Switzerland / 27 November 2008 / Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino / 14.2008.78
| Country | Switzerland |
| Court | Switzerland, Camera di esecuzione e fallimenti del Tribunale d’appello, Repubblica e Cantone Ticino |
| Date | 27 November 2008 |
| Case number | 14.2008.78 |
| Applicable NYC Provisions | II | II(2) | IV | IV(1) |
| Source |
www.sentenze.ti.ch (website of the Canton of Ticino), published with the authorization of the competent authorities |
| Languages | English |
| Summary | An award was rendered in the United States, and was subsequently confirmed by a US court. Upon application by X, an Ufficio d’Esecuzione (Debt collection office) in Switzerland issued a payment order against Y on the basis of the judgment of the US court confirming the award. Y raised an objection against the payment order (opposizione) and X sought to have the objection dismissed (rigetto definitivo) before the Pretore (First Instance Court). Y argued, inter alia, that the Ufficio d’Esecuzione could not issue the payment order on the basis of the US judgment. The Pretore dismissed the opposition and Y appealed the decision. The Camera di Esecuzione e Fallimenti del Tribunale d’Appello (Debt Collection and Bankruptcy Chamber of the Court of Appeal) allowed the appeal, holding that the payment order should not have been issued based on the US judgment. It first noted that under the US “doctrine of merger”, a US court could confirm an award rendered in the United States with the effect that the judgment of the US court and the award become one and the same. It then held that Swiss law did not have the doctrine of merger and under Swiss law, the payment order had to be based on an enforceable award. The Tribunale d’Appello also observed that pursuant to Article 194 of the Federal Act on Private International Law (“PIL Act”) the NYC is applicable to the enforcement and recognition of foreign awards and held that X had not complied with the provisions of Article IV NYC as it had not provided the original arbitration agreement and a duly certified copy of the award. |
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Attachment (1)
 Original Language Adobe Acrobat PDF |
