Swiss Supreme Court Reaffirms Its Opposition To Forum Running – Preserving Lis Pendens After Dismissed Clear-Case Proceedings Under Art. 63 CPC

In a landmark decision dated 5 June 2026 (4A_481/2025, intended for publication in the official bulletin), the Swiss Federal Supreme Court confirms that Art. 63 CPC, which sets the continuation of lis pendens, also applies within the context of the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters of 30 October 2007 (the "Lugano Convention"). 

The Court held that, where a bank first brings clear-case proceedings in Switzerland and then reintroduces the same claim within the statutory time limit after the initial filing has been declared inadmissible (as being not a clearcut case), Article 63 CPC preserves the original filing date for lis pendens purposes under the Lugano Convention.

This ruling strengthens legal certainty in cross-border disputes, limits tactical forum running and confirms that parties using legitimate Swiss procedural tools cannot be deprived of the lis pendens protection created by the initial filing.

FACTUAL BACKGROUND

The dispute at the core of the case arose out of a credit facility agreement concluded between a bank and its debtor, a private individual (the Respondent), who is a French resident. The agreement was governed by Swiss law and contained an exclusive jurisdiction clause in favour of the Geneva courts. The Bank sought the reimbursement of the outstanding credit amount, i.e. an amount exceeding EUR 21 million.

On 16 November 2020, the Bank initiated proceedings before the Geneva Court of First Instance by filing an application for relief in clear-cut cases under Article 257 CPC. This summary procedure is available where the facts are undisputed or immediately provable, and the legal situation is clear. The Geneva court declared the application inadmissible on 9 August 2021, holding that the matter was too complex for clear-case proceedings.

In the meantime, in February 2021, the Respondent brought proceedings in France against the Bank and an affiliated entity, drawing on the consumer forum provisions set out in the Lugano Convention. In those proceedings, the Respondent sought, among other things, a declaration of nullity of the contractual arrangements between the parties.

Following the inadmissibility decision in Switzerland, the Bank filed a conciliation request in Geneva on 10 September 2021, again seeking payment of the same amounts as in the earlier clear-case proceedings. This filing was made within the deadline set under Art. 63 CPC according to which the new filing is deemed made at the date of the initial filing provided the new proceeding is filed within a month’s deadline after the first proceeding was deemed inaccurate. After obtaining authorisation to proceed, the Bank brought the action before the Geneva Court of First Instance on 3 March 2022 (the "Swiss Action").

In the proceedings on the merits, the Respondent maintained that the Swiss Action was inadmissible, arguing that concurrent proceedings were already pending abroad and that the foreign court had therefore been seized first. The Geneva Court of First Instance rejected this objection. On appeal, however, the Geneva Court of Justice admitted the Respondent’s lis pendens objection and suspended the Swiss proceedings until a final decision on jurisdiction was rendered abroad. The Court of Justice simply held that since the Lugano Convention did not encompass a similar provision to Art. 63 CPC, such principle of perpetuation of the lis pendens could not apply as this could not be governed by domestic law. The Bank appealed to the Swiss Federal Supreme Court.

SWISS SUPREME COURT’S RULING

ARTICLE 63 CPC IS APPLICABLE UNDER THE LUGANO CONVENTION

The Supreme Court first noted that Article 27 of the Lugano Convention requires the secondly seized court to stay its proceedings where the same cause of action, the same object and the same parties are involved in parallel proceedings before courts of different Lugano Convention states. The decisive question was therefore which of the Swiss courts or the French courts had been seized first.

Under Article 30 of the Lugano Convention, a court is deemed seized when the document instituting proceedings, or an equivalent document, is lodged with the court, provided that the claimant subsequently takes the required steps to continue the proceedings. The Supreme Court emphasised that Article 30 of the Lugano Convention defines the time at which a court is seized but does not fully harmonise the national procedural laws of the Lugano Convention member states. Rather, it governs the creation of lis pendens, but not exhaustively the maintenance or loss of that procedural bond.

The Swiss Supreme Court ruled that Swiss procedural law remains relevant to determine whether an initial procedural link has been maintained internally. According to Article 63 CPC, where an initial filing is withdrawn or declared inadmissible because it was brought before an incompetent authority or under the wrong procedure, the action is deemed to have been introduced on the date of the first filing if the same claim is reintroduced within one month before the competent authority or under the proper procedure.

The Supreme Court rejected the view that Article 63 CPC should be excluded merely because the Lugano Convention contains no equivalent provision. According to the Swiss Supreme Court, taking Article 63 CPC into account is not prohibited by Article 30 of the Lugano Convention. On the contrary, the law of the forum is to be fully considered in determining the procedural consequences of the first Swiss filing (i.e. the filing of the application for protection in clear cases).

ARTICLE 63 CPC IS ALSO APPLICABLE WHEN CLEAR-CASE PROCEEDINGS ARE DISMISSED

Having determined that Article 63 CPC may be applied within the context of the Lugano Convention, the Swiss Supreme Court analysed whether, as a matter of Swiss law, that same article could be applied in the event an application for relief in clear cases is declared inadmissible due to the complexity of the case.

Such issue had never been ruled upon and was debated among scholars.

In this regard, the Court noted that clear-case proceedings are an optional procedural route available to claimants. They are not a mandatory preliminary step, but they are nevertheless proceedings on the merits and are adversarial in nature. If successful, these proceedings lead to a judgment with substantive res judicata effect. If the requirements of Article 257 CPC are not met, the application is declared inadmissible instead of being dismissed on the merits and can therefore be fully reintroduced on the merits in an ordinary proceeding.

The Supreme Court held that an application for protection in clear cases is therefore capable of creating lis pendens. The fact that the Bank chose an optional summary route does not prevent the initial filing from qualifying as an action instituting proceedings for the purposes of Article 30 of the Lugano Convention.

The Court then examined whether Article 63 CPC may preserve the filing date when the clear-case application is dismissed. It answered this question in the affirmative. In particular, the Court relied on the legislative materials, which expressly contemplated the application of Article 63 CPC where a clear-case application is declared inadmissible. Excluding Article 63 CPC in this context would undermine the purpose of the clear-case procedure, because claimants would be discouraged from using this efficient procedural tool whenever there was any risk that the matter might not be considered clear.

Accordingly, where a clear-case application is declared inadmissible and the claimant reintroduces the same claim under the proper procedure within the Article 63 CPC deadline, lis pendens is preserved retroactively as of the date of the first filing.

THE SWISS COURTS WERE SEIZED FIRST

Applying these principles, the Supreme Court held that, in this instance, lis pendens had been created on 16 November 2020, when the clear-case application was initially filed in Geneva. That procedural link was then preserved when the Bank reintroduced the same claim by filing a conciliation request on 10 September 2021 and then brought the statement of claim on the merits before the Geneva Court of First Instance.

Since the Respondent only initiated the foreign proceedings in February 2021, the Swiss courts had been seized first. The Geneva Court of Justice should therefore not have suspended the Swiss proceedings based on prior foreign lis pendens.

The Supreme Court admitted the appeal, annulled the Geneva Court of Justice’s decision and remanded the case for a new decision and continuation of the Swiss proceedings.

KEY TAKEAWAYS

The decision provides welcome clarification on the scope of Art. 63 CPC both domestically and internationally in terms of its application: (i) in connection with a prior filing of a clear-cut case and (ii) in international disputes. It further reaffirms the practical – and in our view correct – approach of the Federal Supreme Court aiming at securing certainty and predictability in dispute management, which echoes a former decision rendered by the Federal Supreme Court earlier this year that went in the same direction but  within the context of the Swiss Federal Act on Private International Law (“PILA”).  By confirming this pragmatic approach, the Court reinforces legal certainty, protects parties who make timely use of Swiss procedural mechanisms and limits tactical attempts to shift the dispute abroad after proceedings have already been initiated in Switzerland.

Important guidance for parties involved in cross-border disputes governed by the Lugano Convention can be summarised as follows: 

1. Article 63 CPC applies in Lugano Convention cases: the absence of an equivalent provision in the Lugano Convention does not exclude the application of Article 63 CPC. Swiss procedural law remains relevant to determine whether lis pendens created by an initial Swiss filing has been preserved.
2. Clear-case proceedings do create lis pendens: where clearcase proceedings under Article 257 CPC are declared inadmissible because the matter is not sufficiently clear-cut, the original filing date is preserved pursuant to Article 63 CPC, provided the same claim is reintroduced in time under the correct procedure.
3. The ruling limits forum running: a respondent cannot necessarily defeat an earlier Swiss filing by commencing parallel proceedings abroad after the claimant’s first Swiss application has been declared inadmissible. If Article 63 CPC applies, the Swiss filing date may continue to prevail. Such finding also secures the attractiveness of summary proceedings, which would otherwise have become void given the risks taken by the claimant when relying on such proceedings if the defendant can meanwhile play forum shopping.
4. Strict compliance remains essential: the protective effect of Article 63 CPC depends on reintroducing the same claim, within the statutory deadline, before the competent authority and under the proper procedure. The claimant must then remain proactive to secure their rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.