Enforcement of a foreign authentic instrument

Facts

The dispute opposes debtor X to bank [Y. AG], which initiated enforcement proceedings in Switzerland based on a German mortgage with submission to enforcement. The cantonal authorities granted the final waiver, considering that the enforceable authentic instrument was equivalent to an enforceable judgment under Article 50 of the Lugano Convention (LugÜ). The debtor filed a civil law appeal with the Federal Court, requesting the annulment of the cantonal decision and the rejection of the waiver request.

The facts are as follows: bank [Y. AG] initiated enforcement proceedings against the debtor in Switzerland based on a German mortgage with submission to enforcement. The cantonal authorities granted the final waiver, considering that the enforceable authentic instrument was equivalent to an enforceable judgment under Article 50 of the Lugano Convention (LugÜ). The debtor filed a civil law appeal with the Federal Court, requesting the annulment of the cantonal decision and the rejection of the waiver request.

Considerations

The Federal Court rejected the debtor's appeal. According to Article 50 of the Lugano Convention (LugÜ), foreign enforceable authentic instruments are equivalent to enforceable judgments and must be enforced under the same conditions. The Court considered that the enforceable authentic instrument in question was indeed an enforceable title within the meaning of Article 50 of the Lugano Convention (LugÜ) and that, therefore, the final waiver had to be granted.

The Court also examined the debtor's arguments that the final waiver would be contrary to public policy and Article 6, paragraph 1, of the European Convention on Human Rights (ECHR), insofar as the enforceable authentic instrument had never been subject to judicial review. However, the Court considered that these arguments were unfounded, as the debtor had the opportunity to challenge the validity of the enforceable authentic instrument in the context of the waiver proceedings.

Furthermore, the Court considered that the introduction of the final…