Jurisdiction under the Convention: domicile, contracts, consumers and the race to court

Scope and the general rule of domicile

The Convention applies in civil and commercial matters, whatever the nature of the court or tribunal. Article 1(2) excludes the status and legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession, bankruptcy and analogous proceedings, social security and arbitration.¹ Three of these exclusions matter in daily practice between Lugano and Milan. Succession disputes between Italian heirs over Swiss accounts fall under the PILA and, on the Italian side, under the EU Succession Regulation, which Chapter E.V discusses. Bankruptcy and arbitration have their own regimes, treated later in this chapter. Everything else that a bank, a trading company, an asset manager or an employer is likely to litigate falls within the Convention, including claims for damages against directors, disputes over loans and guarantees, and maintenance claims.

The general rule is that of Article 2: persons domiciled in a contracting state shall, whatever their nationality, be sued in the courts of that state. Domicile of a natural person is determined by the internal law of the court seised (Article 59). A company or other legal person is domiciled where it has its statutory seat, its central administration or its principal place of business (Article 60).² For an Italian società per azioni with its registered office in Milan, Italy is therefore always a domicile, and a Ticino company whose central administration is in fact exercised from Milan can be sued in Italy as well. The rule links directly with the Italian doctrine of esterovestizione, which Chapter H.II described for tax law. In civil litigation, too, a Swiss company that is managed from Italy can find itself with two domiciles.

Article 3 prevents the use of exorbitant national grounds of jurisdiction against persons domiciled in another contracting state. Annex I lists them. For Switzerland, the list includes the forum of the place of attachment under Article 4 PILA, which allows a creditor who has attached assets in Switzerland to bring the action validating the attachment in Swiss courts. For Italy it lists Articles 3 and 4 of Law No. 218 of 31 May 1995, the general provisions of the Italian statute on the jurisdiction of the Italian courts.³ The consequence is important for the practice of attachment in Ticino. A creditor can attach the Lugano account of a debtor domiciled in Milan, but the action on the merits must be brought before a court that has jurisdiction under the Convention, which in most cases means an Italian court.

Contracts: Article 5(1)

The special jurisdiction for contracts allows a defendant to be sued in the courts for the place of performance of the obligation in question (Article 5(1)(a)). For the sale of goods, the place of performance is, unless otherwise agreed, the place where the goods were delivered or should have been delivered. For the provision of services, it is the place where the services were provided or should have been provided (Article 5(1)(b)).⁴ The autonomous definition, introduced by the Brussels I Regulation and taken over in 2007, gives a single forum for all claims under a sales or service contract. A steel trader in Lugano that sells goods delivered to a buyer in Brescia can be sued by the buyer in Brescia and can sue the buyer for the price there as well. Where goods are delivered to several places within a single state, the Court of Justice has given jurisdiction to the court for the principal place of delivery, determined on economic criteria, and has allowed the claimant to choose among the places of delivery if no principal place can be established.⁵

For the financial centre, the treatment of services is more important. An asset management contract between a Lugano asset manager and a client in Varese is performed, in principle, where the manager carries out the management, which is Lugano. A loan by a Lugano bank to a Milan company is a contract for the provision of services under the Court of Justice's case law, and its place of performance is, unless otherwise agreed, the place where the bank has its registered office.⁶ The special forum of Article 5(1) therefore tends to favour the Swiss service provider, which can sue its Italian client in Ticino even without a choice of court clause, unless the consumer rules apply.

Article 5(5) adds a forum for disputes arising out of the operations of a branch, agency or other establishment in the place where it is situated. An Italian bank with a branch in Lugano can be sued there for disputes arising from that branch's business. The same applies to a Lugano trading company that operates a representative office in Milan.⁷

Notes

1. LC 2007, Art. 1 (above). ↩
2. LC 2007, Art. 2, 59 and 60 (above). ↩
3. LC 2007, Art. 3 and Annex I (above), which lists for Italy "les art. 3 et 4 de la loi no 218 du 31 mai 1995" and for Switzerland Art. 4 PILA. ↩
4. LC 2007, Art. 5(1) (above). ↩
5. Court of Justice, judgment of 3 May 2007, Color Drack, C-386/05, operative part, EUR-Lex, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62005CJ0386. ↩
6. Court of Justice, judgment of 15 June 2017, Saale Kareda v Stefan Benkö, C-249/16, operative part, EUR-Lex, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62016CJ0249. ↩
7. LC 2007, Art. 5(5) (above). ↩

For general information only. This article does not constitute legal or tax advice, does not replace advice on an individual case and creates no lawyer-client relationship. It reflects the legal position as of October 2026.