Definitive removal of objection based on English judgments: exequatur refused, jurisdiction and public policy rejected

Facts

[B.] S.r.l., a company active in the research and marketing of pharmaceutical and para-pharmaceutical products, is the creditor. The debtor [A.] , professor of gastroenterology and immunology, is the inventor of a food supplement marketed under the brand [X.] . A dispute arose between the parties concerning the marketing of this product.

On 25 August 2017, the creditor had a payment order served on the debtor (debt enforcement proceeding no. x'xxx'xxx of the Riviera-Pays d'Enhaut Debt Enforcement Office) for CHF 86'722, CHF 18'513.60 and CHF 24'684.80, without interest. The basis of the claim consisted of three English decisions: a judgment of the Court of Appeal of London of 15 October 2015 ordering the debtor to pay costs of GBP 70'263.50, and two judgments of the High Court of Justice of 9 October 2015 (GBP 15'000 and GBP 20'000). The debtor filed a full objection.

On 22 November 2018, the Justice of the Peace of the Riviera-Pays d'Enhaut district definitively removed the objection up to CHF 129'764.54. By judgment of 27 February 2019, the Debt Enforcement and Bankruptcy Chamber of the Vaud Cantonal Court dismissed the debtor's appeal.

The debtor applied to the Federal Supreme Court by civil appeal, seeking dismissal of the application for removal of objection and maintenance of his objection. The President of the Court rejected the application for suspensive effect. Observations on the merits were not requested.

The dispute mainly concerns the exequatur, under the Lugano Convention (new LugC), of foreign decisions invoked in definitive removal of objection proceedings, in particular from the angle of irreconcilability, public policy, the jurisdiction of the English courts, the service of documents and set-off against an alleged claim.

Considerations

The Federal Supreme Court examines admissibility of its own motion. The appeal was filed in time against a final decision rendered by a higher court ruling on an appeal concerning exequatur in definitive removal of objection proceedings (art. 100 para. 1, 90, 75 paras. 1 and 2, 72 para. 2 let. a and let. b no. 1 FSCA; art. 81 para. 3 DEBA and 38 et seq. new LugC). The amount in dispute reaches the statutory threshold (art. 74 para. 1 let. b FSCA) and the debtor, who was unsuccessful, has standing to appeal (art. 76 para. 1 FSCA). The Federal Supreme Court rules on the basis of the facts established by the previous authority (art. 105 para. 1 FSCA); appellate criticisms and mere alternative versions of the facts are inadmissible (art. 97 para. 1, 106 para. 2 FSCA).

It is not disputed that the new LugC applies. According to art. 38 para. 1 new LugC, enforceable decisions in a bound State are enforced after exequatur. In enforcement proceedings, the debt enforcement judge rules incidentally on exequatur (art. 81 para. 3 DEBA). The grounds for refusal, exhaustively listed in art. 34 and 35 new LugC, must be invoked and proven by the party opposing exequatur.

As regards irreconcilability (art. 34 paras. 3 and 4 new LugC), the cantonal authority held that the exception in art. 34 para. 4 new LugC does not cover irreconcilable decisions issued by courts of the same State, and that the English decision of 31 March 2015 reserved provisional measures, which the disputed decisions constitute. It further held that the Vaud order of 17 July 2015 was not irreconcilable, the findings of likelihood on the holding of rights not having the force of res judicata. The appellant merely copies and pastes his cantonal appeal, without reasoning compliant with art. 42 para. 2 FSCA; the complaint is inadmissible.

As to public policy (art. 34 para. 1 new LugC), the reservation, an exception clause interpreted restrictively, does not allow review of the jurisdiction of the court of origin, art. 35 para. 3 new LugC prohibiting such review. The jurisdiction of the English courts was based on art. 31 new LugC, which allows a judge other than the court of the merits to order provisional measures, the appellant having acknowledged this jurisdiction. Art. 67, 68 and 64 new LugC are not relevant, Switzerland not being a member of the EU (art. 64 para. 2 let. c new LugC). The judgment 5A_812/2015 invoked concerns Geneva rules of jurisdiction under domestic…