Lis Pendens under the Lugano Convention in Switzerland

Few things complicate a cross-border dispute as reliably as a second set of proceedings in the same matter: The same contract, the same parties, the same money — but one action pending in Switzerland and another in Paris, Milan or Frankfurt. Each party naturally prefers its own forum: for the language, the procedure, the judges, sometimes simply for the delay. The result is a race to the courthouse, and every developed system of private international law needs a rule for deciding who wins it.

Within Europe, that rule is supplied by the Lugano Convention, which binds Switzerland to the EU Member States (as well as Norway and Iceland) and mirrors the Brussels regime. Switzerland is not an EU member, so the Brussels Ia Regulation does not apply here — but the Lugano Convention produces a closely parallel system of jurisdiction, recognition and, for present purposes, lis pendens: the doctrine that resolves competing parallel actions.

This article sets out how lis pendens works when a Swiss court is involved, where Swiss procedural law fills the gaps the Convention deliberately leaves open, and what the Federal Supreme Court's recent leading decision, BGer 4A_481/2025, adds to the picture.

The Convention's priority rule: strictly first in time

The mechanism is Art. 27 of the Lugano Convention. Where proceedings involving the same cause of action and the same parties are brought before courts of different Convention States, any court other than the court first seised must stay its proceedings of its own motion until the jurisdiction of the court first seised is established — and must then decline jurisdiction in its favour.Three features of this rule deserve emphasis, because they regularly surprise counsel from outside the Lugano area.

• It is strictly chronological. The rule knows no forum non conveniens, no weighing of which court is better placed. First seised wins, full stop — even by a margin of days.
  

• It is blind to the merits of jurisdiction — at least initially. The court second seised does not examine whether the court first seised actually has jurisdiction; it stays and waits for that court to decide the point itself. This is what makes the so-called "torpedo" possible: a party expecting to be sued in one forum races to a slow court elsewhere, seeking a negative declaration, and thereby freezes the "natural" forum for as long as the first court takes to rule on its own jurisdiction.
  

• A choice-of-court clause does not, by itself, break the deadlock. Unlike the recast Brussels Ia Regulation, which since 2015 gives priority to the designated court notwithstanding an earlier filing elsewhere (Art. 31(2) Brussels Ia), the Lugano Convention was never updated to match. Under Lugano, even the court designated by an exclusive jurisdiction clause must, if seised second, stay in favour of the court first seised. A well-drafted Swiss forum clause therefore protects less against torpedo tactics than clients often assume — which makes the question of when the Swiss court was seised all the more important.

When is a Swiss court "seised"? The Convention hands over to national law

Everything, then, turns on timing — and here the Convention makes a deliberate division of labour. Art. 30 Lugano Convention provides an autonomous rule: a court is deemed seised when the document instituting the proceedings is lodged with it, provided the claimant does not subsequently fail to take the steps required for service. The 2007 revision introduced this rule precisely to replace the older approach, under which the moment of definitive pendency was left entirely to each State's law, with predictably divergent results.

But Art. 30 Lugano Convention fixes only the moment; it does not say which act institutes proceedings in any given national system. As the Federal Supreme Court has framed it, the provision equalises the effects of different national regimes without unifying them, and it remains for the law of the forum to determine the formalities required for definitive seisin (BGer 4A_481/2025, E. 4.5.4, with reference to BGE 144 III 175 E. 5.1.1). The Court of Justice of the EU takes the same view for the parallel Brussels rules: it does not interpret national procedural law and leaves the national court to determine whether a given act creates pendency (E. 4.5.4, citing HanseYachts, C-29/16, and Caves Krier, C-379/11).

