In its recently published judgment 4A_237/2025 of 4
August 2025, the Swiss Federal Supreme Court clarified
when statements made by a judge during judicial settlement
discussions may constitute grounds for recusal of said judge in the
further proceedings.
The dispute arose from a commercial dispute before the Aargau
Commercial Court, where one company claimed
payment from another for services rendered. As part of a court-led
settlement hearing, the presiding judge—during a preliminary
assessment of the facts and legal issues—remarked that the
provision invoked by the plaintiff (Art. 366 CO) was
"certainly" applicable and that "in any case
something will be owed".
The Federal Supreme Court dismissed the appeal and thereby
confirmed that:
- A preliminary assessment of the factual and legal situation does not, by itself, establish grounds for an appearance of bias. In this context, judges may suggest a withdrawal of the claim, a recognition of the claim, or a monetary settlement, based on their evaluation of the chances of success.
- Parties have a legitimate interest in hearing the court's genuine assessment during settlement hearings. Only with such insight can they make an informed decision whether to proceed with litigation. Judges are therefore not required to dilute or conceal their views simply to avoid recusal challenges.
- Whether the judge's preliminary legal assessment is correct is irrelevant to determining bias, except in cases of a wholly unjustifiable misjudgment.
- When assessing bias, statements must be considered in their overall context. The decisive factor is whether the judge's conduct during the settlement discussions, taken as a whole, creates doubts about impartiality to objectively decide on the case during the further proceedings. Such doubts may arise, for example, if a judge makes disparaging remarks about a party or consistently ignores that party's arguments and evidence.
- In the present case, the Swiss Federal Supreme Court concluded that there were no indications of bias. Although the judge remarked during the settlement hearing that Article 366 CO was "certainly" applicable, he subsequently qualified this assertion by noting that another provision (i.e. Art. 377 CO) might otherwise apply. This demonstrates that the judge remained receptive to alternative legal interpretations. Moreover, an isolated, non-prejudicial statement is insufficient to substantiate claims of bias. Considering the matter in its entirety, no indications of bias were found.
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.
