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WHY FOREIGN FREEZING ORDERS MATTER IN CROSS-BORDER LITIGATION
The increasing internationalisation of financial flows has significantly shaped the dynamics of commercial litigation. Assets linked to a dispute are rarely confined to a single jurisdiction. Bank accounts, securities, corporate participations or real estate interests may be spread across multiple countries, often through layered ownership structures or complex financial arrangements. As a result, the effective enforcement of claims increasingly depends on the ability of litigants to secure assets located abroad.
In this context, freezing orders have become a central procedural instrument in cross-border litigation. Rather than determining the merits of a claim, they seek to preserve the debtor's patrimony and ensure that a future judgment does not become purely theoretical due to the dissipation of assets during the course of proceedings.
Time is therefore a decisive factor. Asset transfers can occur rapidly, particularly where financial intermediaries and international banking channels are involved. Effective litigation strategies must therefore integrate mechanisms capable of immobilising assets at an early stage of proceedings. In practice, speed often determines whether a claim retains any real economic value.
Switzerland occupies a particularly important position in this regard. Historically recognised as a major international financial centre, the country hosts a large number of banking institutions and asset-holding structures. Consequently, assets connected to international disputes are frequently located in Switzerland even where the underlying litigation takes place abroad.
In practical terms, locating assets in Switzerland requires a combination of investigative steps drawing for example on public registers, debt enforcement records and, where available, information disclosed in the context of foreign proceedings.
Often, pre-litigation investigative steps inform a key strategic question: whether to seek protective measures directly in Switzerland or to rely on measures obtained abroad. In many cases, initiating a Swiss attachment under the Federal Act on Debt Enforcement and Bankruptcy (DEBA) at the outset — without waiting to obtain a foreign freezing order first — is the most direct and effective approach. The present article, however, focuses on a distinct scenario: that of a creditor who has already obtained a foreign freezing order and seeks to give it effect in Switzerland.
In the scenario where it may be strategically preferable to obtain protective measures abroad and subsequently seek their recognition and enforcement in Switzerland, such approach requires a careful understanding of the legal mechanisms governing the circulation of foreign decisions in Swiss law.
THE LUGANO CONVENTION FRAMEWORK FOR THE RECOGNITION OF FOREIGN FREEZING ORDERS
In cross-border disputes, creditors may obtain provisional or conservatory measures in a State bound by the Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the "Lugano Convention" or "LC"), namely the Member States of the European Union, including Denmark which participates as a separate Contracting Party due to its opt-out from the Brussels I Regulation, as well as Switzerland, Norway and Iceland.
Such measures are generally intended to preserve assets pending the outcome of proceedings on the merits. Their effectiveness, however, depends on their ability to produce effects in the jurisdiction where the debtor's assets are located. Where such assets are situated in Switzerland, the creditor cannot directly rely on the foreign measure, but must instead make use of the mechanisms provided under Swiss law.
At the outset, a fundamental distinction must be drawn between two types of foreign conservatory measure, as it determines which Swiss enforcement route is available.
The first category consists of measures that operate in rem: they directly attach identified assets, freezing them as a matter of property law regardless of who holds them. Examples include the Greek conservatory attachment and the Italian sequestro conservativo. Where such a measure is declared enforceable in Switzerland under the Lugano Convention, the appropriate Swiss enforcement instrument is the DEBA attachment order (séquestre).
The second category consists of measures that operate ad personam: they take the form of a personal injunction addressed to the debtor, prohibiting disposal of assets under threat of sanctions, without directly binding third parties such as banks. Certain anglo-saxon freezing orders such as English Worldwide Freezing Order are the paradigmatic example. Even where such a measure is declared enforceable in Switzerland under the Lugano Convention, the enforcement instrument is not the DEBA attachment but the real enforcement mechanisms of the Swiss Code of Civil Procedure (CPC), namely Articles 340 ff. CPC for security and Article 343 CPC for enforcement of obligations to act, refrain or tolerate.
