No Right to Challenge the Central Authority’s Decision on Service, Says Swiss Supreme Court

In a judgment of 6 August 2026 (4A_174/2026), the Swiss Federal Supreme Court held for the first time that the parties to the main proceedings have no right to challenge the Central Authority’s decision to grant or refuse a request for service under the 1965 Hague Service Convention. Nor are they entitled to be heard in the judicial assistance proceedings or to obtain a reasoned, appealable decision on the matter.

Background

The case arose from proceedings pending in the United Kingdom between a British company and a Swiss company based in Basel. A request for service of judicial documents on the Swiss company was transmitted from the UK, under the 1965 Hague Service Convention, to the competent cantonal Central Authority, the Court of Appeal of Basel-City. The Central Authority granted the request, the documents were served by the Civil Court of Basel-City, and a certificate of service was returned to the requesting authority.

The Swiss company challenged the service before both the Civil Court and the Court of Appeal, seeking a declaration that it was invalid and a reasoned decision. It argued that the Court of Appeal’s decision to execute the request had been neither notified to it nor reasoned, despite its repeated requests, in breach of its right to be heard and its right of access to justice.

All of its applications were dismissed or returned without any reasoned decision. The Swiss company then appealed to the Supreme Court.

Decision

First, the Supreme Court held that service as such, effected by way of judicial assistance, cannot be the object of an appeal. It is a mere factual act by which a legal act is transmitted.

Second, the requested State, acting through its Central Authority, must permit service on its territory, by virtue of the principle of sovereignty. That authority must therefore verify whether the conditions for service are met. This review results in a decision either to grant judicial assistance and execute it by serving the document, or to refuse it. The question was thus whether the parties to the main proceedings may take part in these judicial assistance proceedings and challenge the Central Authority’s decision.

The Supreme Court had never answered this question. It had, however, described the possibility of a challenge as “highly questionable” (4A_89/2025, para. 3; 4A_527/2019, para. 3.3.4) and had doubted whether there was a sufficient legal interest in bringing such a challenge (5A_305/2015, para. 1.2).

According to the Court, the Swiss legal literature generally accepts that the recipient of service has a remedy against the granting and execution of judicial assistance in matters of service. In Germany, both scholarship and case law likewise consider that a challenge should be available, so that the German Central Authority’s decision may be challenged as a judicial administrative act.

These views did not convince the Supreme Court, which reached the opposite conclusion.

It relied first on the text of the Convention itself. The Convention contains no provision on the validity of service or the consequences of a breach of its provisions, provides no remedy against the Central Authority’s decision, and confers no right to an appealable decision on whether assistance with service is granted or refused.

The Convention protects the recipient of service only in so far as it ensures that they receive actual and timely notice of the document instituting the proceedings, in particular through Articles 15 and 16. In other words, it safeguards the rights of the defence, but not the further rights claimed by the Swiss company. In addition, these provisions bind only the court of the requesting State, not the authorities of the requested State.

Under the Convention itself, the recipient of service is therefore not entitled to be heard on the granting or refusal of judicial assistance, and thus on whether the sovereignty barrier of the requested State should be lifted. It is for the States concerned alone to determine whether, and to what extent, they wish to waive their sovereignty. The parties to the main proceedings in the requesting State are, in principle, not involved in the judicial assistance proceedings and are only indirectly affected by them.

The Court further relied on the objective of the Convention, which is to expedite and simplify international service of documents.

This is reflected in the limited scope of the Central Authority’s review. Its powers are essentially confined to verifying whether the request for service complies with the requirements of the Convention and whether judicial assistance is not manifestly inadmissible. It does not rule on the merits of the main dispute.

The Convention’s objective of expediting service would be undermined if the parties had to be heard and given a right of appeal in each service procedure. This would mean, among other things, that the observations of the claimant in the foreign proceedings would also have to be obtained, which might in turn require service of judicial documents abroad by way of judicial assistance. This could cause considerable delays in effecting international service and give rise to numerous ancillary proceedings alongside the main proceedings.

Furthermore, the Court distinguished its case law under the 1970 Hague Evidence Convention, under which a Swiss court’s decision ordering or refusing the execution of a letter of request issued by a foreign judicial authority constitutes an appealable decision (4A_389/2022, para. 1.1; 5A_362/2018, para. 1; 4A_340/2015, para. 1.1). Unlike the Service Convention, the Evidence Convention grants the parties individual protective rights which are directly affected by the granting or refusal of judicial assistance. Moreover, respecting the right to be heard of the parties to the main proceedings does not conflict with the effet utile of that Convention.

The parties are not, however, left without any protection. They may raise objections concerning service in the main proceedings and, where applicable, in subsequent recognition proceedings in the requested State.

The Supreme Court accordingly declared the Swiss company’s appeal inadmissible.

Comment

The Swiss Federal Supreme Court answered a disputed question: the parties to the main proceedings, including the recipient of the documents, are not parties to the judicial assistance proceedings as such. Procedural guarantees such as the right to a reasoned decision, the right to be notified of it and the right to challenge it therefore do not apply to the Central Authority’s decision on service.

The Supreme Court has adopted an approach favouring the efficiency of judicial cooperation under the Hague Service Convention. Its concern to avoid lengthy delays and ancillary proceedings is perfectly understandable. This serves the interests of both States and the claimant in the main proceedings.

While this judgment deprives the recipient of any prior review of the regularity of the judicial assistance, leaving the issue to the court hearing the main proceedings or to any recognition proceedings in Switzerland, it is consistent with the purpose of the 1965 Hague Convention, which is to inform the recipient promptly so that they can assert their rights in the foreign proceedings. The Convention even permits service by postal channels (not permitted in Switzerland, save with Austria), which further illustrates this objective and shows that service may take place without any prior review. Allowing recipients to challenge service could have turned Switzerland into a “safe haven” for parties seeking to delay foreign proceedings, and could have triggered a cascade of further proceedings and service abroad.