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Ruling on excessive formalism and applicability of legal aid regime in setting aside proceedings

27 March 2017

Authors: Nathalie Voser, Nadja Al Kanawati


In a French-language decision of 9 February 2017, but only recently published, the Swiss Supreme Court ruled, among other issues, that it was not excessively formalistic to reject the admissibility of an appeal because it was submitted within the deadline only by facsimile and not in its original. The Supreme Court ruled that filing deadlines are to be adhered to strictly in order to ensure legal certainty and so that the proceedings are being conducted in accordance with the principle of equal treatment of the parties.

It further ruled on an application for legal aid in setting aside proceedings. It had been uncertain based on its prior rulings, whether the exclusion of legal aid only applied to the arbitration proceedings as such or extended to subsequent setting aside proceedings as well. The Supreme Court found that while legal aid is not available for arbitration proceedings, this exclusion does not apply for setting aside proceedings before a state court. However, in the present case the application for legal aid was denied, as the Supreme Court found that the appeal was devoid of any chance of success and, therefore, the applicant was not entitled to legal aid, regardless of his financial situation. (Decision 4A_690/2016.)


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Published in Practical Law Arbitration



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Nathalie Voser
Nathalie Voser
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Zurich


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