Definition and Subject Matter of the Lugano Convention
The Lugano Convention is an international treaty that regulates judicial jurisdiction, as well as the recognition and enforcement of judgments in civil and commercial matters between the member states of the European Union (EU) and certain non-EU countries—in particular Switzerland, Norway, and Iceland. Within the European area of justice, it is a core instrument for coordinating and harmonizing cross-border legal proceedings.
The Convention is essentially based on the Brussels I Regulation (Regulation [EC] No 44/2001, now replaced by the Brussels Ia Regulation [Regulation (EU) No 1215/2012]) and institutionalizes comparable rules for states outside the EU that are part of the “European Economic Area” (EEA). Its aim is to establish mutual trust in international legal relations and ensure effective enforcement of judicial decisions.
Historical Development
Lugano Convention of 1988
The original Lugano Convention of 1988 was entered into by the member states of the then-European Community and the EFTA states. It transferred the system of the “Brussels Convention of 1968” to the relationship with Iceland, Norway, and Switzerland.
Lugano Convention of 2007
In 2007, the Convention was fundamentally modernized and renewed to mirror the then current Brussels I Regulation. This version, known as the “Lugano II Convention,” remains binding today.
Contracting States
The following states have acceded to the Lugano Convention of 2007:
- Members of the European Union (EU)
- Switzerland
- Norway
- Iceland
- Denmark in its own name (as a special case with opt-out arrangement within the EU)
The list of contracting states may change in the event of expansions or withdrawals; the applicable status depends on the current ratifications.
Scope of Application
Material Scope
The Lugano Convention applies to civil and commercial matters, insofar as they are not expressly excluded from its scope. In particular, it does not apply to:
- Tax and customs matters
- Administrative matters
- Matters of personal status, matrimonial property regimes, and inheritance
- Insolvency proceedings (regulated especially by separate European insolvency regulations)
- Arbitration
Territorial Scope
The Convention covers cases with an international element, provided that courts of different contracting states are involved, or cross-border decisions are to be enforced.
Systematics and Legal Content
Rules on Judicial Jurisdiction
The Lugano Convention contains comprehensive provisions on international judicial jurisdiction. Key points include:
- The general principle of jurisdiction based on the defendant’s domicile (Art. 2 et seq.)
- Specific jurisdictions, for example for contractual and non-contractual obligations, maintenance matters, as well as insurance, consumer, and employment law (Art. 5 et seq.)
- Exclusive and partially special jurisdictions, e.g., for property law, company law, entries in public registers (Art. 22)
- Choice of court agreements and their prerequisites (Art. 23)
- Duty of the seized court to examine its own international jurisdiction
Recognition and Enforcement of Judgments
Principle of Mutual Recognition
Judgments rendered by courts of a contracting state are generally recognized in the other contracting states without the need for a separate recognition procedure (Art. 33).
Declaration of Enforceability (Exequatur Proceedings)
Enforcement of a judgment requires a formal declaration of enforceability (“exequatur”), for which a simplified procedure is provided in most contracting states (Art. 38 et seq.).
Grounds for Refusal of Recognition and Enforcement
Recognition or enforcement may only be refused on narrowly defined grounds, in particular:
- Manifest breach of public policy (“ordre public”)
- Conflicting decisions in the same matter
- Violation of the right to be heard or of defense rights
Relationship to Other International Treaties
According to the principle of specialty, the Lugano Convention takes precedence over older treaties, provided these govern the same subject matter. If there are prevailing bi- or multilateral treaties, the Convention may be subsidiary (Art. 64).
Relationship to the Brussels Ia Regulation
Within the European Union, the Brussels Ia Regulation has priority. Between EU member states and other contracting states of the Lugano Convention, the Lugano regime applies. In particular, for Switzerland, Norway, and Iceland, the Lugano Convention represents an important coordination instrument for cross-border civil and commercial matters with the EU area, especially after Brexit.
Practical Significance
The primary purpose of the Lugano Convention is to ensure legal certainty and predictability in cross-border legal cases. Businesses, individuals, and institutions can rely on judicial decisions being enforceable abroad, provided the parties are resident in contracting states.
After the UK’s exit from the EU (Brexit), the future participation of the United Kingdom in the Lugano system is also an important topic of discussion.
Reforms and Future Prospects
Legal developments at the European level have led to continuous adaptation of the Lugano Convention, particularly concerning the harmonization and modernization of rules on jurisdiction and enforcement. Future amendments may arise in particular due to further developments in EU legislation and accession negotiations by additional countries.
References and Sources
- Lugano Convention of 30 October 2007 (OJ L 339/3 of 21.12.2007)
- Brussels Ia Regulation (Regulation (EU) No 1215/2012)
- European Commission: Official information on the Lugano Convention)
Note: This article provides a comprehensive but summary overview of the Lugano Convention. In individual cases, it is always recommended to consult the current version of the Convention and, where applicable, national implementing legislation.
