Service of documents, taking of evidence and the sovereignty barrier

Why service matters

A judgment is only as good as the service of the document that started the proceedings. Under Article 34(2) of the Convention, recognition is refused 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.¹ In Swiss–Italian practice, defective service is the most frequent ground on which debtors resist the recognition of default judgments and payment orders. The rules on service therefore deserve as much attention as the rules on jurisdiction.

The Hague Service Convention and the Swiss declarations

Service between Switzerland and Italy is governed by the Hague Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters of 15 November 1965 (SR 0.274.131). It entered into force for Italy on 24 January 1982 and for Switzerland on 1 January 1995.² The Convention establishes a system of central authorities. Switzerland designated the cantonal authorities as central authorities for documents to be served in their territory and the Federal Office of Justice as the coordinating authority. A request for service in Lugano is therefore addressed to the Ticino central authority, which arranges service through the competent court or debt enforcement office.³ In its declaration on Article 5(3) of the Convention, Switzerland requires that a document which the addressee does not accept voluntarily be drawn up in the language of the authority addressed, that is German, French or Italian, or be accompanied by a translation. Documents for service in Ticino must therefore be in Italian or accompanied by an Italian translation. This is an advantage for Italian creditors, whose documents need no translation, and a cost for Swiss creditors in other cantons whose documents for Ticino must be translated.

Switzerland declared that it opposes the use on its territory of the channels of transmission under Articles 8 and 10 of the Convention.⁴ Foreign diplomatic and consular officers may not serve documents directly on persons in Switzerland who are not nationals of the sending state, and foreign courts, bailiffs and parties may not serve documents by post or through Swiss officials directly. An Italian court that sends a writ of summons by registered post to a defendant in Lugano has not served it validly, and a default judgment based on such service is exposed to refusal under Article 34(2) of the Lugano Convention.⁵ Italy, by contrast, has not objected to postal service under Article 10(a), since its declarations concern only the costs of service under Articles 5 and 12. Swiss documents can therefore be sent by post to addressees in Italy where Swiss procedural law allows it. The central authority channel remains the safer course for a Swiss court or creditor, because it produces a formal certificate of service.⁶

Protocol No. 1 to the Lugano Convention adds a further channel. Under its Article I(2), judicial and extrajudicial documents drawn up in one state bound by the Convention may be sent directly by the public officers (officiers ministériels) of that state to the public officers of the state in which the addressee is found, unless the state of destination has objected by declaration to the depositary. For all other cases, Article I(1) refers to the conventions applicable between the states concerned, which for Switzerland and Italy means the Hague Convention. Article I(3) reserves the EU Service Regulation for relations among the member states.⁷

Notes

1. LC 2007, Art. 34(2) (above). ↩
2. Convention relative à la signification et la notification à l'étranger des actes judiciaires et extrajudiciaires en matière civile ou commerciale, conclue à La Haye le 15 novembre 1965, RS 0.274.131, at LexFind, https://www.lexfind.ch/tolv/161203/fr (dates of entry into force for Switzerland and Italy). ↩
3. HCCH, status table of the Service Convention, declarations of Switzerland, https://www.hcch.net/en/instruments/conventions/status-table/notifications/? csid=424&disp=resdn (declaration on Art. 5(3)); U.S. Department of State (below), on translation into German, French or Italian according to the place of service. ↩
4. Hague Service Convention, RS 0.274.131, Swiss declaration on Art. 8 and 10 (above); U.S. Department of State, "Judicial Assistance Country Information: Switzerland", https://travel.state.gov/content/travel/en/legal/Judicial-Assistance-Country-Information/ Switzerland.html. ↩
5. HCCH, declarations of Switzerland on the Service Convention (above), declaration on Art. 8 and 10 ("opposed to the use in its territory of the methods of transmission provided for in Articles 8 and 10"); LC 2007, Art. 34(2) (above). ↩
6. HCCH, status table of the Service Convention, https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (Italy: entry into force 24 January 1982, declarations only), and declarations of Italy, https://www.hcch.net/en/instruments/conventions/status-table/notifications/? csid=406&disp=resdn. ↩
7. LC 2007, Protocol No. 1, Art. I(1) to (3) (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 August 2025.