In a recent decision published on 15 January 2021, the Swiss Federal Supreme Court (“SFSC”) upheld a request for revision of an arbitral award of the Lausanne-based Court of Arbitration for Sport (“CAS”) regarding the Chinese swimmer Sun Yang on grounds of bias and lack of impartiality of the chairman of the CAS panel (case no. 4A_318/2021 (in French)).
Factual background
With its decision of February 28, 2020, the CAS imposed an eight-year ban on the Chinese swimmer Sun Yang for violation of doping rules. On June 15, 2020, Sun Yang filed an appeal against the CAS award with the SFSC. In the appeal, he raised doubts against the impartiality of the chairman of the CAS panel, Franco Frattini. In support thereof, Sun Yang submitted evidence according to which in 2018 and 2019, Franco Frattini had repeatedly published comments about the treatment of animals in China on his Twitter account, containing extreme anti-Chinese language.
Swiss Supreme Court justifies request for revision of the arbitral award after the expiry of the deadline of thirty days to challenge an award
In a first step, the SFSC examined whether the discovery of the grounds of bias after the expiry of the 30-day deadline can still be justified. A party that intends to challenge an arbitrator must state the grounds for the challenge as soon as it becomes aware of them. This jurisprudential rule, expressly stated in art. R34 of the Code of Sports-related Arbitration (“CAS-Code”), applies both to the known grounds for challenge and to any grounds that could have been known with due care. If a party is late in asserting its right to challenge an arbitrator, the right is – in general – forfeited. A party must make certain inquiries in this regard and must ultimately show that it has exercised such inquiries with due diligence.
Sun Yang argued that one of his legal counsels had conducted research to ensure the impartiality of arbitrator Franco Frattini when he was first appointed as chairman of CAS panel. According to his explanations, no problematic tweets were discovered at that time. Sun Yang further pointed out that he had no reason to suspect that the arbitrator may have made problematic comments in tweets. Therefore, he could be blamed for not having been able to identify these tweets which had been published nearly 10 months before the arbitrator’s appointment. The SFSC agreed with this reasoning and even held that a party could not be required to continue its internet searches or scrutinise the messages of arbitrators on social networks during arbitration proceedings. In sum, the SFSC thus ruled that there was no lack of due diligence on Sun Yang’s part.
Arbitrators’ convictions expressed on social networks may lead to doubts over impartiality in extreme cases
In a second step, the SFSC examined whether the findings at hand were sufficient to raise doubts about the arbitrator’s impartiality. On this occasion, it emphasized that impartiality is usually defined by the absence of prejudice or bias (referring § 141 of the judgment of October 2, 2018 of the European Court of Human Rights in the case of Mutu and Pechstein v. Switzerland). To verify the independence of a sole arbitrator or the members of an arbitral panel, the parties may also refer to the IBA Guidelines on Conflicts of Interest in International Arbitration. According to one of the principles of these Guidelines, an arbitrator must decline to sit or resign where there exist, or may arise after his or her appointment, facts or circumstances which in the view of a reasonable third party having knowledge of the relevant facts and circumstances, would give rise to justifiable doubts as to the arbitrator’s impartiality or independence (section 2 (b) of the Guidelines). The doubts are legitimate if a reasonable third party, having knowledge of the relevant facts and circumstances, would consider it more likely that the arbitrator’s decision would be influenced by factors other than the merits of the case as presented in the parties’ submissions (section 2 (c) of the Guidelines).
In the case at hand, the SFSC concluded that the Franco Faccini had used extremely violent anti-Chinese language on several occasions, in some cases even after his appointment as arbitrator, so that the circumstances were such as to raise doubts about the arbitrator’s impartiality. In particular, he used the following terms: ’Those bastard sadic chinese [sic] who brutally killed dogs and cats in Yulin’, ‘This yellow face chinese [sic] monster smiling while torturing a small dog, deserves the worst of the hell’, ‘those horrible sadics [sic] are CHINESE!’ (this listing is not exclusive). Accordingly, the SFSC approved the appeal on grounds of impartiality and set aside the CAS award.
Challenge and Revision of the arbitral award provided in the newly-introduced Art. 190(a) PILA
Previously, the only remedy against an arbitral award mentioned by the law was the application to the Swiss Federal Supreme Court to have the award set aside. The revised 12th chapter of the Swiss Private International Law Act (“PILA”), which entered into force on January 1, 2021 now regulates the revision of an arbitral award.
Switzerland’s CAS is seen as the sport’s final court of judgment and it is rare for its decisions to be challenged by the SFSC. In the case at hand, it was justified, according to the SFSC, to close the gap in the old law and to admit the timely filed request for revision.
By Baker McKenzie - Dr. Valentina Hirsiger and Lukas Frommelt