27. Januar 2021

Arbitration Newsletter Switzerland: CAS Schiedsspruch gegen den Schwimmer Sun Yang wegen Anscheins der Befangenheit des Vorsitzenden aufgehoben

On 15 January 2020, the Swiss Federal Supreme Court (the „Supreme Court„) published on its website a new decision in the field of international arbitration (the „Decision„)¹ wherein it set aside the CAS award against the Chinese swimmer Sun Yang, by which an eight-year ban was imposed on him for violating doping rules. The CAS award was set aside because of apparent bias by the Chairman of the arbitral tribunal.

The Decision was rendered by all five members of the First Civil Chamber on 22 December 2020 and will be included in the Supreme Court’s publication of leading cases.

1. Facts

On 4 September 2018, Chinese world-class swimmer Sun Yang was subjected to an out-of-competition doping control, where a urine and blood sample should be collected. During this doping control, the swimmer questioned the qualifications of two of the three anti-doping testers and retrieved the blood samples, which he had provided during the doping control earlier, and tore apart the doping control form he had previously signed. Hence, the doping testers left without either urine or blood sample.

After no sanction was imposed by the International Swimming Federation (FINA) with regard to this incident, the World Anti-Doping Agency (WADA) appealed the decision to the CAS on 14 February 2019.

The three member arbitral tribunal, composed of Romano Subiotto (replacement for Michael J. Beloff), Philippe Sands and Franco Frattini (chair), imposed an eight-year ban on the swimmer for violating FINA’s doping rules in its award on 28 February 2020 („Award„).

The swimmer filed an annulment action against the Award with the Supreme Court on 28 February 2020. Before a decision could be rendered by the Supreme Court on the annulment action, the swimmer filed, on 15 June 2020, a request for revision of the Award, wherein the swimmer also challenged the chairman of the arbitral tribunal, Franco Frattini.

The swimmer requested the revision on the ground that he had learned from an article, published on a website on 15 May 2020, about tweets by Franco Frattini in 2018 and 2019 that would, according to the swimmer, raise reasonable doubts about the impartiality of this arbitrator.

The tweets had the following content:

• 28 May 2018: „Show the HORROR THIS IS CHINA TODAY!! I’m sure nobody will have the courage to respond to me!!! Ambassador of China to Italy,where are you??? Are you silent on the tortures on dogs in Yulin???„

• 28 May 2018: „Let’s multiply our messages! Invade in China with our protest against horror and torture on stray dogs and cats, as they try to invade our markets with fake products!! Raise our voice, otherwise we are in complicity!,

• 3 July 2018: „Hell forever for those bastard sadic chinese who brutally killed dogs and cats in Yulin,with the complicity of the chinese authorities !!!„

• 28 May 2019: „This yellow face chinese monster smiling while torturing a small dog,deserves the worst of the hell!!! Shame on China,pretending to be a superpower and tolerating these horrors!!„

• 28 May 2019: „Racist????Me??ehi guy, I repeat: those horrible sadics are CHINESE!not French or Italian or polish! And I think they deserve a worse hell than the one in which they torture innocent animals!!Chinese is Yulin!!!do you want to defend!!come on,shame!!!„

• 2 June 2019: „Old yellow-face sadic trying to kill and torture a small dog:this is China’s picture!!! Westerners doing rich business with China bear in mind these atrocities „

• 9 June 2019: „Torturing innocent animal is a flag of chinese!Sadics, inhumans with the protection of chinese authorities and the tolerance of western powers focusing on more business with China,regardless any massive violence!Shame on china and their protectors! „

The Supreme Court admitted the request for revision for the reasons explained hereinafter, annulled the Award and admitted the challenge of the arbitrator Franco Frattini. The Supreme Court, however, did not render any decision on the substance of the matter. Therefore, a new CAS award will have to be rendered in this case

2. Considerations of the Supreme Court

The Supreme Court first decided that the discovery of a ground for a challenge to an arbitrator after the time limit for an action for annulment had lapsed could be raised in an application for revision of the award provided that the requesting party had been unable to discover the facts giving rise to the challenge during the arbitral proceedings by exercising the due diligence, i.e. the attention required by the circumstances.

The question was then whether the challenge had been raised timely. A party that wants to challenge an arbitrator has to do so by stating the reason for the challenge as soon as it becomes aware of it. If the challenge is not raised immediately, the right to challenge the arbitrator is forfeited. The same applies with regard to the reasons for the challenge to an arbitrator that the party could have ascertained by exercising appropriate due diligence. Accordingly, a party can challenge an arbitrator in a request for revision only for reasons that it had not discovered and could not have discovered during the arbitration proceedings by applying the attention required by the circumstances.

