The Lugano Convention: What Swiss Creditors Need to Know About Italian Courts

The framework

The 2007 Lugano Convention governs jurisdiction and the recognition and enforcement of judgments in civil and commercial matters between the European Union, Switzerland, Norway and Iceland.

For Swiss creditors seeking to enforce a Swiss judgment in Italy, the Convention provides a significantly more structured framework than the domestic rules applicable to many other third-country judgments.

Its rules broadly reflect the architecture of the earlier Brussels regime, although the precise provisions and procedural requirements must be checked for each case.

What does Lugano cover?

The Convention applies principally to civil and commercial matters, subject to the exclusions set out in Article 1.

It does not generally apply to matters such as:

• 01Status and legal capacity of natural persons
• 02Matrimonial matters
• 03Wills and succession
• 04Bankruptcy and insolvency
• 05Arbitration
• 06Certain social security matters
• 07Certain maintenance and other excluded areas

Arbitral awards are therefore outside the scope of Lugano and are instead governed, in the relevant circumstances, by the 1958 New York Convention and applicable national law.

Recognition and enforcement

Under the Lugano Convention, a judgment given in one Contracting State is generally recognised in the other Contracting States without any special procedure.

However, enforcement is different from recognition.

A Swiss creditor seeking to enforce a Swiss judgment in Italy must generally obtain a declaration of enforceability in Italy under the Convention’s applicable procedural rules.

The application is made to the competent Italian court, which examines the formal requirements without reopening the merits of the Swiss judgment.

The debtor may subsequently challenge the declaration within the applicable time limit.

The exact court, documents and procedural steps depend on the nature of the judgment and the circumstances of the case.

Interim measures and urgent protection

Lugano can also be strategically important where the creditor is concerned that the debtor may dissipate or move assets.

The Convention contains specific rules concerning provisional and protective measures. Under Article 47, such measures as are available under Italian law may be sought from the Italian courts even where the Swiss courts have jurisdiction over the substance; once a declaration of enforceability is issued, it carries with it the power to proceed to protective measures.

The availability and precise form of an Italian protective measure — such as a sequestro conservativo — must nevertheless be assessed under the applicable Italian procedural rules.

For Swiss creditors dealing with a financially unstable Italian counterparty, this can make the timing of the enforcement strategy particularly important.

Documents to prepare

A Swiss creditor should normally be prepared to provide:

• 01The Swiss judgment — an authenticated or otherwise appropriately certified copy of the judgment.
• 02The Lugano certificate — the certificate issued by the court of origin in accordance with the Convention.
• 03Italian translations — where required, translations of the judgment and relevant certificate into Italian.
• 04Evidence of service — where relevant, documentation establishing service of the proceedings and/or judgment on the Italian debtor.
• 05Information on enforceability — evidence establishing that the judgment is enforceable in Switzerland, where required.

Why Lugano matters to Swiss creditors

For Swiss businesses with Italian debtors, the Lugano Convention can provide a substantially more predictable route to recovery than the domestic recognition regime applicable to many non-EU jurisdictions.

The real advantage, however, lies in combining recognition with a carefully planned Italian enforcement strategy.

Before taking action, we therefore assess both sides of the equation:

Can the Swiss judgment be recognised and enforced in Italy? And where are the debtor’s assets, and how quickly can they be reached?