Chambers 2021 The Legal 500 WWL TL Arbitration 21 2x wwl 2x cc16 2x eg20

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Global Rejection of “Fishing Expedition” Upheld

Simon Gabriel; in: dRSK, 27.05.2021
Com­men­tary on Swiss Fed­er­al Tri­bunal deci­sion 4A_438/2020 on March 15, 2021

The Swiss Fed­er­al Tri­bunal con­firmed that an arbi­tral tri­bunal, which had reject­ed sev­er­al doc­u­ment pro­duc­tion requests as undue «fish­ing expe­di­tion», did not infringe the right to be heard. The deci­sion also touch­es on the ques­tion to what extent pro­ce­dur­al deci­sions must be rea­soned with­out, how­ev­er, offer­ing a final answer.

I. Back­ground

[1] A pro­fes­sion­al foot­ball play­er (B) sued a pro­fes­sion­al foot­ball club (A) based on his employ­ment con­tract for cer­tain pay­ments as a result of an alleged breach of con­tract. After a first deci­sion by FIFA’s Dis­pute Res­o­lu­tion Cham­ber, the dis­pute was appealed and referred to CAS arbi­tra­tion pro­ceed­ings with seat in Lau­sanne, Switzer­land (sec. A and B).

[2] Dur­ing the CAS arbi­tra­tion pro­ceed­ings, a doc­u­ment pro­duc­tion phase took place. A sub­mit­ted sev­er­al doc­u­ment pro­duc­tion requests which also includ­ed doc­u­ments in con­nec­tion with B’s sub­se­quent employ­ers (foot­ball clubs C and D) and his agent (E):

«In rela­tion to D.________ FC

  • Employ­ment con­tract (s) signed with D.________ FC in Jan­u­ary 2018 as well as any and all annex­es to said con­tract and/​or side-agreements;
  • Any and all emails exchanged between the Play­er, his agent and D.________ FC lead­ing up to the con­clu­sion of the employ­ment con­tract with D.________ FC;
  • Copy of any and all pre-con­trac­tu­al doc­u­ments, offers, mem­o­ran­dum of under­stand­ing exchanged and/​or signed with D.________ FC;

In rela­tion to C.________:

  • Employ­ment con­tract (s) signed with C.________ in August 2018 as well as any and all annex­es to said con­tract and/​or side-agreements;
  • Any and all emails exchanged between the Play­er, his agent and C.________ lead­ing up to the con­clu­sion of the employ­ment con­tract in August 2016;
  • Copy of any and all pre-con­trac­tu­al doc­u­ments, offers, mem­o­ran­dum of under­stand­ing exchanged and/​or signed with C.________ as of July to August 2016;

In rela­tion to his Agent E.________

  • Rep­re­sen­ta­tion Agree­ment (s) signed with Mr. E.________ and any oth­er third agent in rela­tion to his agency activ­i­ties with regards to him sign­ing an employ­ment con­tract with A.________ and/​or in force dur­ing said time period.»

(Sec. 4.2)

[3] By let­ter dat­ed 6 Jan­u­ary 2020, the arbi­tral tri­bunal grant­ed one of A’s doc­u­ment pro­duc­tion requests and reject­ed the remain­ing requests with the sen­tence: «All oth­er requests for pro­duc­tion of doc­u­ments are reject­ed». Upon inquiry of A, the arbi­tral tri­bunal con­firmed on the fol­low­ing day that A’s remain­ing requests were indeed reject­ed (sec. 4.2).

[4] On 4 Feb­ru­ary 2020, A sub­mit­ted that it «reserves all its rights in con­nec­tion with the deci­sion of the Pan­el noti­fied on 6 Jan­u­ary 2020…» (sec. B).

[5] On 14 Feb­ru­ary 2020, dur­ing the arbi­tral hear­ing, the pres­i­dent of the arbi­tral tri­bunal explained that the arbi­tral tri­bunal was of the view that the reject­ed doc­u­ment pro­duc­tion requests amount­ed to a kind of «fish­ing expe­di­tion» (sec. 4.2).

[6] At the end of the hear­ing, both par­ties stat­ed that they had no objec­tions to the man­ner in which the pro­ceed­ings had been con­duct­ed and that their respec­tive right to be heard was con­sis­tent­ly respect­ed (sec. B).

[7] Final­ly, an arbi­tral award was ren­dered and A sub­mit­ted a set­ting aside appli­ca­tion to the Swiss Fed­er­al Tri­bunal on the ground of infringe­ment of its right to be heard con­cern­ing the par­tial rejec­tion of its doc­u­ment pro­duc­tion requests (sec. C).

II. Deci­sion

[8] The Swiss Fed­er­al Tri­bunal dis­missed A’s set­ting aside appli­ca­tion and upheld the award for the fol­low­ing rea­sons in particular:

[9] First, the Swiss Fed­er­al Tri­bunal did not accept A’s argu­ment that its doc­u­ment pro­duc­tion requests were not suf­fi­cient­ly con­sid­ered by the arbi­tral tribunal.

[10] The Swiss Fed­er­al Tri­bunal con­sid­ered that the sen­tence «All oth­er requests for pro­duc­tion of doc­u­ments are reject­ed» clear­ly showed that the arbi­tral tri­bunal had not over­looked these requests, but rather decid­ed them (sec. 4.2).

