Decision of the President of the Cantonal Court on the Release of Seized Assets in the Context of Recognition and Declaration of Enforceability under the Lugano Convention

Facts

B. Canada Ltd., C. Trust Company, and D. Trust Corporation (trustees of pension funds of B. Corporation, Canada) filed a criminal complaint against A. in the Canton of Ticino and brought a civil action against him (among others) before the High Court in London. On May 23, 1997, the High Court issued civil protective measures (so-called Mareva Injunctions), which the President of the Cantonal Court in the Canton of Zug (as a single judge) partially recognized and declared enforceable by order dated February 27, 1998. A. filed a legal remedy against this decision in accordance with Art. 36 et seq. of the Lugano Convention.

The main proceedings before the High Court in London were concluded by decisions dated May 20 and June 12, 1998. A. was ordered to pay the claimants approximately CAN$ 234 million and approximately US$ 125 million. The claimants also requested the President of the Cantonal Court in the Canton of Zug to recognize and declare enforceable these decisions in accordance with the Lugano Convention. By order dated October 29, 1998, the President of the Cantonal Court (as the judge for the enforcement of judgments) granted the request and ordered the provisional seizure by analogy to Art. 83 para. 1 of the Debt Enforcement and Bankruptcy Act up to a maximum amount of 4 million Swiss francs as a precautionary measure. A. also filed a legal remedy against this decision in accordance with Art. 36 et seq. of the Lugano Convention.

On May 14, 1999, A. requested the President of the Cantonal Court to instruct the Debt Collection Office Z. to transfer CHF 22,950 from the provisionally seized bank balances to Cantonal Bank X., as he was unable to pay the semi-annual interest and amortization installments for his fixed-rate mortgage on the holiday home property in the Canton of Graubünden. The President of the Cantonal Court dismissed the request on June 25, 1999 for the time being.

Considerations

The Federal Supreme Court first examines the admissibility of the constitutional appeal. It finds that the contested decision of the President of the Cantonal Court is not the final cantonal instance, as the jurisdiction of the Cantonal Court (tribunal…