Frequently Asked Questions
How does the Lugano Convention regulate international jurisdiction of courts?
The Lugano Convention includes detailed provisions on international court jurisdiction in civil and commercial matters. In principle, the so-called “domicile principle” applies, meaning that persons, regardless of their nationality, can be sued before the courts of the state in which they are domiciled. In addition, there are special courts, for example for contractual claims (at the place of performance of the contract), tort claims (at the place where the harmful event occurred), and other exceptions such as actions relating to security interests and rights in rem in immovable property (at the location of the property). The Convention also contains special rules for insurance, consumer, and employment disputes, in order to provide particular protection for the weaker party by mandating jurisdiction in some cases. Courts are required to review their jurisdiction ex officio and must stay or dismiss cases if parallel proceedings are pending and the Convention prescribes priority rules.
What role do jurisdiction agreements play under the Lugano Convention?
The Lugano Convention generally recognizes choice of court agreements, provided they are concluded in writing or are in accordance with established practice between the parties. Parties may thus agree in advance on a specific court to decide on their claims in the event of a dispute. However, there are restrictions: In consumer, employment, and insurance matters, stricter rules apply with regard to the validity and admissibility of such agreements to protect the weaker party. Such agreements are only valid under certain conditions enumerated in the Convention, such as if they are concluded after the dispute has arisen. The validity of a jurisdiction clause is determined by the law of the designated court, and jurisdiction by agreement takes precedence over general and special jurisdictions unless one of the exceptions applies.
How does the Lugano Convention regulate the recognition and enforcement of foreign judgments?
The Lugano Convention obliges the contracting states to recognize and declare enforceable court decisions from other member states without a re-examination of the substance (prohibition of révision au fond). Recognition may only be refused for reasons set out in Articles 34 and 35, including breach of public policy (ordre public), improper service in judgments by default, or incompatibility with earlier decisions. The simplified enforcement procedure requires merely a formal declaration of enforceability (“exequatur”) to be applied for in the enforcing state, which should be granted without substantive review of the judgment. The grounds for refusal of declaration of enforceability are exhaustively listed, creating a high level of legal certainty and predictability.
How are parallel proceedings and the so-called “lis pendens principle” regulated under the Lugano Convention?
The Lugano Convention establishes the lis pendens principle to prevent conflicting decisions and “forum shopping.” Once a dispute is pending before a court of a contracting state, courts of other contracting states must generally stay proceedings until the jurisdiction of the court first seized is clarified. If jurisdiction is confirmed, the courts seized later will decline the case. This system ensures procedural consistency, legal certainty, and prevents the simultaneous pursuit of the same claim in several states. Special provisions exist for related actions, in order to promote consistent or compatible decisions.
What impact does the Lugano Convention have on consumer protection?
Consumer protection is given high priority in the Lugano Convention. Where consumers are a party to a contract, they can bring actions either in their own country of residence or in the state of their contracting partner. If the business brings a claim against the consumer, only the court of the consumer’s domicile has jurisdiction. Deviating jurisdiction agreements are valid only under certain restrictive conditions, for example, if they are concluded after a dispute has arisen, or if they are more favorable for the consumer. The enhanced protection is intended to prevent consumers from being forced, through unfavorable contractual clauses, to bring actions in distant or unfamiliar countries.
Does the Lugano Convention apply to arbitration proceedings and arbitration agreements?
The Lugano Convention expressly does not apply to arbitration proceedings and related matters. This concerns both the jurisdiction of the courts with regard to arbitration-related disputes and the recognition and enforcement of arbitral awards. Arbitration agreements and their effects remain governed by the respective national arbitration laws of the contracting states and international rules such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. However, overlaps between court proceedings within the scope of the Lugano Convention and arbitration can give rise to complex delimitation questions that must be interpreted on a case-by-case basis.
What is the significance of the Lugano Convention in relation to the European rules on jurisdiction and enforcement?
The Lugano Convention is closely modeled on the Brussels Ia Regulation (EU Regulation No. 1215/2012) and serves as a legal bridge for cooperation between EU member states and the EFTA countries (Switzerland, Norway, Iceland, currently not the United Kingdom). In relations between EU states themselves, however, the Brussels Ia Regulation takes precedence. In respect of third countries without contractual arrangements, the relevant state’s own private international law applies, which may give rise to specific conflict-of-law questions in multiparty situations. Against this background, the Lugano Convention ensures that large parts of European civil procedure law remain applicable beyond the EU and thus enables legal certainty and efficiency for cross-border proceedings in the European Economic Area.
