Facts
On May 23, 1988, the company R. (hereinafter: R.), headquartered in the Cayman Islands (British Virgin Islands), sued P. and other persons before a U.S. court (United States District Court for the Southern District of New York; hereinafter: the Court) to demand the repayment of funds that it had entrusted to him for management.
Initially, P. was represented by American lawyers who relinquished their mandate during the proceedings. By order dated November 18, 1988, the Court set him a deadline of 30 days to appear in person or appoint an authorized attorney, failing which a default judgment could be issued against him. P., to whom this order was served, did not comply with it.
On February 3, 1989, the Court issued a default judgment, convicting P. to pay R. the amount of $60,910,330.67. This judgment, which did not contain any substantive reasoning, was not served on P. and became final under American law.
In February 1990, R. obtained the sequestration of P.'s assets in Geneva and initiated a validation procedure, to which the debtor objected.
The District Court of the Canton of Geneva dismissed the application for the lifting of the sequestration on May 3, 1990. By judgment of August 14, 1990, the Court of Appeal of the Canton of Geneva confirmed this decision. Like the lower court, it was of the opinion that the foreign judgment was incompatible with Swiss public policy (ordre public).
Considerations
a) The Federal Supreme Court examines the application of federal law - here the PILA - within the framework of the constitutional complaint due to a violation of Art. 4 of the Federal Constitution only for arbitrariness. In decisions on the granting of the declaration of enforceability of foreign judgments, the scope of review of the Federal Supreme Court is even more limited than in decisions based on a bilateral or multilateral treaty. The Federal Supreme Court can therefore only set aside the contested decision if it seriously violates a clear legal norm or an undisputed legal principle or is shockingly contrary to the sense of justice.
b) The recognition of a foreign decision is to be refused, among other things, if a party proves that the decision was made in violation of the principles of Swiss procedural law, in particular if it was deprived of the possibility of asserting its rights (Art. 27 para. 2 lit. b PILA). Swiss public policy (ordre public) requires compliance with the basic rules of civil procedure, such as proper service, a fair trial, the right to be heard, and the absence of pending proceedings in Switzerland or a final judgment in the same matter.
c) The Cour de justice was right not to assume that the lack of official service of the American default judgment on P. violates Swiss public policy (ordre public). P. does not claim that the judgment of February 3, 1989 did not become final under American law because it was not served on him. Moreover, such an objection would obviously have no basis, since under the American Rules of Civil Procedure, the judgment is only to be served on the prevailing party.…