For the first category, the Swiss attachment order ("séquestre") under the DEBA constitutes an urgent conservatory measure designed to prevent the debtor from disposing of assets in a manner that would jeopardise current or future enforcement proceedings. Its function is to ensure that assets remain available to satisfy the creditor's claim by placing them temporarily under judicial control. It remains, in practice, the central and most effective tool for freezing assets in Switzerland.
The relevant statutory ground for attachment is Article 271 para. 1 no. 6 DEBA, which provides that a creditor holding a definitive enforcement title — including a foreign conservatory measure declared enforceable in Switzerland — may request attachment of the debtor's assets. In such case, as foreign decision is produced, the creditor is not required to establish a prima facie case for their claim which would have been necessary for an ordinary attachment.
In cross-border litigation, securing a freezing order abroad is one thing. Identifying assets in Switzerland is where the test begins. Indeed, even in possession of a foreign freezing order, the creditor needs to establish likeliness of the existence of assets in Switzerland.
The notion of "assets in Switzerland" under DEBA is understood as referring to assets that legally belong to the debtor and are located within Swiss territory. In practice, this includes bank accounts held with Swiss financial institutions, claims against Swiss counterparties, or movable property physically located in Switzerland.1
Assets formally belonging to third parties are, as a rule, excluded, subject to exceptional situations in which the principle of transparency (Durchgriff) allows to pierce through corporate veils.2
Attachment proceedings are characterised by their urgency and their unilateral nature at the initial stage. The attachment judge decides ex parte and on the basis of simple plausibility rather than full proof. This procedural configuration enables the creditor to act without prior notice to the debtor and to preserve the element of surprise, which is inherent to the effectiveness of the measure.
Where the attachment is based on a foreign decision falling within the scope of the Lugano Convention, Article 271 para. 3 DEBA requires the attachment court to rule on the declaration of enforceability of that decision. This ruling must be explicit — made either in a separate order or directly in the operative part of the attachment order. The prior practice of ruling on enforceability merely on an incidental basis is not consistent with the clear text of Article 271 para. 3 DEBA. This results in a combined examination carried out within the same summary and unilateral procedure. The attachment court determines both the conditions for granting the attachment and the enforceability of the foreign decision.3
It is therefore often appropriate for the creditor to seek both the attachment and the declaration of enforceability in the same application.
For claims denominated in a foreign currency, the application must indicate the amount of the claim in Swiss francs according to Article 67 para. 1 no. 3 DEBA, the applicable conversion rate being that of the date on which the debt enforcement request is filed.4
Once the attachment order has been issued, the debtor is afforded access to remedies under Swiss law. These remedies reflect the distinction between attachment proceedings and the Lugano recognition regime.
The debtor may challenge the attachment itself by way of opposition under Article 278 DEBA. This procedure introduces an adversarial phase in which the debtor may contest attachment-specific conditions — such as whether the arrested assets actually belong to the debtor, whether an incorrect conversion rate was applied, or whether the relevant statutory ground is satisfied. In the context of attachments based on foreign conservatory measures, the opposition may not be used to challenge the exequatur of the underlying foreign decision.
By contrast, issues relating to the recognition and enforceability of the Lugano decision are not examined in the opposition proceedings. Such issues must be raised by way of the appeal provided for in Article 327a CPC, which implements Article 43 LC.5 As a result, the debtor may be required to conduct parallel proceedings in order to challenge both the attachment and the declaration of enforceability.
It is within the framework of this latter procedure that the conditions for recognition under the Lugano Convention are assessed.7 The Convention provides for a system of automatic recognition of decisions rendered in Contracting States under Article 33 para. 1 LC, subject to the limited and exhaustive grounds for refusal set out in Articles 34 and 35 LC — including manifest incompatibility with public policy, improper service, and irreconcilability with another decision.