The Supreme Court then explained that parties would have a „duty of enquiry“ (in French „devoir de curiosité„) as to the existence of possible reasons for a challenge of arbitrators. A party may not simply rely on the declaration of independence of the arbitrator but has to make certain investigations to ensure that the arbitrator offers sufficient guarantees of independence and impartiality.

It is, however, difficult to define the contours of this duty of enquiry, which depend on the circumstances of the specific case. Of course, the duty is not unlimited. The parties are certainly obliged to carry out certain investigations, in particular on the internet. It can be expected from the parties that they use the main computer search engines and consult sources likely to provide a priori elements revealing a possible risk of partiality, e.g. the website of main arbitration institutions, of the parties, of their counsel and of the law firms in which they practice, of the law firms of the arbitrators and, in the field of sports arbitration, those of the sports institutions and organizations involved. However, the parties cannot be expected to systematically and thoroughly read all sources relating to a certain arbitrator. In particular, the mere fact that a party does not become aware of information in the freely accessible internet (despite having conducted searches) does not ipso facto mean that this party has violated its duty of enquiry. The circumstances of each specific case will always remain decisive.

While the Supreme Court held that it does not appear to be excluded prima facie that a party may be required, depending on the circumstances, to verify, by virtue of its duty of enquiry, the existence of possible reasons for a challenge, by examining, at least within certain limits, various social networks. However, at a time when some people frequently use or even abuse certain social networks, in particular by publishing countless messages on their twitter account, it appears advisable not to be too demanding in this regard as the duty of enquiry would be transformed into an obligation to carry out very extensive, if not almost unlimited, investigations requiring considerable time.

The Supreme Court came to the conclusion that, in the present case, an inexcusable failure to make enquiries is to be denied. Relevant in this regard are that the arbitrator in question was appointed on 1 May 2019 and that, in accordance with the CAS Code, a party has seven days to challenge an arbitrator. At the time of the appointment, only two of the tweets in question had been published and this nearly ten months ago. The other tweets were only published later on after the seven days challenge deadline had lapsed.

While it may be that the arbitrator’s twitter account should have been consulted, even if only briefly, the non-discovery of the tweets in May and July 2018 would not mean that the swimmer did not meet his duty of enquiry. In light of the mass of messages in the arbitrator’s twitter account (he is apparently very active on this social network), and in the absence of other circumstances pointing to a potential risk of partiality, it could not be held that the swimmer had not met his duty of enquiry by not discovering these tweets published nearly ten months previously.

Further, the non-discovery of the tweets published weeks after the arbitrator’s appointment would mean that the swimmer had not met his duty of enquiry. A party cannot be required to continue its internet searches throughout the arbitration proceedings, nor, a fortiori, to scan the messages published on social networks by the arbitrators during the arbitration proceedings.

The Supreme Court then analyzed whether the arbitrator in question was rightly challenged and the award would have to be set-aside for that reason.

The guarantee of an independent and impartial judge, deriving from article 30(1) of the Swiss Constitution, allows a request for exclusion of a judge whose situation or behavior is of a nature sufficient to raise doubts about her or his impartiality. The guarantee aims to prevent circumstances external to the case influencing the judgement in favor or to the detriment of a party. It requires a rejection, not only if such doubts can be established but already if the existing circumstances gave rise to the appearance of partiality. However, only circumstances that are objectively established may be taken into account. Purely individual impressions of one of the parties are not decisive in this respect.

The Supreme Court then referred to the IBA Guidelines on Conflict of Interest in International Arbitration and noted, once again, that while these guidelines did not have the force of law, they would be a useful working tool. According to para. 2(b) of these guidelines, an arbitrator shall decline to accept an appointment or, if the arbitration has already been commenced, refuse to continue to act as an arbitrator, if facts or circumstances exist, or have arisen since the appointment, which, from the point of view of a reasonable third person having knowledge of the relevant facts and circumstances, would give rise to justifiable doubts as to the arbitrator’s impartiality or independence. According to para. 2(c) of these guidelines, doubts are justifiable if a reasonable third person, having knowledge of the relevant facts and circumstances, would reach the conclusion that there is a likelihood that the arbitrator may be influenced by factors other than the merits of the case as presented by the parties in reaching his or her decision.

