Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland) - Case removed from the Court's List at the request of Belgium

INTERNATIONAL COURT OF JUSTICE

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Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org

Press Release
Unofficial

No. 2011/11
12 April 2011

Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters
(Belgium v. Switzerland)

Case removed from the Court’s List at the request of Belgium

THE HAGUE, 12April2011. Further to a request to such effect from the Kingdom of

Belgium, by Order dated 5April2011, the Intern ational Court of Justice(ICJ), the principal
judicial organ of the United Nations, has re moved from its General List the case concerning
Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v.
Switzerland).

It is recalled that on 21December2009, th e Kingdom of Belgium instituted proceedings
against the Swiss Confederation in respect of a dispute concerning

“the interpretation and application of th e Lugano Convention of 16September1988
on jurisdiction and the enforcement of judgments in civil and commercial matters . . .,

as well as the application of the rules of general international law governing the
exercise of State authority, in particular injudicial matters[, and] relat[ing] to the
decision by Swiss courts not to recognize a judgment of the Belgian courts and not to
stay proceedings which were later initiated in Switzerland on the subject of the same
dispute”.

By letter dated 21March2011 and received in the Registry the same day by facsimile, the
Agent of Belgium, referring to Article89 of the Rules of Court, informed the Court that his
Government “in concert with the Commission of the European Union, considers that it can
discontinue the proceedings instituted [by Belgium] against Switzerland” and requested the Court

“to make an order recording Belgium’s discontinua nce of the proceedings and directing that the
case be removed” from the Court’s General List.

In his letter, the Agent cited as the reas on for the Belgian Government’s request to

discontinue the proceedings the Preliminary Objections raised in the case by Switzerland on
18 February 2011, following the filing of Belgium’s Memorial on 23 November 2010. In the letter,
the Belgian Government explains in particular that it has taken note of the fact that in paragraph 85
of its Preliminary Objections, “Switzerland states ... that the reference by the [Swiss] Federal
Supreme Court in its 30 September 2008 judgment to the ‘non-recognizability’ of a future Belgian

judgment does not have the force of res judicata and does not bind either the lower cantonal courts
or the Federal Supreme Court itself, and that there is therefore nothing to prevent a Belgian
judgment, once handed down, from being recognized in Switzerland in accordance with the
applicable treaty provision”. - 2 -

A copy of the letter from the Agent of Belgium was immediately communicated to the Agent
of the Swiss Confederation, who was informed that the time-limit provided for in Article89,

paragraph2, of the Rules of Court, within which Switzerland might state whether it opposed the
discontinuance of the proceedings, had been fixed as Monday 28 March 2011.

Since, within the time-limit thus fixed, the Swiss Confederation did not oppose the said

discontinuance, the Court, placing on record the discontinuance by the Kingdom of Belgium of the
proceedings, ordered that the case be removed from the List on 5 April 2011.

*

History of the proceedings

In its Application of 21December2009, Belgiu m stated that the dispute before the Court
“has arisen out of the pursuit of parallel judici al proceedings in Belgium and Switzerland” in
respect of the civil and commercial dispute between the “main shareholders in Sabena, the former

Belgian national airline now in bankruptcy”. Th e Swiss shareholders concerned were SAirGroup
(formerly Swissair) and its subsidiary SAirLines; the Belgian shareholders were the Belgian State
and three companies in which it holds shares.

The Applicant recalled that “[i]n connection with the Swiss companies’ acquisition of equity
in Sabena in 1995 and with their partnership with the Belgian shareholders, contracts were entered
into, between1995 and 2001, for among other thi ngs the financing and joint management of
Sabena” and that this set of contracts “provided for the exclusive jurisdiction of the Brussels courts

in the event of dispute and for the application of Belgian law”.

Belgium explained in its Application that, “[o]n 3 July 2001, the Belgian shareholders,
believing that the Swiss shareholders had breached their contractual commitments and

non-contractual duties, thereby causing injury to the Belgian shareholders” sued the Swiss
shareholders in the Commercial Court of Brussel s, seeking damages to co mpensate for the lost
investments and for the expenses incurred “as a result of the defaults by the Swiss shareholders”.
After finding jurisdiction in the matter, that court “found various instances of misconduct on the

part of the Swiss shareholders but rejected the Belgian shareholders’ claims for damages”. Both
Parties appealed against this decision to the Court of Appeal of Brussels, which in 2005 by partial
judgment upheld the Belgian courts’ jurisdiction over the dispute on the basis of the Lugano
Convention. The proceedings on the merits remained pending before that court. Belgium stated

that in various proceedings concerning the application for a debt-restru
cturing moratorium (sursis
concordataire) submitted by the Swiss companies to the Zurich courts, the Belgian shareholders
had sought to declare their debt claims against th em. It asserted, however, that the Swiss courts,

including in particular the Federal Supreme Cour t, had refused to recognize the future Belgian
decisions on the civil liability of the Swiss shareholders, or to stay their proceedings pending the
outcome of the Belgian proceedings. According to the Applicant, these refusals violated various
provisions of the Lugano Convention and “the ru les of general international law governing the

exercise by States of their authority, in particular in judicial matters”.

