Two speeds: the Brussels Ia Regulation, Brexit and the outer limits of the Convention

What Brussels Ia changed for the member states

The European Union recast the Brussels I Regulation as Regulation (EU) No 1215/2012, known as Brussels Ia, which applies to proceedings instituted on or after 10 January 2015.¹ Four changes matter for comparison with the Lugano Convention. First, Article 39 of the Regulation abolished the declaration of enforceability: a judgment given in one member state that is enforceable there is enforceable in the other member states without any declaration, on presentation of a certificate issued by the court of origin. The debtor must apply for refusal of enforcement himself. Second, Article 25 extended the effect of choice of court agreements to parties domiciled outside the Union and subjected their substantive validity to the law of the member state whose courts are chosen. Third, Article 31(2) gave priority to the court chosen in an exclusive choice of court agreement and thereby reversed Gasser. Fourth, Articles 33 and 34 allowed member state courts to stay proceedings in favour of earlier proceedings in third states, and recital 12 clarified the relationship with arbitration.

None of these changes has been taken over into the Lugano Convention. The revised Convention of 2007 corresponds to the Brussels I Regulation of 2001. Its Standing Committee decided in June 2022 to wait for the next revision of Brussels Ia before adapting it.² The result is a system with two speeds. Between Milan and Munich, a judgment travels without exequatur and an exclusive choice of court clause is protected against torpedo actions. Between Milan and Lugano, the creditor still needs a declaration of enforceability, the debtor can still delay matters by appealing against it, and the first court seised still prevails even against an exclusive choice of court clause.

Practical consequences for Lugano

The asymmetry affects how Ticino practitioners draft and litigate. Where a Lugano company contracts with an Italian counterparty, a choice of Swiss courts gives less protection against parallel proceedings than a choice of the courts of an EU member state would give within the Union. Parties who fear a torpedo therefore frequently prefer arbitration with its seat in Switzerland, which is outside the Convention altogether and whose awards circulate under the New York Convention. Where a Swiss creditor holds an Italian judgment, the exequatur procedure adds a step that a German creditor no longer needs. In most cases the delay is short, because the first-instance procedure is ex parte and the grounds for refusal are narrow. The step remains a point at which a determined debtor can intervene.

Article 64 of the Convention governs its relationship with the Brussels instruments. The Convention does not prejudice the application of the Regulation by the member states. It applies, however, in all cases in matters of jurisdiction where the defendant is domiciled in Switzerland, Norway or Iceland, or where the courts of one of those states have jurisdiction under Article 22 or 23. It applies in matters of lis pendens and related actions where proceedings are instituted in a state where the Convention but not the Regulation applies, and in matters of recognition and enforcement where either the state of origin or the state addressed does not apply the Regulation.³ An Italian court seised of a claim against a Lugano company therefore applies the Convention, while the same court seised of a claim against a German company applies the Regulation.

Notes

1. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351, 20 December 2012, p. 1; Schreiber and Weiss, Clifford Chance (above); Schreiber and Weiss, Clifford Chance (above). ↩
2. FOJ, "Lugano Convention 2007" (above). ↩
3. LC 2007, Art. 64(1) and (2) (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.