With regard to the tweets in question, the Supreme Court concluded that from the point of view of a reasonable third person, they would be of a nature to raise doubts about the arbitrator’s impartiality. While an arbitrator may defend her or his convictions on social networks, it would not mean that everything that she or he thinks can be expressed in extremely strong terms without risking triggering certain fears as to her or his impartiality, even if the arbitrator does not act with the arbitrator hat.

In the present case, it is not the cause defended by the arbitrator that appears problematic but rather certain terms used by him. In fact, the arbitrator did not hesitate to use extremely violent terms. In his tweets, the arbitrator also used twice the words „yellow face„, and this after he had been appointed in the arbitration. These terms obviously refer to the skin color of certain Chinese individuals, are not intended to qualify their behavior as cruel and have absolutely nothing to do with the acts of cruelty alleged against certain Chinese nationals. Such terms are inadmissible – irrespective of the context they are used. In light of the fact that the arbitrator made such remarks not only on two occasions before but also after his appointment as chairman of an arbitral tribunal called upon to rule on an appeal lodged by a Chinese national and during the pending proceedings, it must be admitted that the doubts of the swimmer about possible bias of the arbitrator in question are to be considered objectively justified.

For that reason, the request for revision was admitted, the Award annulled and the challenge of the arbitrator Franco Frattini admitted.

3. Conclusions

This is an incredible case – and this even in various aspects!

First, the behavior of the chairmen Franco Frattini is – frankly spoken – untenable for an arbitrator sitting in appeal proceedings concerning an eight-year ban on a Chinese athlete. While an arbitrator can certainly express his opposition to any forms of cruelty to animals, he cannot do this in such ill-tempered tweets. This applies in particular to his tweet of 28 May 2019, referring to „[t]his yellow face chinese monster […]“ – at a time when Franco Frattini was already serving as chairman in the CAS proceedings. Under these circumstances there is simply no conceivable excuse which would still allow him to sit.

Second, CAS, as any other arbitral tribunal where its award has been challenged, is invited by the Supreme Court to submit its observations on the arguments raised against the Award. Generally spoken, whether such a view should be expressed at all depends on the particularities of the case. Some arbitral tribunals might believe that such expression could amount to an unnecessary justification („qui s’excuse s’accuse„), others might want to get their record straight. The CAS, before the award is issued, first always exercises through its Secretary-General its scrutiny of the award and, subsequently, once its award has been challenged at the Supreme Court, regularly uses the opportunity to present its observations on the arguments raised against the award. Such filing is always issued by the Secretary-General of CAS and not by the members of the arbitral tribunal itself.² This applies also in the present case. In his observations, the Secretary-General emphasized not only that the objections against Franco Frattini had been raised belatedly but also stated that the latter, known as a fervent defender of the animal cause, was addressing in its tweets only the „dog killers“ but neither Sun Yang and his entourage nor the Chinese population in general. In the light of Franco Frattini’s ill-tempered tweets, CAS might have been better advised to have sought guidance from the old Roman saying „si tacuisses philosophus mansisses„³ and to have refrained from submitting observations.

Third, the Decision may also reach beyond its particularities. The case law of the Supreme Court under Art. 190(2)(a) PILA has, at least as to the independence and impartiality of the arbitrator in sport related cases, been criticized⁴. It is accepted that those cases were about the perceived lack of independence whereas the present case covers one of the rare occasions where an arbitrator went out of bounds by an actual and manifest lack of impartiality during the arbitration proceedings – though detected only after the issuance of the award. Nevertheless, the Decision sends an encouraging signal. The Supreme Court could actually have closed the door by imposing a strict(er) burden on Sung Yang to closely monitor Franco Frattini’s social media during the arbitral proceedings, as maintained by CAS. Generally, the Supreme Court is rather strict in this field.⁵ However, in a very detailed and balanced analysis of the underlying facts, the Supreme Court has come to the conclusion that in a time where individuals publish sometimes countless messages on social media like twitter it would not be advisable to be too demanding in this respect, otherwise the generally required duty of enquiry would be transformed into an obligation to carry out very expensive, if not almost unlimited investigations requiring considerable time (and money). In arguing this way the Supreme Court has drawn a fine but clear and important line! The duty of enquiry has its limits.

 

 

 

2021-01-27-Arbitration-Newsletter-4A_318_2020-1.pdf (pdf 825 kB)