In procedural terms, the party seeking recognition or enforcement must produce an authentic copy of the decision and the certificate issued by the court of origin using the standard form provided in Annex V to the Convention, as governed by Article 54 LC.6
Where a declaration of enforceability has already been granted, Article 47 para. 2 LC provides that the creditor is entitled to request measures designed to guarantee the effectiveness of the decision. It should further be noted that under Article 47 para. 1 LC, a creditor may apply for provisional including protective measures under Swiss law even without a prior declaration of enforceability under Article 41 LC. This provision allows asset preservation measures to be sought before or independently of the full exequatur procedure, which is of particular practical significance in time-sensitive asset preservation situations.
In relation to the second category of conservatory measures, where a Lugano decision operating ad personam order has been declared enforceable in Switzerland, the creditor may rely on Article 47 para. 2 LC to request the appropriate measures under Swiss law. The enforcement of the personal obligation runs against the debtor alone, through the enforcement mechanisms of the CPC. Article 343 CPC provides the relevant catalogue of available measures: a criminal sanction for disobedience under Article 292 CP, a disciplinary fine, direct enforcement, or the appointment of an agent to perform the required act. The choice among these instruments depends on the nature of the obligation contained in the foreign decision.
The debtor may challenge the declaration of enforceability by way of the appeal provided for in Article 327a CPC, implementing Article 43 para. 5 LC, within one or two months of service depending on his place of domicile.
Outside the Lugano framework, asset preservation in Switzerland becomes more fragmented and requires careful procedural planning.
FREEZING ORDERS FROM NON-LUGANO STATES: THE ROLE OF THE SWISS PILA
Swiss law accepts in principle that foreign interim measures aimed at preserving assets may produce effects in Switzerland. However, their implementation follows a specific mechanism that differs significantly from the one applicable under the Lugano Convention.
The distinction and procedural differences that arise between ad personam and in rem measures is also applicable to non-Lugano States.
In non-Lugano situations, however, this mechanism operates within the framework of the Federal Act on Private International Law (PILA), and its articulation differs significantly from the regime established under the Lugano Convention.
For in rem freezing orders, recourse must be made to the Swiss attachment mechanism under the DEBA.
Where the creditor relies on a foreign decision as a basis for attachment under Article 271 para. 1 no. 6 DEBA, the judge examines its enforceability only on an incidental basis. At this stage, it is sufficient that nothing appears prima facie to preclude recognition under Swiss law. A more detailed examination of the conditions set out in Articles 25 et seq. PILA will take place at a later stage, namely in the opposition proceedings against the attachment order under Article 278 DEBA.7
Here also, the creditor invoking Article 271 para. 1 no. 6 DEBA is not required to render the claim plausible, as it derives directly from the decision that is produced. However, in PILA cases, the attachment judge's assessment of the enforceability of a non-Lugano decision remains incidental and does not bind the court subsequently seized of enforcement proceedings.8
The situation becomes more complex where the debtor challenges the attachment.
In opposition proceedings under Article 278 DEBA, the debtor is heard and the procedure becomes adversarial. It is at this stage that the creditor must demonstrate that the foreign decision relied upon is capable of being recognised in Switzerland.
The scope of objections that may be raised by the debtor against recognition and enforceability is broader in PILA than in Lugano situations.
Indeed, the conditions and procedure for recognition are governed by Articles 25 to 29 PILA, which also apply by analogy to decisions rendered in non-contentious proceedings.
Under Article 25 PILA, a foreign decision is recognised in Switzerland if the foreign authority had jurisdiction, if the decision is final or no longer subject to ordinary appeal, and if there are no grounds for refusal within the meaning of Article 27 PILA.
Pursuant to Article 29 para. 1 let. b PILA, the application for recognition or enforcement must be accompanied by a certificate attesting that the decision is final or no longer subject to ordinary appeal.
