The Swiss Supreme Court has requested for amending the arbitration award by considering the latest result to be the highest fairness for dismissing the arbitrator.

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On 15 January 2021, the Swiss Federal Supreme Court (“SFSC”) filed a petition to amend the Court of Arbitration for Sport (“CAS”) arbitration award located in Lausanne, Switzerland on the case of Sun Yang who is a Chinese swimmer due to the bias and lack of neutrality of the CAS president. [1]

Background

On February 28, 2020, the CAS banned Sun Yang, a Chinese swimmer for eight years because he violated the doping regulations. On June 15, 2020 [LG1], Sun Yang filed an appeal against the CAS Arbitration Award to the SFSC. However, Sun Yang was skeptical of the neutrality of CAS President Franco Frattini. Sun Yang then submitted evidence to support the claim. Mr. Franco had repeatedly published comments on animal treatment in the country. The content from Twitter revealed a strong anti-China.

The Swiss Supreme Court has requested that the arbitral award should be amended 30 days after the objection.

The first step, SFSC is required to check whether this injustice can be proven after the expiration of the 30-day period. The opposition must immediately state the reason for the objection when the cause of such objection is known. This rule is provided in Section R34 of the Sports-related Arbitration “CAS-Code”. The above section applies in the event of Due Care where the parties may object. If the party lags in objection to the arbitral award, the objector will lose the right to object. The objector is required to file inquires in the event of a dispute and must make it clear that it was done by due diligence.

In this case, Sun Yang argued that upon reviewing the qualifications of the arbitrator to ensure that Mr. Franco Frattini was impartial when appointing Franco as the original arbitrator, Sun Yang argued that he did not find the problematic Tweet at the time. Sun Yang said he had no reason to suspect that Franco might have made the problematic comments on Twitter, in which case Sun Yang could be blamed for not being able to see those tweets, which were published nearly 10 months prior to the appointment of the arbitrator. However, SFSC agrees with Sun Yang’s argument and said that either party does not need to continue searching the Internet or moderating arbitration messages on social networks during the arbitration process. In conclusion, SFSC judged that Sun Yang’s argument was not inept and unfair in any way.

The sentiment of the arbitrator expressed on the social network may raise doubts of neutrality in extreme cases.

Next, the SFSC will investigate whether the evidence submitted to support the dispute, highlighting the fact that doubts about the objectivity of the arbitrator. The term “neutrality” is often referred to as having no prejudice or prejudice, referring to § 141 of the Judgment of 2 October 2018 of Mutu and Pechstein v. Switzerland of the European Court of Human Rights.

For investigations of Sole Arbitrator’s independence or arbitration in the arbitral tribunal, both parties may refer to the IBA Guidelines on Conflicts of Interest in International Arbitration on cases of conflicts of interest in international arbitration. In accordance with this principle, the arbitrator must reject the appointment or leave the arbitral tribunal (if already appointed). If such a fact might raise concerns or concerns about the impartiality of the arbitrator [2].

In such a case, the SFSC concluded that Franco Faccini had used very strong oppositive language at times despite being appointed as an arbitrator. He tweeted “Chinese is a sadist who brutally killed dogs and cats in Yulin”, “This yellow-faced Chinese monster smiles while torturing a small dog, he deserves the worst in Hell”, ” Terrible sadist is Chinese people! ”[3] For that reason, SFSC has accepted the appeal on the grounds of the objectivity of the arbitrator and postponed the CAS arbitration award.

Objection and amendment of arbitration award contained in section 190 (a) PILA.

Previously, the only amendment to the arbitral award referred to by the law was a petition to the Swiss Federal Supreme Court for the withdrawal of [LG2] Chapter 12, Swiss Private International Law Act “PILA” which is into effect on 1 January 2021.

The Swiss CAS is seen as the court that made the final judgment of the sport and it is very difficult for the arbitration award to be opposed by the SFSC. In such a case, the SFSC has the right to close any gaps in existing legislation and to accept petitions to amend the arbitration award as appropriate time.

Source:

https://globalarbitrationnews.com/swiss-supreme-court-upholds-the-request-for-revision-of-an-arbitral-award-based-on-the-subsequent-discovery-of-circumstances-that-justified-the-removal-of-an-arbitrator/

[1] https://www.bger.ch/ext/eurospider/live/de/php/aza/http/index.php?lang=de&type=highlight_simple_query&page=1&from_date=&to_date=&sort=relevance&insertion_date=&top_subcollection_aza=all&query_words=4A_318%2F2020&rank=1&azaclir=aza&highlight_docid=aza%3A%2F%2F22-12-2020-4A_318-2020&number_of_ranks=1

[2] section 2 (c) of the IBA Guidelines

[3] ’Those bastard sadic chinese who brutally killed dogs and cats in Yulin’, ‘This yellow face chinese monster smiling while torturing a small dog, deserves the worst of the hell’, ‘those horrible sadics are CHINESE!’

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The Swiss Supreme Court has requested for amending the arbitration award by considering the latest result to be the highest fairness for dismissing the arbitrator.