Recognition and Enforcement of a Foreign Judgment against Companies in Composition Liquidation

Facts

The ancillary bankruptcy estate of Sabena SA (the respondent) is the Swiss PILA bankruptcy estate of the Belgian airline company Sabena SA, which went bankrupt on November 7, 2001. SAirLines AG and SAirGroup AG had been in composition proceedings with assignment of assets under Art. 317-331 DEBA since 2001.

In Belgium, a civil lawsuit is pending, in which the question is whether SAirGroup and SAirLines have violated contractual and/or non-contractual obligations in connection with the commercial cooperation between the SAir Group and Sabena, and whether this has resulted in an obligation to pay damages. On January 27, 2011, a preliminary decision was issued in this proceeding, in which SAirGroup and SAirLines were held responsible for Sabena's bankruptcy and ordered to pay EUR 18,290,800.60 to Sabena's bankruptcy estate.

The respondent then applied to the single judge of the District Court of Zurich to have the Belgian judgment recognized and declared enforceable. The High Court of the Canton of Zurich confirmed the declaration of enforceability.

Considerations

The Federal Supreme Court upholds the appeal against this and dismisses the respondent's request for recognition and declaration of enforceability of the Belgian judgment, to the extent that it is admissible.

The Federal Supreme Court considers the Belgian judgment to be insolvency proceedings, which, according to Art. 1 para. 2 lit. b LugC, do not fall within…