Recognition may be refused in particular where it is manifestly incompatible with Swiss public policy, where fundamental procedural guarantees have not been respected, or where the decision is irreconcilable with another judgment. In this context, the Swiss court does not review the merits of the foreign decision.
In the specific context of foreign conservatory measures, an additional issue arises: whether such measures — provisional by nature and subject to revision — satisfy the finality requirement of Article 25 let. b PILA. The prevailing view in Swiss doctrine and an emerging line of case law tends to accept recognition of contradictory foreign interim measures, provided they are no longer subject to ordinary appeal in the state of origin.
If these conditions are not satisfied, the attachment may be lifted upon opposition, even if it was initially granted on a prima facie basis.
This framework leads to important strategic considerations for creditors seeking to preserve assets in Switzerland. In contrast to the Lugano regime, where attachment and exequatur may be easily combined, the non-Lugano regime makes a clear separation between attachment and recognition.
In practice, if the circumstances permit, it is often advisable to initiate attachment proceedings in Switzerland at an early stage, even without a foreign freezing order and in parallel with the introduction of proceedings on the merits abroad. Swiss law accepts that an attachment may remain valid as long as proceedings on the merits are pending.9
This approach allows the creditor to preserve the element of surprise and prevent the debtor from relocating assets prior to the implementation of protective measures. By contrast, if proceedings on the merits are initiated first in a foreign jurisdiction, the debtor may become aware of the dispute and reorganise its assets, thereby reducing the effectiveness of subsequent attachment measures in Switzerland.
With regard to foreign ad personam conservatory measures from non-Lugano States, recognition under the PILA — where available — does not alter the enforcement pathway: the personal obligation runs against the debtor alone and is enforced through the enforcement mechanisms of the CPC. The conditions for recognition are here also significantly more demanding than under the Lugano Convention, as all requirements arising from Articles 25 to 29 PILA must be met. One procedural distinction from the Lugano regime is in particular worth noting: under PILA, recognition proceedings are adversarial at first instance pursuant to Article 29 para. 2 PILA, such that the debtor is heard before any declaration of enforceability is granted, rather than being confined to a post-decision appeal.
However, none of the above precludes a creditor from seeking urgent conservatory measures directly before Swiss courts under the general provisions of the CPC, independently of any recognition procedure.
To conclude, the regime applicable to non-Lugano States is characterised by a greater degree of fragmentation and procedural complexity.
In contrast to the Lugano Convention, which offers a coordinated and efficient framework, the PILA regime requires careful procedural planning and the parallel use of distinct legal mechanisms. The effectiveness of asset preservation therefore depends not only on the existence of a foreign claim, but also on the creditor's ability to anticipate procedural constraints and act swiftly within the Swiss legal system.
At SKANDAMIS AVOCATS, we regularly assist private clients, financial institutions and multinational corporations in complex cross-border litigation involving the recognition and enforcement of foreign decisions, asset tracing and international freezing measures. Effective asset recovery strategies require early coordination between foreign proceedings and Swiss enforcement mechanisms, as well as a precise understanding of both procedural and evidentiary requirements in Switzerland.
Footnotes
1. Swiss Supreme Court decisions 5A_629/2011 of 26 April 2012, consid. 5.1; 5A_876/2015 of 22 April 2016, consid. 4.2; 5A_873/2010 of 3 May 2011, consid. 4.2.2.
2. Art. 2 para. 2 Swiss Civil Code; ATF 132 III 489 consid. 3.2; ATF 144 III 541 consid. 8.3.2.
3. ATF 147 III 491; ATF 143 III 693
4. ATF 137 III 623
5. ATF 147 III 491
6. Art. 53 para. 1 LC; Art. 54 LC
7. Decision of Geneva's Civil Chamber of Court of Justice, ACJC/526/2023 of 21 April 2023, consid. 4.1.1.
8. Ibid.
9. See attachment validation procedure in case of foreign procedures in ATF 146 II 157
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.
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