[11] More­over, the Swiss Fed­er­al Tri­bunal con­sid­ered that requests with the «over­ly broad» phras­ing of «any and all» doc­u­ments on cer­tain top­ics with­out fur­ther spec­i­fi­ca­tion of the rel­e­vance for the deci­sion may be glob­al­ly reject­ed as a «fish­ing expe­di­tion» with­out any fur­ther expla­na­tions (sec. 4.2).

[12] Sec­ond, the Swiss Fed­er­al Tri­bunal also empha­sized that after the expla­na­tion of the pres­i­dent dur­ing the hear­ing, A had not fur­ther insist­ed on its pro­duc­tion requests and also refrained from mak­ing an objec­tion or a caveat for infringe­ment of the right to be heard (sec. 4.2).

[13] For these rea­sons, the Swiss Fed­er­al Tri­bunal con­sid­ered that the arbi­tral tri­bunal had not infringed A’s right to be heard.

III. Com­ments

[14] Three points are of par­tic­u­lar impor­tance for arbi­tra­tion prac­ti­tion­ers who are active in arbi­tral pro­ceed­ings with place of arbi­tra­tion in Switzerland:

[15] First, the case illus­trates that arbi­tral tri­bunals in civ­il law juris­dic­tions often apply a fair­ly strict stan­dard to requests for pro­duc­tion of doc­u­ments. Requests refer­ring to «any and all doc­u­ments» with­out detailed fur­ther spec­i­fi­ca­tion of the rel­e­vance for the deci­sion are often reject­ed as over­ly broad, even if the request­ed cat­e­go­ry of doc­u­ments in prin­ci­ple shows a con­nec­tion to the case. The Swiss Fed­er­al Tri­bunal express­ly con­firmed that such an approach does not per se infringe the par­ties’ right to be heard. It is thus advis­able for coun­sel to define cat­e­gories of doc­u­ments sought for pro­duc­tion in Swiss arbi­tra­tion pro­ceed­ings as nar­row­ly and pre­cise­ly as pos­si­ble and specif­i­cal­ly demon­strate (e.g. with ref­er­ence to the mer­its sub­mis­sions) why these doc­u­ments are indeed rel­e­vant for the deci­sion of the case.

[16] Sec­ond, Swiss lex arbi­tri pro­vides for a strict onus of the par­ties to instant­ly and express­ly object to pro­ce­dur­al direc­tions, if they con­sid­er that the arbi­tral tri­bunal there­by infringes their pro­ce­dur­al rights (such as the right to be heard; Art. 182.4 Swiss Pri­vate Inter­na­tion­al Law Act; «PILA»). In par­tic­u­lar, the par­ties must not keep poten­tial objec­tions in reserve and only sub­mit them in set­ting aside pro­ceed­ings when they are not sat­is­fied with the out­come of the pro­ceed­ings on the merits.

[17] Indeed, it is not uncom­mon that the pres­i­dent of an arbi­tral tri­bunal sit­ting in Switzer­land asks at the end of the hear­ing whether the par­ties have any objec­tions to the man­ner in which the pro­ceed­ings were con­duct­ed. For a par­ty that placed objec­tions dur­ing the pro­ceed­ings it is advis­able to express­ly and clear­ly state that those objec­tions are upheld. Oth­er­wise, there is a con­sid­er­able risk that these past objec­tions will be con­sid­ered as waived and thus can­not form the basis of a poten­tial future set­ting aside appli­ca­tion (BGer 4A_407/2012, sec. 3.2.1;AXEL BUHR, Hohe Anforderun­gen an mündliche Ver­fahren­srü­gen in Schiedsver­hand­lun­gen, in: dRSK, pub­lished on 19 March 2013).

[18] Third, the deci­sion also touch­es on the ques­tion to what extent pro­ce­dur­al deci­sions (such as the present deci­sion on doc­u­ment pro­duc­tion requests) need to be rea­soned by the arbi­tral tri­bunal. It can be con­clud­ed from the con­sid­er­a­tions of the Swiss Fed­er­al Tri­bunal that a min­i­mal rea­son­ing is expect­ed for pro­ce­dur­al deci­sions (see above, para. 11). At the same time, the thresh­old to be met appears as fair­ly low as the glob­al ref­er­ence to a fish­ing expe­di­tion was con­sid­ered as suf­fi­cient, in order to reject sev­er­al doc­u­ment pro­duc­tion requests.

[19] It would be infor­ma­tive to know whether the Swiss Fed­er­al Tri­bunal applies the same or a dif­fer­ent stan­dard to the rea­son­ing of pro­ce­dur­al deci­sions than it applies to the rea­son­ing of arbi­tral awards. In the lat­ter case, the Swiss Fed­er­al Tri­bunal has held in con­stant jurispru­dence that the prin­ci­ple of the right to be heard in the sense of Arti­cle 190.2 lit. d PILA does not entail a right of the par­ties to a rea­soned award in inter­na­tion­al arbi­tra­tion pro­ceed­ings (BGE 134 III 186, sec. 6.1). In the view of the author, the require­ments for the rea­son­ing of a pro­ce­dur­al deci­sion should not be stricter than for an arbi­tral award. Nev­er­the­less, in view of the present case, it appears as advis­able for arbi­tra­tors to give at least a brief rea­son­ing also for pro­ce­dur­al decisions.