Leading Decision on Enforcement of ICSID Convention Awards
Last week, the Swiss Federal Supreme Court published a new leading decision on its website (decision 5A_406/2022 dated March 17) clarifying the requirements for attaching the assets of a foreign state based on a final ICSID award issued against the foreign state.
In the case under review, an arbitral tribunal had awarded the claimant/creditor certain sums of money through an award rendered under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of March 18, 1965 (the ICSID Convention). The claimant/creditor sought to enforce the ICSID Convention award against the foreign state in Switzerland and requested that several assets of the foreign state located in Switzerland, including bank accounts, real estate, trademarks and patents, be seized under a Swiss attachment order pursuant to article 271 of the Swiss Debt Enforcement and Bankruptcy Act (the DEBA).
In this context, the Swiss Federal Supreme Court confirmed that the creditor does not need to obtain a separate exequatur decision prior to seeking an attachment in Switzerland based on an ICSID Convention award and that it is sufficient for the creditor to show on a prima facie basis that the ICSID Convention award will be recognized and enforced. As to the latter, the Swiss Federal Supreme Court noted that article 54(1) ICSID Convention requires each contracting state to recognize as binding any award rendered under the ICSID Convention and enforce in its territory the financial obligations imposed therein as if it were a final judgment of one of its own domestic courts. Pursuant to article 54(2) ICSID Convention, the interested party need only submit a copy of the award certified by the Secretary General of ICSID in order to obtain recognition and enforcement of the award in the territory of a contracting state. The Supreme Court therefore held that under article 54(1) and (2) ICSID Convention, only an examination of the authenticity of the ICSID Convention award can take place prior to enforcement, but no review of the award, not even a public policy review. In order to obtain an attachment based on an ICSID Convention award, it is thus sufficient for the creditor to show on a prima facie basis that the award is an authentic ICSID Convention award.
With regard to the attachment of assets of a foreign state, the Federal Supreme Court reiterated its case law, according to which such attachment requires, firstly, that the foreign state did not act in a sovereign manner («iure imperii») in the legal relationship underlying the attachment claim, but as a holder of private rights («iure gestionis»). Secondly, an enforcement measure against a foreign state, even in cases of private-law actions, presupposes that the legal relationship in question has a sufficient link to Swiss territory. In its decision, the Federal Supreme Court examined in detail whether the requirement of a sufficient link to Swiss territory also applies in the case of an enforcement of ICSID Convention awards which contracting states are obliged to treat as domestic decisions for the purpose of enforcement. The Federal Supreme Court concluded that such requirement applies also in case of ICSID Convention awards. It held that the requirement of a Swiss nexus does not violate article 54 ICSID Convention and referred to doctrine, according to which the requirement of a Swiss nexus is in line with the contracting states’ right to apply their own law on state immunity from execution (article 55 ICSID Convention). According to case law, a Swiss nexus exists in particular if the legal relationship for which the attachment is sought was established in Switzerland or if it is to be fulfilled here or if the foreign state has at least performed certain acts in Switzerland, thus establishing a place of performance in Switzerland. However, it is not sufficient that assets of the foreign state are located in Switzerland or that the claim was awarded by an arbitral tribunal with its seat in Switzerland. The same was found to apply to the fact that Switzerland as signatory of the ICSID Convention is obliged to treat the ICSID award as a Swiss decision for the purpose of enforcement.
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