Recognition and enforcement: exequatur, refusal and the Italian payment order

Automatic recognition and the notion of a judgment

Title III of the Convention separates recognition from enforcement. Under Article 33, a judgment given in a contracting state is recognized in the other contracting states without any special procedure being required. Recognition means that the judgment has the same effects as in the state of origin, above all the effect of res judicata. A Swiss court before which an Italian judgment is invoked as a preliminary question can recognize it incidentally.¹ Article 32 defines a judgment broadly as any judgment given by a court or tribunal of a contracting state, whatever it may be called, including a decree, order, decision or writ of execution, as well as the determination of costs by an officer of the court. Court settlements and authentic instruments are enforced under Articles 57 and 58, so that an Italian notarial deed with an enforceable clause (atto pubblico with formula esecutiva) can in principle be enforced in Switzerland.

The broad definition has one important limit, which the Court of Justice established in Denilauler in 1980 and which the Swiss courts follow. A decision authorizing provisional or protective measures that was given without the defendant having been summoned, and that is intended to be enforced without prior service, falls outside the recognition regime, because the system of the Convention presupposes adversarial proceedings at some stage in the state of origin.² The same reasoning determines the fate of the Italian decreto ingiuntivo in Switzerland.

Grounds for refusal

Articles 34 and 35 list the grounds on which recognition may be refused. A judgment is not recognized if recognition is manifestly contrary to public policy in the state addressed. Nor is it recognized if the defendant was not served with the document instituting the proceedings in sufficient time and in such a way as to enable him to arrange for his defence, unless he failed to challenge the judgment when it was possible for him to do so. Further grounds apply if the judgment is irreconcilable with a judgment between the same parties in the state addressed, or if it is irreconcilable with an earlier judgment of another state that fulfils the conditions for recognition.³ Under Article 35, recognition is also refused if the court of origin violated the protective rules for insurance and consumer contracts or the exclusive jurisdictions of Article 22. Beyond these cases, the jurisdiction of the court of origin may not be reviewed, and Article 36 prohibits any review of the substance.

The consumer rule in Article 35 has practical weight for Lugano banks. A Ticino judgment against an Italian consumer client, given by a court that accepted jurisdiction on the basis of a choice of court clause in breach of Article 17, can be refused recognition in Italy. A bank that wins in Lugano on the basis of its general terms and conditions may thus hold a judgment that cannot be enforced against the client's assets in Italy. The public policy ground, on the other hand, is applied narrowly on both sides of the border. In a decision of 31 August 2007 the Federal Supreme Court rejected a public policy objection against an Italian decision and recalled that differences between foreign and Swiss law alone do not violate Swiss public policy.⁴

Notes

1. LC 2007, Art. 33; Art. 32, 57 and 58 (above). ↩
2. Court of Justice, judgment of 21 May 1980, Denilauler v SNC Couchet Frères, 125/79, operative part, EUR-Lex, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61979CJ0125. ↩
3. LC 2007, Art. 34; Art. 35 and 36 (above). ↩
4. Federal Supreme Court, judgment 4A_80/2007 of 31 August 2007, summary at Omnilex, https://app.omnilex.ai/fr/sources/court-decision/ch-bger--4a-80-2007/4a802007. ↩

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 August 2025.