For Switzerland, the answer lies in Art. 62 CPC: proceedings become pending upon the filing of the conciliation request, the statement of claim, or the joint divorce petition — that is, with the first procedural act, which in ordinary Swiss civil procedure is usually the mandatory conciliation request. The CJEU confirmed in Schlömp (C-467/16) that this counts for Convention purposes: a Swiss conciliation authority is a "court" within the meaning of Art. 62 LC, so the filing of the conciliation request already seises the Swiss forum under Art. 27 and 30 LC (BGer 4A_481/2025, E. 4.5.6). The functional test that has emerged from the European case law asks whether the first procedural act forms a functional unity with the subsequent proceedings on the merits, in a phase that is in principle adversarial (E. 4.5.6, with reference to the CJEU's Winderwill judgment, C-516/24, of 12 March 2026). A free-standing evidentiary measure with no link to a later action on the merits — say, precautionary evidence-taking under Art. 158 CPC — does not create pendency (E. 4.5.6, citing HanseYachts).The practical upshot: a Swiss claimant can secure priority remarkably early, often with a one-page conciliation request.

The Swiss "life-line": Article 63 CPC

Swiss procedure goes a step further, and this is where it becomes distinctive. What happens if the first filing fails — because the court lacked jurisdiction, or because the claimant chose the wrong type of procedure? Under many procedural systems, that first attempt simply evaporates and the claimant starts again, with a new — later — date.

Not in Switzerland. Under Art. 63 CPC, where a submission is withdrawn or declared inadmissible for lack of jurisdiction, or because the wrong type of procedure was used, and the same claim is re-filed within one month before the competent court or in the correct procedure, the proceedings are deemed introduced on the date of the first filing. Doctrine speaks of a back-dating or perpetuation of pendency: the litigant is treated as though the initial defect had never occurred. The mechanism does double duty — it preserves not only the procedural priority date but also the substantive effects tied to commencement of the action, including prescription and forfeiture periods; its purpose, in the Federal Supreme Court's words, is to avoid depriving a litigant of a decision on the merits through excessive formal rigour (BGer 4A_481/2025, E. 5.2, referring to BGE 151 III 217 and BGE 141 III 481)

Since 1 January 2025, the CPC revision has added a further safeguard: a submission erroneously lodged in time with a Swiss court lacking jurisdiction is deemed filed in time and is forwarded ex officio to the competent Swiss court (Art. 143 para. 1bis CPC); under the revised Art. 63 para. 1 CPC, the forwarded action likewise counts as introduced on the date of the first filing — in that scenario, no re-filing within the one-month period is needed at all. Note, however, that the ex officio forwarding applies to the wrong court, not to the wrong type of procedure: a claimant whose summary request fails must still re-file within the month.

Outside the Convention: Article 9 PILA

The Lugano regime governs where the parallel proceedings are pending in Convention States. Where the competing action is pending elsewhere — New York, Singapore, Dubai — Swiss courts apply Art. 9 of the Private International Law Act (PILA) instead, and the logic changes markedly. The Swiss court stays its proceedings only if the foreign action on the same subject matter between the same parties was pending first and the foreign court can be expected to render, within a reasonable time, a decision capable of recognition in Switzerland (Art. 9 para. 1 PILA). The strict chronological automatism of Art. 27 LC gives way to a recognition prognosis — a materially higher hurdle for the party invoking the foreign action. For determining when the Swiss action became pending, Art. 9 para. 2 PILA looks to the first procedural act necessary to commence the action, the conciliation request sufficing — a deliberately early anchor that parallels the CPC rules described above.

For foreign counsel, the classification question — Lugano or PILA — is therefore the first question, and it changes both the test and the tactics.

The open question — and how BGer 4A_481/2025 answered it

Until this summer, one point in this architecture remained genuinely unsettled: does the Art. 63 CPC life-line operate within the Lugano Convention at all? The Convention contains no equivalent mechanism, and a court could plausibly reason — as the Geneva Cour de justice in fact did — that a purely domestic back-dating rule cannot dictate priority as against a court of another Convention State. And even within Swiss law, doctrine was divided on a second point: does Art. 63 CPC apply where the failed first filing was a request for summary "clear case" relief under Art. 257 CPC, which fails not for want of jurisdiction but because the case turned out not to be "clear"? A substantial body of commentary said no (BGer 4A_481/2025, E. 5.2, citing inter alia the Berner Kommentar and the Sutter-Somm commentary).

