part) in an additional order after having heard the defendants. The Swiss judgement does not, therefore, add anything to the debated issue of whether ex parte interim measures can be recognised in another Lugano Convention State.

The leading decision in this respect is the Denilauler vs Couchet Freres case, which was decided by the European Court of Justice on 25 May 1980. In this decision, the European Court of Justice, which was relying on the opinions of England and the general attorney as opposed to the opinions of Italy and the Commission, came to the conclusion that ex parte interim measures cannot be enforced in another Convention State under Article 25 of the Brussels Convention.

The Denilauler vs Couchet Freres decision has been the object of approval but also of important criticism. This, however, is not the place to analyse them, nor to go into the reasoning of the European Court of Justice in detail.

III. Separate Interim Relief in Switzerland based on Civil Proceedings

In international litigation, the plaintiff's primary interest is often to have a simultaneous "surprise effect" in different jurisdiction. This applies especially in fraud cases where the damaged party is trying to recover its losses. As long as the Denilauler vs. Couchet Freres ruling stands, plaintiffs seeking to obtain interim relief in Switzerland are best advised to file for independent relief (Article 24 Lugano Convention).

If one assumes that the Plaintiff has already received a world-wide Mareva Injunction in an ex parte proceeding in England which encompasses (1) the prohibition of disposal of assets, (2) the disclosure of information with regard to assets of the defendants, and (3) the entry and search of premises and vehicles on the premises with the purpose of seizing relevant documents, the question is whether similar relief can be obtained with independent proceedings in Switzerland.

The legal basis for interim relief in Switzerland is twofold: On the one hand, the relevant law is the Swiss Federal Statute of Debt Collection and Bankruptcy (the "DCBL"), which is the exclusive basis for interim relief based on monetary claims. On the other hand, the basis for interim relief are the procedural laws of each of the 26 cantons of Switzerland. These procedural rules offer interim relief in other than monetary claims, i.e. mainly in cases concerning proprietary rights. In general terms, there are four requirements for granting interim relief based on cantonal procedural laws: (1) the likelihood that the claim in the pending main trial is justified, (2) the existence of an imminent and not easily reparable damage, if the relief is not granted, (3) the substantiation of the factual situation by prima facie evidence and (4) the requested provisional measures must not go any further than is necessary for the interim protection of the alleged claim, and the impact on the defendant must be in an adequate relation to the damages the petitioner would incur if he were to win the main trial, but be unable to enforce the judgement because he was not granted the provisional measures.

A. Prohibition of the Disposal of Assets

If a monetary claim is at stake, all the various assets belonging to the debtor and located in Switzerland can be attached based on the DCBL. A prohibition of the disposal of an asset can be obtained based on interim relief according to the procedural laws of the cantons if a proprietary claim, or any other non- monetary claim, is at stake. The judge can also order the defendants to deposit certain assets, or rule that the assets be seized.

B. Disclosure of Information

This type of relief is not intended to secure money claims. It would therefore have to be based on cantonal procedural law. For example, based on ä 231 of the Procedural Law of Zurich, the plaintiff can request the disclosure of documents and can, in this way, receive the information contained in the documents. The intention of this rule is the securing of evidence in a later proceeding on the merits of the case. The judge can, therefore, order the defendants to deliver the documents to the petitioner or to the judge only if it is accepted that they are required as evidence in a trial and that there is a danger of them being destroyed and thus no longer available at a later stage. Because the defendants are always formally ordered to hand the documents over (to the plaintiff or to the judge), the surprise effect cannot be achieved with this type of relief and there is no way of checking whether or not the defendant does indeed disclose the documents as requested.

C. Entry and Search of Premises and Vehicles on the Premises

Neither the DCBL nor the cantonal procedural law provide a way to obtain an order allowing a private party to enter and search premises.

IV. Conclusion

Apart from the attachment of assets under the DCBL, there is no way for a private party to obtain relief comparable to a Mareva Injunction (including disclosure of information and entry of the defendant's premises) in Switzerland with civil proceedings. This is an unsatisfactory situation, which - in the opinion of the author - can be moderated in two different ways.

The first, traditional, way is to involve the criminal authorities in Switzerland. This is possible if criminal acts are involved. The criminal authorities have a far-reaching arsenal of remedies (such as freezing of assets connected to a crime, searching of premises, formal questioning of the persons involved to obtain information) at their disposal. Such remedies will be ordered if a Swiss judge has (criminal) jurisdiction or if one of the involved states has formally requested criminal assistance. The main advantages of the use of criminal proceedings are:

  • Contrary to the proceedings under the DCBL, in order to have assets frozen it is not necessary to prove (on the level of prima facie evidence) that the plaintiff has a valid civil cause against the defendant/debtor, nor that assets are located in Switzerland, nor that sufficient links to Switzerland exist;
  • If the circumstances require immediate action, the Swiss criminal authorities are generally prepared to act quickly;
  • Criminal freezing orders can also be obtained against defendants/debtors residing in Switzerland. Civil attachment orders can almost only be obtained against a debtor/defendant residing outside Switzerland;
  • It is not necessary to post a bond, which for civil attachment proceedings is at the full discretion of the judge, but can generally be estimated to be about 10% of the amount claimed;
  • Third parties in possession of assets on behalf of the defendant/debtor cannot be compelled to disclose information in attachment proceedings under the DCBL. Withholding information is not possible in criminal proceedings, and, for the banks in possession of assets, the banking secrecy is no defence.
  • The only way to gain direct access to the defendant's premises or documents is with the help of the criminal authorities.
  • Criminal relief offers de facto a way to search for assets. This is not possible under the DCBL.
  • In practice, the damaged party, which will usually be able to provide the criminal authorities with information, will often obtain access to additional information through the criminal investigation.

Funds attached by criminal authorities must have been connected to a crime, and it is therefore up to the authorities to decide what is going to happen to them. Consequently, by involving the criminal authorities, the parties lose a degree of control over the attached funds which might jeopardise settlement agreements.

The need to achieve a surprise effect in situations where no criminal behaviour is involved leads to the second possible solution. This is to re-open the discussion in recognition proceedings in Brussels and Lugano Convention States as to whether or not it is possible or not to recognise ex parte decisions under article 25 of the Conventions. Would the European Court of Justice today come to the same conclusion as in Danilauer vs Couchet Freres, considering the well-founded criticism which has been, and still is, expressed against the decision and also the fact that England has wide-ranging - even world-wide - ex parte relief, which was not the case when the Denilauler vs Couchet FrSres decision was rendered? Unfortunately, in the first case in Switzerland, which is reported here, the Swiss judge did not have to answer this issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions