Party standing in Swiss judicial assistance proceedings: service of process and taking of evidence
A company in Basel is sued in England. The claimant, a limited partnership from the United Kingdom, has the claim served through the Swiss central authority, which in Basel-Stadt is the Court of Appeal (Appellationsgericht). The Basel company does not take this lying down. It writes to the central authority that service would breach the Hague Service Convention, backs this up with legal opinions, and asks for a reasoned decision it can take to a higher court. On 4 March 2026 the papers are served on it anyway. The next day a certificate of service goes back to England.
What can the company still do about this in Switzerland? Nothing. That is the answer of the Swiss Federal Supreme Court in BGer 4A_174/2026 of 6 August 2026, a judgment of five judges designated for official publication. The parties to the foreign lawsuit are not parties to the Swiss assistance proceedings. They cannot appeal the central authority’s decision, and they are not entitled to a decision in a form that could be appealed.
The court had dodged the question before. In BGer 4A_89/2025 of 16 June 2025 it had called a right to an appealable decision “highly doubtful”, but the recipient there had never asked the central authority for one, so nothing had to be decided. Swiss and German writers had mostly assumed the recipient could challenge service, and in 2019 a cantonal court had let a recipient do exactly that. The Basel company did everything the earlier cases had found wanting. The court could not sidestep the issue a fourth time.
The judgment settles the question for service. It also throws light on a broader one that foreign counsel meet whenever Switzerland is asked to help a foreign court: who, if anyone, has standing on the Swiss side. The answer depends on which of the two Hague Conventions applies, and the difference is larger than one might expect.
Judicial assistance is a matter between states
Serving a writ or examining a witness is an act of state authority. A state may do it on its own territory and nowhere else. A foreign court that wants papers delivered or a witness heard in Switzerland needs the Swiss authorities to do it for it, or to permit it. Doing it without permission is not just ineffective; under Art. 271 of the Swiss Criminal Code (SCC; StGB) it is also a crime. Judicial assistance is how Switzerland lends its authority to the foreign court. Two treaties organise the lending: the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (SR 0.274.131, "Service Convention"), and the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (SR 0.274.132, "Evidence Convention").
The proceedings before the Swiss central authority or the Swiss executing court are therefore a transaction between two states. The litigants are the occasion for it, not its participants. The Federal Supreme Court has said as much in neighbouring areas. In BGE 145 III 422 E. 4.2 it put the party in assistance proceedings next to the judgment debtor in first-instance Lugano exequatur proceedings, who is not heard either, and next to the debtor in the recognition of a foreign bankruptcy decree under Art. 166 et seq. of the Private International Law Act (PILA; IPRG). In each case the Swiss court acts first. The affected party speaks later, if at all.
How much later, and whether at all, is where the two Conventions differ.
Evidence Convention: no hearing, but an appeal
The case law under the Evidence Convention goes back more than twenty years and has settled into a pattern.
It begins with BGE 129 III 107, a Fribourg case from 2002. A Swiss party to US bankruptcy proceedings tried to appeal the decision of the cantonal central authority to pass a letter of request on to the district court for execution. The Federal Supreme Court would not hear the appeal. The central authority, it said, only examines the request summarily, for completeness and for obvious grounds of refusal, and what it decides does not bind the court that executes the request. Whether the Convention’s conditions are met is for that court to decide.*
BGer 5A_284/2013 of 20 August 2013, E. 4.2, concerned a Spanish inheritance dispute in which a Swiss bank was told to produce account records. The heir who was a party to the Spanish proceedings had been able to argue her case there, the court said, and had no right to intervene when the request was executed in Switzerland.
BGE 142 III 116 gave the procedure its present shape. The Swiss order executing a letter of request, whoever issues it, is an enforcement decision under Art. 335 et seq. CPC. It can be challenged by the limited appeal under Art. 319(a) CPC within ten days, and nothing more is required (E. 3.4.1). The parties to the foreign case may bring that appeal, but not to argue points that belonged in the foreign court (E. 3.4.2). The bank may appeal to defend its own rights under Art. 11 of the Convention, not the parties’ rights (E. 3.4.3). Third parties whose rights are touched, the account holder or the beneficial owner for instance, may appeal too (E. 3.4.4).
BGE 145 III 422 filled in the last piece. A husband in Latvian divorce proceedings complained that the Geneva court had ordered a Swiss bank to disclose his accounts without hearing him first. He had no right to be heard before execution, the court held. The procedure before the requested court is neither adversarial nor contentious, and warning the account holder in advance might defeat the purpose of the request (E. 4.1 and 4.2). But he could appeal the execution order under Art. 319 et seq. CPC before the documents left for Latvia, and he had done so and obtained suspensive effect. That, the court said, satisfies the right to be heard.
BGE 149 III 235 narrowed the remaining ground of refusal. Prejudice to Swiss sovereignty or security under Art. 12(1)(b) of the Convention is not the same as Swiss public policy and is read more strictly. A breach of Swiss procedural principles only counts if the principle belongs to international public policy. The one that matters in practice is the right of the persons affected by the request to have been heard in the foreign proceedings before the request was executed (E. 4.5.5).
So on the evidence side the party is not heard before Switzerland acts, can appeal within ten days and keep the evidence in the country until the appeal is decided, and in that appeal can argue the Convention but not the foreign case.
Service Convention: no hearing, no appeal, no decision
Under the Service Convention the Federal Supreme Court has now gone a good deal further.
The Basel company had challenged whatever could conceivably be challenged: the central authority’s unpublished decision to grant the request, two later letters from it, the certificate of service, and the service itself. If none of these was a decision, it argued, then the refusal to issue one was a denial of justice.
The court took this in stages. The act of service is not a decision. It is a physical act by which a legal act is transmitted, and it cannot be appealed. That had been said in 4A_89/2025 already. The real question was whether the parties to the foreign case take part in the assistance proceedings at all, with a right to an appealable decision on whether assistance is granted (E. 2.1.2.1).
They do not, for three reasons:
The Convention regulates the channels between states and nothing else: It is silent on the validity of service, on the consequences of a breach, and on any remedy against the central authority (E. 2.1.2.3). The protection it gives the defendant sits in Art. 15 and 16. Under Art. 15 the foreign court must stay its proceedings until it is shown that the document was served in a form prescribed by the law of the requested state, or handed to the defendant personally or at his residence, and in either case early enough for him to defend himself. Under Art. 16 the foreign court may relieve a defaulting defendant from the expiry of the time for appeal if he learned of the document and of the judgment too late through no fault of his own. Both provisions address the court of the requesting state. Neither says a word about the decision to grant assistance.
The Convention is built for speed: The central authority checks the form of the request, whether the matter is civil or commercial, and whether execution would infringe Swiss sovereignty or security under Art. 13. It does not look at the merits of the foreign dispute. If every recipient had to be heard and could appeal, the claimant in the foreign case would have to be heard as well, which in most cases means another round of service abroad, and the assistance proceedings would breed their own litigation. The court calls this a threat to the Convention’s effet utile (E. 2.1.2.4).
And because the central authority’s review is so limited, an appeal would have nothing to work with. Formal defects are checked without being asked. Sovereignty and security are the state’s business, not the recipient’s (E. 2.1.2.4).
From this the court draws the conclusion that the parties to the foreign proceedings are not involved in the Swiss service proceedings. They have no remedy against the decision to grant assistance and no claim to an appealable decision. Their protection lies in the foreign proceedings and in any later recognition proceedings in Switzerland (E. 2.1.3). Where there is no right to a decision, refusing to issue one is not a denial of justice (E. 2.1.4).
The court does not pretend this is the orthodox view. It cites Gauthey and Markus, Bischof, and Courvoisier and Zogg for the Swiss position that the recipient may challenge the grant of assistance even after the certificate has gone out, and Sujecki, Schlosser, Geimer and two German appellate courts for the German practice of treating the central authority’s decision as an appealable administrative act (E. 2.1.2.2). Having set out the opposing view, it decides against it.
One cantonal court had gone the other way in 2019. The Cantonal Court of Basel-Landschaft, in its decision 410 19 153 of 8 August 2019, dealt with papers from a Russian criminal court served on a Swiss executive who was a civil defendant in those proceedings. It applied the CPC to the assistance proceedings, held that the right to be heard under Art. 53 CPC applied to them, required the central authority to examine the request in full, and ordered it to refuse service and revoke the certificate it had already issued. What the Basel-Landschaft court did was take the evidence-side model, enforcement decision under Art. 335 CPC and appeal under Art. 319(a) CPC, and apply it to service. The Federal Supreme Court has now blocked this reasoning.
Why the two Conventions part ways
The court knew it was treating the two Conventions differently and said why (E. 2.1.2.5).
The Evidence Convention gives the parties rights inside the assistance proceedings. Under Art. 7 the requesting authority is told, if it asks, when and where the examination will take place, so that the parties and their lawyers can attend. Under Art. 11 the request is not executed insofar as the person concerned invokes a privilege or a duty to refuse to give evidence. These provisions touch the parties’ right to evidence and their right to be heard, which is why a remedy against the execution order fits. The Service Convention has nothing like them. Its protective provisions address the foreign court and operate after the fact.
