Recognition and enforcement of a foreign arbitral award as a title for definitive release of attachment

Facts

On April 14, 2011, a sole arbitrator sitting in London rendered an arbitral award in a contractual dispute between B. and C., as claimants, and a third company and A., as defendants. The award declared that A. was a party to the disputed contract and ordered the defendants to pay the claimants the sum of $5,000,000, reimburse their legal fees and costs amounting to $136,195, and pay interest.

On July 5, 2011, B. and C. requested that the justice of the peace of the district of Nyon order the attachment, under Art. 271(1)(6) of the DEBA, up to the amount of CHF 4,587,568, plus interest, of parcel x of the Municipality of D., owned by A., all the movable property located therein belonging to the aforementioned, and all assets and property belonging to him. A. objected to the attachment, arguing that the arbitral award did not constitute a title for definitive release of attachment, due to the lack of prior exequatur.

By decision of October 11, 2011, the justice of the peace upheld the objection to the attachment, on the grounds that the creditors had not made it plausible that the conditions for the recognition and enforcement of the arbitral award were met. However, by judgment of April 12, 2012, the Enforcement and Bankruptcy Court of the Vaud Cantonal Tribunal allowed the appeal filed by B. and C. and rejected the objection to the attachment.

Considerations

The Federal Tribunal had to determine whether it was arbitrary, within the meaning of Art. 9 of the Federal Constitution, to hold that the attachment judge can declare a foreign judgment rendered in a State that is not a party to the Lugano Convention - or a foreign arbitral award - enforceable on an incidental basis, so that this decision constitutes a title for definitive release of attachment within the meaning of Art. 271(1)(6) of the DEBA.

The Federal Tribunal considered that a foreign "non-Lugano" judgment constitutes a title for definitive release of attachment within the meaning of Art. 271(1)(6) of the DEBA. It also ruled that it was not arbitrary to hold that the attachment judge can rule incidentally on the enforceability of the "non-Lugano" foreign decision, following a summary…