Rejection of the request for attachment against a foreign state based on an ICSID arbitral award

Facts

On 4 April 2022, A. AG filed a request for attachment with the Regional Court of Bern-Mittelland against the State of B. for the amount of CHF 33,253,049.13 plus ancillary claims. The creditor based its request for attachment on an arbitral award of the International Centre for Settlement of Investment Disputes (ICSID) dated 6 September 2019 (and its correction of 28 October 2019) under the ICSID Convention.

The Regional Court did not enter into the request for attachment. A. AG then filed a complaint with the Cantonal Court of the Canton of Bern, which dismissed the complaint. A. AG then appealed to the Federal Supreme Court, which also dismissed the appeal.

Considerations

The Federal Supreme Court does not consider it arbitrary to make the admissibility of a request for attachment based on an ICSID arbitral award dependent on a formal declaration of enforceability of the arbitral award. However, in the view of the Federal Supreme Court, it is also not arbitrary to make the admissibility of such a request for attachment subject to the requirement that the…