Foreign Default Judgments in Switzerland – the Limits of Service by Publication

Foreign judgments are not automatically enforceable in Switzerland. They require a prior declaration of enforceability (exequatur) by a Swiss court. One ground for refusing recognition – under both the Lugano Convention and the Swiss Federal Act on Private International Law (PILA) – is that the defendant was not properly informed of the foreign proceedings.

What if the defendant was "blindfolded"?

The question that comes up is what happens when the defendant’s address was unknown and the foreign court resorted to service by publication. The Swiss Federal Supreme Court addressed it on 13 March 2026 in its decision 4A_157/2025, in the context of a Payment Order from Dubai. The decision leaves general questions open but sets a clear minimum rule and, read alongside the Court’s earlier case law on the Italian decreto ingiuntivo, offers guidance for foreign parties who seek enforcement of such default judgments in Switzerland.

A Dubai Payment Order Through Three Swiss Instances

In 2019, the first-instance court of Dubai issued a Payment Order against the respondent for AED 140 million (USD 38 million / CHF 30 million) in favour of a Dubai-based LLC. After service at an address linked to the co-debtor failed and inquiries with several Dubai authorities led to no current address, the Payment Order was published in an Arabic and an English-language newspaper. The respondent learned of the Payment Order only on 4 May 2021, when the Dubai LLC petitioned a Swiss court for exequatur.

The Swiss enforcement track ran through three instances: the first granted exequatur, the second refused it. On 13 March 2026 the Swiss Federal Supreme Court dismissed the petitioner’s appeal and confirmed the exequatur refusal.

Art. 27(2)(a) PILA – the Doctrinal Anchor

Art. 27(2)(a) PILA denies recognition to a foreign judgment where the defendant was not served in proper form according to the law of his domicile or habitual residence (unless he submitted to the proceedings unconditionally). The leading authority is BGE 143 III 225 E. 5: the requirement of proper service exists to put the defendant formally on notice of proceedings against him and to allow him to organise his defence. Where the foreign procedure failed in this protective task, recognition is refused.

What “properly served” means in cases of unknown address is the question that has divided Swiss scholarship. According to a strict view, effective service is always required. Service by publication in an official gazette or by posting at the courthouse never suffices. The lenient view holds that fictitious service may suffice where its preconditions are met both under the law of the defendant’s domicile/habitual residence and under Swiss procedural law (cf. Art. 141 CPC). The Federal Supreme Court summarised both positions but declined to choose between them (4A_157/2025, E. 3.4.4). It did not need to.

The Court’s Narrow Holding

The Federal Supreme Court formulated a minimum rule that operates regardless of which scholarly position prevails. Even assuming that fictitious service could in principle suffice, it can do so only where it is followed by a default proceeding in which the court evaluates the merits of the plaintiff’s submissions. In the Dubai Payment Order procedure, no such evaluation occurs: the court issues the Payment Order after a formal review of documents on the basis of the creditor’s one-sided submission, and a merits-based examination begins only if and when the defendant files an objection. Where the defendant – through fictitious service – never learns of the proceedings and cannot file an objection, the Payment Order becomes final without the court ever exercising independent adjudicatory activity capable of protecting the defendant’s interests. Enforcement of such a judgment in Switzerland is incompatible with the protective rationale of Art. 27(2)(a) PILA.

Does The Same Concern Under the Lugano Convention?

Under Art. 32 Lugano Convention, the foreign instrument must qualify as a “decision”. The Swiss Federal Supreme Court has held that an Italian decreto ingiuntivo declared immediately enforceable on issuance is not such a decision and cannot be recognised in Switzerland (BGE 139 III 232). It can be recognised only if the merits decision rendered after opposition has been issued and served on the debtor before the exequatur petition is filed (BGE 150 III 345). The pattern is the same one that underlies decision 4A_157/2025:

As a minimal precondition, some form of judicial scrutiny of the merits is required before a foreign court order can travel to Switzerland. Where the foreign procedure does not produce a merits decision at all – as in a pure ex parte payment order followed by silence – Switzerland is likely to refuse enforcement.

If you hold a foreign default judgment that may need to be enforced against Swiss assets – or face one being asserted against you – we can help assess the prospects and chart a strategy before exequatur is filed. Get in touch.