Facts

Parties and procedural history: The wife (appellant), who resides in Great Britain, and [B.] S.A. (respondent, third defendant and trustee of the former husband) dispute the declaration of enforceability in Switzerland. The former husband [C.] lives in Azerbaijan or Russia.

  • In December 2016 the High Court of Justice in London settled the ancillary consequences of the divorce by means of three related decisions.
  • On 20 December 2016 the High Court issued a 'Financial Remedy Order', by which [C.] and his trustees, including the respondent, were jointly and severally ordered to pay a lump sum of GBP 350'000'000.-- to the wife.

Proceedings before the lower court: On 4 January 2017 the wife applied to the Bezirksgericht Zürich for a declaration of enforceability of the order against [C.] and the respondent, insofar as the amount constituted maintenance (GBP 224'430'508.--), and for a precautionary attachment against banks. On 9 January 2017 the district court declared the order enforceable for GBP 224'430'508.--. The attachment against the respondent proved ineffective.

The respondent appealed to the Obergericht of the Canton of Zürich, which, by judgment of 10 December 2018, set aside the declaration of enforceability against the respondent and dismissed her application. The costs ruling against [C.] remained unchanged; the costs of the appeal proceedings were imposed on the wife.

Requests before the Federal Supreme Court: The wife requests that the judgment be set aside and that the order be declared enforceable against the respondent with regard to the joint and several maintenance obligation of GBP 224'430'508.--, or alternatively that the matter be remitted. The respondent requests that the appeal be declared inadmissible, or alternatively dismissed, or subordinately remitted.

Points at issue:

  • Applicability of the new Lugano Convention (new LugC): is this a maintenance matter or a matrimonial property matter?
  • Effect of an assignment declaration signed after the substantive judgment (22 January 2018) in favour of a third person.
  • Service of the document instituting proceedings on the respondent (Art. 34 No. 2 new LugC).
  • Enforceability of the order in the state of origin and proof by means of the standard form under Annex V of the new LugC.

Considerations

Admissibility: The civil law appeal is admissible against decisions on the declaration of enforceability under the new LugC (Art. 44 new LugC, Annex IV in conjunction with Art. 72 para. 2 lit. b No. 1 FSCA). The respondent's objection that the wife is no longer aggrieved as a result of the assignment concerns standing on the merits and not the standing to appeal, and is therefore not to be examined at the admissibility stage. Insofar as the wife requests the setting aside of No. 2 (costs ruling against [C.] ), she lacks a legal interest (Art. 76 para. 1 lit. b FSCA), so the appeal is inadmissible in that respect.

Scope of review and principle of complaints: A violation of international law, such as the new LugC, is reviewed freely (Art. 95 lit. b FSCA), but only where the grounds are formally sufficient (Art. 42 para. 2 FSCA). Complaints about the establishment of facts are subject to the strict principle of complaints (Art. 97, 105, 106 para. 2 FSCA); new facts and evidence are only admissible insofar as the decision under appeal gives cause for them (Art. 99 para. 1 FSCA). General references to earlier submissions are not sufficient.

Two-stage procedure under the new LugC: In the first stage, only a formal review takes place without hearing the debtor (Art. 41 new LugC). In the appeal procedure (second stage), the right to be heard must be observed and the grounds for refusal of recognition under Art. 34 et seq. new LugC must be examined, with full cognition (Art. 327a CPC). The declaration of enforceability may only be refused on the grounds of Art. 34 or 35 (Art. 45 para. 1 new LugC); a review of the merits is excluded (Art. 36 new LugC).

Substantive scope (maintenance versus matrimonial property): The new LugC covers civil and commercial matters, but not matrimonial property regimes (Art. 1 para. 2 lit. a new LugC), while it does cover maintenance matters (Art. 5 No. 2 new LugC). The concepts are to be interpreted autonomously under the Convention. The decisive factor is the purpose of the performance: if it serves to secure the maintenance of a spouse, a maintenance matter exists, even where a lump-sum payment or transfer of ownership is provided (BGE 142 III 466 E. 4.2). The Obergericht wrongly denied the maintenance character by relying solely on the wife's lack of need; the decisive factor is the purpose of the compensation. The capitalised living costs of GBP 157'100'000.-- serve the current cost of living and are therefore maintenance payments. As regards the funds for the property purchase (GBP 67'200'000.--) and the costs of enforcing rights (GBP 170'000.--), there are insufficient findings on their purpose. The fixing of the total amount by reference to the marital assets (41.5%) says nothing in itself about the purpose of the performance, so the reasoning of the Obergericht and of the respondent is not convincing in that respect.

Effect of the assignment: Under Art. 45 para. 1 new LugC, only the grounds for refusal of recognition and the conditions for a declaration of enforceability are to be examined in the appeal procedure. Substantive defences and objections arising after the decision was made (discharge, deferral, limitation, assignment) are only to be assessed in the enforcement proceedings. The assignment of 22 January 2018 therefore does not stand in the way of the declaration of enforceability; this also applies to the objection of contradictory conduct.

Service of the document instituting proceedings (Art. 34 No. 2 new LugC): The appeal judge is neither bound by the information in the standard form under Annex V (Art. 54 new LugC) nor by the findings of the trial court, and must, where there is cause, carry out its own investigations. The Obergericht confined itself to referring to the standard form and the substantive judgment,…