In BGer 4A_481/2025 of 5 June 2026 (First Civil Law Chamber, five-judge panel, designated for official publication), the Federal Supreme Court answered both questions in the claimant's favour. The facts were a textbook race: a Geneva-seated bank sought summary clear-case relief in Geneva in November 2020 against a borrower domiciled in an EU Member State, under a loan governed by Swiss law with an exclusive Geneva forum clause. The request was declared inadmissible in August 2021 because the case was not "clear". Meanwhile, in February 2021, the borrower had sued in Paris for a declaration that the agreements were void. The bank re-filed in Geneva — conciliation request in September 2021, action in March 2022 — and the borrower invoked the earlier Paris filing to have the Swiss proceedings stayed. The Geneva Cour de justice granted the stay.

The Federal Supreme Court reversed. First, it held that Art. 63 CPC operates within the Lugano framework: precisely because Art. 30 LC refers back to the lex fori to determine when proceedings are engaged, the back-dating effect of Art. 63 CPC is simply part of Swiss law's answer to the Art. 30 LC question. The deposit of the first act within the meaning of Art. 63 CPC corresponds to the first act engaging the procedure within the meaning of Art. 30 LC (E. 4.5.7). Second, it held that Art. 63 CPC applies where a clear-case request has been declared inadmissible under Art. 257 para. 3 CPC, rejecting the contrary doctrinal view chiefly on historical-interpretation grounds: the clear-case procedure is a route freely open to the claimant, and one who chooses it and fails should not thereby forfeit priority (E. 5.1, 5.5).

Applied to the facts: the November 2020 clear-case request had already created pendency, preserved through the September 2021 re-filing. When the borrower sued in Paris in February 2021, Swiss lis pendens already existed — the stay should never have been ordered (E. 5.5).

The decision leaves some questions open. It does not address how the one-month deadline runs where the inadmissibility decision is itself appealed. Nor does it resolve the practical difficulty that a summary request will often not meet the formal requirements of an ordinary statement of claim.

What this means in practice

For counsel weighing where and how to move first in a Swiss-connected dispute, the architecture described above yields a short set of working rules.

• Move first, and move in Switzerland. Priority under the Convention is set by the earliest Swiss filing, not the first successful one — and the life-line of Art. 63 CPC does not extend to first filings abroad. Where a Swiss forum is available and desirable, an early Swiss filing (even a bare conciliation request) is the surest way to secure the date.

  
  

• An aggressive first strike is now a calculated risk, not a gamble. After 4A_481/2025, a claimant may open with a fast summary clear-case request; if it fails, re-filing the identical claim within one month preserves the original date — for Convention priority and for prescription alike. The conditions are strict and belong on any checklist: identical claim, one month, correct procedure and court.

  
  

• Do not rely on a forum clause to stop a torpedo. Under Lugano — unlike Brussels Ia — even the designated court must stay if seised second. The remedy is speed, not drafting.**If a Swiss court wrongly stays, appeal immediately.** A stay on international lis pendens grounds is an incident decision on jurisdiction that can be challenged directly before the Federal Supreme Court under Art. 92 FSCA (BGer 4A_481/2025, E. 1.2) — as this very case shows, it need not be endured until the end of the proceedings.

  
  

• Check the regime first. If the parallel action is pending outside the Lugano area, Art. 9 PILA applies, the recognition prognosis replaces the chronological automatism, and the tactical calculus shifts accordingly.

Takeaway

Lis pendens under the Lugano Convention is a race — but the finish line is drawn by national law. Swiss procedure draws it early and generously: pendency arises with the first procedural act, survives a defective first attempt via Art. 63 CPC, and, as the Federal Supreme Court has now confirmed in BGer 4A_481/2025, both features hold good within the Convention, even where the first attempt was a failed clear-case request. For anyone litigating, or expecting to litigate, a Swiss-connected dispute in parallel with proceedings elsewhere in Europe, the date of the very first Swiss filing may well be the date that decides the case.