Declaration of enforceability of a Romanian precautionary seizure under the Lugano Convention: interpretation of the application and exclusion in bankruptcy proceedings rejected, debtor's appeal dismissed

Facts

The parties are in litigation before Romanian courts. The [B.] SRL (creditor, seated in Romania, represented in the proceedings by an insolvency administrator) requested security against the appellant [A.] (debtor, residing in Ghana) in respect of a claim based on director liability (similar to Art. 754 CO). The debtor, together with two other persons, holds a property in joint ownership as a simple partnership.

By decision No. 179 of 10 March 2020, the District Court of Constanța ordered a precautionary seizure of the debtor's movable and immovable assets up to CHF 237'239.60. The Court of Appeal of Constanța dismissed the appeal by judgment No. 86 of 29 April 2020.

On 14 December 2020, the creditor applied to the Regional Court Berner Jura-Seeland for a declaration of enforceability of the appeal judgment and for an attachment on the debtor's liquidation share in the simple partnership. By decision of 18 December 2020, the Regional Court declared enforceable not only the appeal judgment but also the first-instance decision. On the same day, it issued an attachment order based on Art. 271 para. 1 no. 6 and para. 3 DEBA.

The debtor requested the reasons, filed an objection to the attachment and, on 14 May 2021, challenged the declaration of enforceability by way of an appeal to the Obergericht of the Canton of Bern. He requested that the Romanian decisions not be declared enforceable. The Obergericht dismissed the appeal by decision of 6 October 2021.

By civil law appeal of 29 October 2021, the debtor requested before the Federal Supreme Court the annulment of the Regional Court's decision, alternatively of the Obergericht's decision, and that the Romanian decisions be declared unenforceable, subalternatively remittal. The application for suspensive effect was dismissed by presidential order of 16 November 2021. A submission of 22 November 2021 supplementing the appeal was filed after the expiry of the appeal period.

The points in dispute were in particular: (1) the absence of an express application for a declaration of enforceability of the first-instance decision; (2) the applicability of the new LugC, given that the decisions were issued in the context of bankruptcy proceedings (exclusion under Art. 1 para. 2 lit. b new LugC); (3) the designation of the parties after the creditor's bankruptcy; (4) the alleged lack of recognition of the bankruptcy in Switzerland and the nullity of the decisions.

Considerations

Admissibility and scope of review: The civil law appeal is open against the Obergericht's decision (Art. 72 para. 2 lit. b no. 1, Art. 74 para. 1 lit. b, Art. 76, Art. 90 FSCA). The Regional Court's decision is not subject to appeal before the Federal Supreme Court (Art. 75 FSCA). The period under Art. 100 para. 1 FSCA expired on 10 November 2021; the submission of 22 November 2021 is therefore untimely in this respect. An independent exequatur decision does not count as a provisional measure within the meaning of Art. 98 FSCA (BGE 135 III 670 consid. 1.3.2), so the general grounds of appeal apply (Art. 95-97 FSCA). The attachment is not the subject matter of the proceedings.

Application for a declaration of enforceability (Art. 38 ff. new LugC): The Federal Supreme Court has since held that no formal application for a declaration of enforceability of a Lugano title is required in connection with an attachment under Art. 271 para. 3 DEBA (judgment 5A_428/2022 of 18 January 2023 consid. 5.2.3, intended for publication; cf. BGE 147 III 491 consid. 6.2.1). The Obergericht, however, did not assume a declaration of enforceability ex officio, but interpreted the application. Under Art. 40 para. 1 new LugC, the filing of the application is governed by the law of the enforcement State; requests must be interpreted in good faith and in light of their reasoning (BGE 137 III 617 consid. 6.2). The debtor did not explain why this interpretation should be excluded. The reasoning of the application and the attachments (including the form under Art. 53 / Annex V new LugC) revealed the intent to obtain a declaration of enforceability also of the first-instance decision. The subsidiary consideration regarding the duty to ask questions (Art. 56 CPC) did not need to be examined.

Applicability of the new LugC and exclusion clause (Art. 1 para. 2 lit. b new LugC): The exclusion applies only to actions arising within the context of a bankruptcy liquidation, directly deriving from the bankruptcy proceedings and closely connected with the liquidation of assets. Proceedings that could also have been brought without bankruptcy do not fall under it (BGE 131 III 227 consid. 3.2; 133 III 386 consid. 4.3.1; 141 III 382 consid. 3.4). The Obergericht characterised the Romanian proceedings as securing a disputed claim by restricting the power of disposal, comparable to a Swiss attachment. The debtor did not substantively contest this characterisation. The reference to the Romanian Insolvency Law No.…