Disputes Insights #7: Enforcement of Foreign Judgments and Awards against States in Switzerland

Enforcement of foreign judgments and arbitral awards against states has become increasingly relevant. In practice, implementation is not always achieved through voluntary compliance alone. This raises a practical question: where can such decisions be enforced effectively?

Switzerland is of particular relevance for enforcement proceedings, given its role as a major international financial centre and the presence of significant state‑related assets. At the same time, enforcement against states remains complex. The doctrine of state immunity imposes significant constraints.

From a practitioner's perspective, enforcement in Switzerland requires navigating the tension between effective enforcement and respect for sovereignty.

I. Attachment of State Assets and Enforcement Proceedings Against States

A. Attachment as a Gateway to Enforcement

Attachment is the central procedural tool for enforcement against states. In the absence of a domicile in Switzerland, attachment is typically required to establish jurisdiction for enforcement.

The procedure is swift and ex parte. Courts decide within a short timeframe. The debtor state is not heard in advance.

To obtain an attachment order, the creditor must establish three elements on a prima facie basis. First, the existence of a claim. Second, a statutory ground for attachment. Third, the existence of assets in Switzerland.

In practice, the judgment or award itself is usually sufficient to establish the first two requirements. The identification of assets is often the most challenging aspect. Swiss law does not provide for asset disclosure. Creditors must rely on public registers, market intelligence, and investigative work. Even basic online research may yield results, given the transparency obligations applicable to many states.

Attachment prevents the state from disposing of the assets. It creates immediate leverage.

B. Additional Attachment Requirements for State Assets

Attachment against a state is subject to additional requirements derived from public international law. These requirements apply cumulatively.

First, the underlying claim must arise from a commercial activity. Swiss courts will deny enforcement if the claim is based on sovereign conduct.

Second, the claim must have a sufficient connection to Switzerland. This requirement is applied narrowly. It is not met merely because assets are located in Switzerland. A genuine link is required, such as a place of performance or a contractual nexus.

Third, the assets must not serve sovereign purposes. There is a presumption that state assets are used for public functions. The burden lies on the creditor to rebut this presumption. In practice, this requirement is often decisive. Assets linked to diplomatic activity, public administration, or specific governmental purposes are immune.

C. Enforcement Proceedings

Once the attachment has been executed, enforcement proceedings follow. The debtor state is notified at this stage.

The state may challenge the attachment by filing an objection. It may also lodge a complaint against the execution of the attachment, typically invoking immunity. These proceedings may run in parallel.

If the attachment is upheld, the creditor must initiate debt enforcement proceedings. This begins with a formal payment order. The state may object, which suspends the proceedings. The creditor must then seek judicial relief to set aside the objection. If the objection is lifted, enforcement proceeds to seizure and realisation of the attached assets.

The state may raise immunity defences at each stage.

II. Practical Challenges

In practice, enforcement against states is complex. Several recurring challenges arise.

Service on states is conducted through diplomatic channels. This process is formal and time-consuming. Deadlines are extended accordingly.

Debtor states typically raise multiple defences. These include immunity objections, challenges to the Swiss nexus, and arguments based on sovereign use of assets. Procedural objections, such as improper service, are also common.

Asset identification remains difficult. States are not required to disclose their assets. Creditors must rely on public sources, registers, and investigative tools.

Procedural aspects require careful planning. Attachment may be sought wherever assets are located. However, creditors must ensure that assets are indeed present in the district of the seized court. Otherwise, the attachment risks being lifted for lack of jurisdiction.

The coordination of different procedural avenues adds further complexity. Objections and complaints may overlap. A cautious approach requires pursuing all available avenues in parallel.

III. Strategic Considerations

From a practitioner's perspective, enforcement against states requires careful preparation.

Immunity waivers in contracts with states are of central importance. Such waivers must be clear and specific. Without them, enforcement may become significantly more difficult.

Early asset tracing is equally important. Creditors should identify potential enforcement targets at an early stage. This includes both direct state assets and assets held through structures.

Finally, timing and coordination are critical. Attachment, enforcement, and potential parallel proceedings must be aligned.

IV. Conclusion

Switzerland offers a reliable and enforcement-friendly framework for foreign judgments and awards against states. The available tools are effective and the courts are experienced.

At the same time, enforcement remains constrained by state immunity. The balance between enforcement and sovereignty defines the process.

Successful enforcement requires a pragmatic approach. Creditors must combine legal precision with strategic planning.

Our team is ready to assist in both enforcing foreign judgments and arbitral awards against states and in defending states against enforcement.