The practitioner's toolkit: creditor and defendant on either side of the border

Choosing the forum before the dispute

Most cross-border disputes are decided when the contract is drafted. A Lugano bank, asset manager or trading house that deals with Italian counterparties has three options. It can choose the Ticino courts, which gives it proceedings in Italian before a court that knows Swiss law, but which leaves it exposed to a torpedo action in Italy and requires exequatur for enforcement there. It can choose arbitration with its seat in Lugano or elsewhere in Switzerland, which avoids the Convention's weaknesses and gives an award enforceable under the New York Convention. Or it can accept Italian jurisdiction, which may be sensible where the counterparty's assets are in Italy and the claim is likely to be enforced there. With consumers, the choice is restricted by Articles 15 to 17 of the Convention. A bank whose relationship with an Italian client was acquired and managed with activities directed at Italy must expect to litigate in Italy whatever its general terms say.

The creditor in Switzerland against an Italian debtor

A Swiss creditor with a claim against a debtor in Lombardy will first check whether the debtor has assets in Switzerland. If so, an attachment in Ticino under the foreigner's ground can secure them quickly, provided the claim has a sufficient connection with Switzerland. The action on the merits must then be brought before a court with jurisdiction under the Convention, which may be the Ticino court at the place of performance or under a choice of court clause. If the debtor's assets are in Italy, the creditor may prefer to sue in Italy directly or to use the Italian payment order procedure, which yields an enforceable title faster than ordinary proceedings. A Swiss judgment can be declared enforceable by the Corte d'appello, and the Italian search of financial databases under Article 492-bis c.p.c. then helps to locate accounts.

The creditor in Italy against assets in Ticino

An Italian creditor who holds a final Italian judgment or a final decreto ingiuntivo can apply for an attachment of the debtor's Lugano assets under Article 271(1)(6) DEBA, with incidental exequatur under Article 271(3) DEBA. He can also start debt enforcement in Ticino and apply for definitive setting aside of the objection. A creditor whose decreto ingiuntivo was declared provisionally enforceable ex parte must wait for the adversarial stage before using it in Switzerland. Where fraud is involved, a criminal complaint in Italy followed by a request for mutual assistance can freeze the Lugano accounts and, at the end, lead to their handover under Article 74a IMAC.

The defendant

A defendant on either side of the border has his own tools. He can contest jurisdiction, in particular under the consumer and employment rules, and he can resist recognition on the grounds of Articles 34 and 35, of which defective service is the most frequent. Against a Swiss attachment, he can file an objection within ten days and claim damages under Article 273 DEBA if the attachment was unjustified. In mutual assistance proceedings, the account holder can appeal against the closing order to the Federal Criminal Court and invoke the fiscal reservation or the principle of proportionality. A defendant who expects to be sued may also consider filing first in a forum of his choice, since the Lugano Convention still gives priority to the court first seised even against a choice of court clause.

For the practitioner. A checklist for Swiss–Italian litigation and enforcement:

• Determine whether the matter falls within the Lugano Convention (civil and commercial) or within an exclusion (succession, insolvency, arbitration).
• Check the domicile of each party under Articles 59 and 60, including the place of central administration of companies.
• Examine the consumer rules (Articles 15 to 17) for every private client, with a record of how the relationship was acquired and where meetings took place.
• For employment disputes with cross-border commuters, remember that the employer must sue in the employee's state of domicile.
• In a foreseeable dispute, consider filing first, since Article 31(2) Brussels Ia does not apply between Switzerland and Italy.
• Serve documents through the Hague central authorities, in Italian for Ticino, and never by post into Switzerland.
• Do not take evidence or hand over documents for foreign proceedings in Switzerland without a Swiss order or authorization (Article 271 SCC).
• Before relying on an Italian payment order in Switzerland, verify that it was served properly and that the debtor had an adversarial opportunity to contest it.
• Use the attachment early, name specific banks, and plan its prosecution within ten days before the competent court.
• For insolvency, apply for recognition under Articles 166 ff. PILA and consider whether the ancillary bankruptcy can be waived.
• Where crime is involved, coordinate the civil claim with criminal complaints and mutual assistance, and assert victims' claims before confiscated assets are shared.

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.