The second reason is practical. Hearing the parties before a witness is examined does not endanger the system the way hearing them before a document is handed over does.
The second reason carries the decision. The Service Convention does give the recipient one right inside the assistance proceedings. Under Art. 5(2) service by simple delivery requires the recipient to be willing to accept the document, and the Swiss Federal Office of Justice has for years recommended that recipients be told they may refuse. The Basel-Landschaft court built on exactly that. The Federal Supreme Court does not mention it. The outcome would not change, but the line between the two Conventions looks more like a policy choice than a reading of the texts.
What the ruling does not say
The downstream protection the Federal Supreme Court points to is narrower than the judgment lets on. Art. 15 and 16 of the Service Convention protect only the defendant who has not entered an appearance. The grounds for refusing recognition in Switzerland are cut the same way. Art. 27(2)(a) PILA bars recognition where the party was not duly summoned under the law of its domicile or habitual residence, unless it appeared without reservation. Art. 34(2) of the Lugano Convention bars recognition where the defaulting defendant was not served in time to arrange his defence, and then only if he had no opportunity to challenge the judgment in the state of origin. A defendant who appears abroad, loses, and then faces enforcement in Switzerland can rely on none of this. Whatever complaint he has about the way the papers reached him must be made and kept alive in the foreign court, under the foreign court’s rules.
The central authority is now beyond review. The judgment itself says the central authority must examine the request and may refuse it under Art. 4 and 13. If nobody can appeal, nobody checks whether it did. Administrative supervision remains, which is not a remedy in any useful sense.
The judgment decides the case where assistance was granted. Whether the foreign claimant, or the requesting state, could challenge a refusal is not addressed.
What this means for foreign counsel
For a Swiss-based defendant the consequences are plain. Submissions to the Swiss central authority are wasted effort, and the Basel company’s experience shows what a well-prepared waste of effort costs: CHF 20'000 allone in Swiss Federal Cort's fees. Objections to service go into the foreign proceedings. A defendant who does not intend to appear is relying on Art. 15 and 16 in the foreign court, and on Art. 27(2)(a) PILA or Art. 34(2) of the Lugano Convention if the judgment ever reaches Switzerland. That position can be defended, but it is narrow, and under the Lugano Convention it is lost altogether if the defendant could have appealed the foreign judgment and did not.
For the requesting side the picture is reversed, and this is where the question of party standing has the most practical bite. I regularly assist US counsel in drafting letters rogatory for signature by their court. The Swiss procedure gives the parties no voice. The letter is their voice. What it asks for is what Switzerland will do, and what it leaves out will not be done.
No voice in the proceedings does not mean no contact with the court. In my experience the Swiss judge executing a letter of request will deal with a Swiss lawyer who has been named in the letter itself, by the requesting court, as the representative of the party for the purposes of the request. That does not create standing, and it does not open a channel for argument on the merits. What it does allow is the kind of practical intervention that an unnamed lawyer cannot make: asking where the request stands, supplying a missing translation, clarifying a question put to a witness, and above all pressing for execution when the file has been sitting for months. Art. 9(3) of the Evidence Convention says the request shall be executed expeditiously. A judge who receives a reminder from someone the foreign court has identified in the request tends to take that provision more seriously than a judge who receives it from nobody. Whether a representative is named in the letter is therefore not a formality. It is the one piece of standing the party can give itself.
On the service side the same logic holds with less at stake. A request to the Swiss central authority that is in order, concerns a civil or commercial matter and asks for nothing that touches Swiss sovereignty will be executed, and the recipient cannot stop it. The place to get it right is the request.
If you are preparing a letter rogatory for execution in Switzerland, or have just been served or asked to produce evidence under one, we can tell you where the fight is and where it is not. Get in touch.
*Two caveats belong here. The judgment was decided under the old Federal Judicature Act, before the Swiss Code of Civil Procedure (CPC; ZPO) existed. And the two-stage structure it describes is cantonal organisation, not Convention law. Art. 2 of the Convention leaves the organisation of the central authority to the requested state, and Switzerland has passed that on to the cantons. Some cantons separate the two functions. Others, Geneva and Basel-Landschaft among them, have designated a court that receives the letter of request, examines it and takes the evidence itself. A letter of request addressed to the court of first instance in Geneva lands on the desk of the judge who will execute it. What has survived from the 2002 judgment is the idea that the central authority’s review is summary. That idea runs through the case law on both Conventions, and it comes back in the 2026 judgment on service.