To found the jurisdiction of the Court, Belgiu m cited in its Application solely the unilateral
declarations recognizing the compulsory jurisdicti on of the ICJ made by the Parties pursuant to

Article36, paragraph2, of the Statute of the Court on 17June1958 (Belgium) and 28July1948
(Switzerland). The Applicant noted that there was no dispute resolution clause in the Lugano
Convention placing conditions on recourse to the ICJ and that the Court of Justice of the European
Communities was without jurisdiction in the area. - 3 -

At the end of its Application, Belgium requested the Court to adjudge and declare that:

“(1) the Court has jurisdiction to entertain the dispute between the Kingdom of
Belgium and the Swiss Confederation concerning the interpretation and
application of the Lugano Convention of 16September1988 on jurisdiction and
the enforcement of judgments in civil a nd commercial matters, and of the rules of

general international law governing the exercise by States of their authority, in
particular in judicial matters;

(2) Belgium’s claim is admissible;

(3) Switzerland, by virtue of the decision of its courts to hold that the future judgment
in Belgium on the contractual and non- contractual liability of SAirGroup and
SAirLines to the Belgian State and to Zephyr-Fin, S.F.P. and S.F.I. (since merged,

having become SFPI) will not be recognized in Switzerland in the SAirGroup and
SAirLines debt-scheduling proceedings, is breaching the Lugano Convention, in
particular: Articles1, second paragra ph, provision(2); 16(5); 26, first
paragraph; and 28, thereof;

(4) Switzerland, by refusing to stay the pr oceedings pursuant to its municipal law in
the disputes between, on the one hand, the Belgian State and Zephyr-Fin, S.F.P.
and S.F.I. (since merged, having become SFPI) and, on the other, the liquidation

estates (masses) of SAirGroup and SAirLines, companies in debt-restructuring
liquidation (liquidation concordataire), specifically on the ground that the future
judgment in Belgium on the contractual and non-contractual liability of
SAirGroup and SAirLines to the Belgian State and Zephyr-Fin, S.F.P. and S.F.I.

(since merged, having become SFPI) will not be recognized in Switzerland in the
SAirGroup and SAirLines debt-scheduling proceedings, is breaching the rule of
general international law that all State aut hority, in particular in judicial matters,
must be exercised reasonably;

(5) Switzerland, by virtue of the refusal by its judicial authorities to stay the
proceedings in the disputes between, on the one hand, the Belgian State and
Zephyr-Fin, S.F.P. and S.F.I. (since merged, having become SFPI) and, on the

other, the liquidation estates of SAirGroup and SAirLines, companies in
debt-restructuring liquidation, pending the conclusion of the proceedings currently
taking place in the Belgian courts concer ning the contractual and non-contractual
liability of SAirGroup and SAirLines to the first-cited parties, is violating the

Lugano Convention, in particular: Articles1, second paragraph, provision(2);
17; 21; and22, thereof; as well as Article1 of Protocol No.2 on the uniform
interpretation of the Lugano Convention;

(6) Switzerland’isnternationarlesponsibility has been engaged;

(7) Switzerland shall take all appropriate steps to enable the judgment by the Belgian
courts on the contractual and non-c ontractual liability of SAirGroup and

SAirLines to the Belgian State and Zephyr-Fin, S.F.P. and S.F.I. (since merged,
having become SFPI) to be recognized in Switzerland in accordance with the
Lugano Convention for purposes of the debt-scheduling proceedings for
SAirLines and SAirGroup;

(8) Switzerland shall take all appropriate step s to ensure that the Swiss courts stay
their proceedings in the disputes between, on the one hand, the Belgian State and
Zephyr-Fin, S.F.P. and S.F.I. (since merged, having become SFPI) and, on the

other, the liquidation estates of SAirGroup and SAirLines, companies in - 4 -

debt-restructuring liquidation, pending the conclusion of the proceedings currently
taking place in the Belgian courts concer ning the contractual and non-contractual

liability of SAirGroup and SAirLines to the first-cited parties”.

By Order of 4 February 2010, the Court fi xed 23 August 2010 as the time-limit for the filing
of a Memorial by Belgium and 25 April 2011 as the time-limit for the filing of a Counter-Memorial

by Switzerland.

By Order of 10August2010, the President, at the Belgian Government’s request and after
having ascertained the views of the Government of the Swiss Confederation, extended the

time-limits for the filing of the Kingdom of Belg ium’s Memorial and the Swiss Confederation’s
Counter-Memorial to 23 November 2010 and 24 October2011, respectively. The Memorial was
filed within the time-limit thus prescribed; on 18February2011, the Swiss Confederation raised
preliminary objections in the case in respect of the jurisdiction of the Court and the admissibility of

the Application.

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The full text of the Order will be available shortly on the Court’s website (www.icj-cij.org).

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Information Department:

Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department (+31 (0)70 302 2336)

Mr. Boris Heim, Information Officer (+31 (0)70 302 2337)
Ms Joanne Moore, Associate Information Officer (+31 (0)70 302 2394)
Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396)

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