Publications

Com­men­tary by Axel Buhr on Swiss Fed­er­al Tri­bunal deci­sion 4A_424/2018 on Jan­u­ary 29, 2019

The deci­sion shows that a vio­la­tion of the right to be heard will not result in the set­ting aside of an inter­na­tion­al arbi­tral award, unless the peti­tion­er demon­strates that the vio­la­tion is like­ly to have had an adverse impact on the out­come of the case. The Swiss Fed­er­al Tribunal’s clas­si­fi­ca­tion of the right to be heard as a con­sti­tu­tion­al guar­an­tee of «for­mal nature» can be mis­lead­ing and should be abandoned.

I. Back­ground

[1] On 16 Feb­ru­ary 2017, Sara Errani (in the deci­sion and the fol­low­ing referred to as par­ty «A»), an Ital­ian ten­nis play­er, test­ed pos­i­tive to the banned sub­stance letro­zole after com­pet­ing in the 2017 Aus­tralian Open and Fed Cup.

[2] Fol­low­ing an inves­ti­ga­tion of the Inter­na­tion­al Ten­nis Fed­er­a­tion («ITF»), an Inde­pen­dent Tri­bunal («IT») with a deci­sion dat­ed 3 August 2017 sus­pend­ed A for two months (start­ing from the date of the deci­sion until 2 Octo­ber 2017) and dis­qual­i­fied her results from the time between 16 Feb­ru­ary 2017 (the date of the first test) and 7 June 2017 (the date of a repeat test, which was neg­a­tive), based on the rules of the ITF​’s 2017 Ten­nis Anti-Dop­ing Pro­gramme («TADP»).

[3] The deci­sion of the IT was sep­a­rate­ly appealed by A and the Ital­ian dop­ing agency NADO (in the deci­sion and the fol­low­ing referred to as par­ty «B») to the Court of Arbi­tra­tion for Sport («CAS») in Lau­sanne (Switzer­land). Where­as A request­ed the CAS to annul, or in the alter­na­tive lim­it, the dis­qual­i­fi­ca­tion of her results, B asked the CAS to extend the sus­pen­sion to two years.

[4] Accord­ing to Arti­cle 10.10.3 of the TADP, the sus­pen­sion peri­od (or «peri­od of inel­i­gi­bil­i­ty» in TADP par­lance) shall start, as a gen­er­al rule, at the date when the deci­sion is issued. If an anti-dop­ing rule vio­la­tion («ADRV») is prompt­ly admit­ted, Arti­cle 10.10.3.b of the TADP gives the arbi­tra­tors dis­cre­tion to «back­date» the begin­ning of the sus­pen­sion peri­od to an ear­li­er date, save that the sus­pen­sion time before the date of the deci­sion must not be longer than the time after it.

[5] Against this back­ground, the CAS invit­ed the par­ties in a hear­ing of the con­sol­i­dat­ed case, which was held on 9 Novem­ber 2017, to com­ment, among oth­er things, on the poten­tial start date of any addi­tion­al sus­pen­sion peri­od, assum­ing a hypo­thet­i­cal sus­pen­sion peri­od of more than two months. A main­tained that any fur­ther sus­pen­sion peri­od should start at one of three dates: «the date of the dop­ing con­trol, 3 August 2017, being the date of the IT deci­sion, or a date to be deter­mined between 3 August 2017 and the date of the new sanc­tion» (con­sid. B.a).

[6] In its deci­sion dat­ed 8 June 2018, the CAS sus­pend­ed A for fur­ther ten months, start­ing from the date of the deci­sion. With regard to a poten­tial back­dat­ing of the addi­tion­al sus­pen­sion, the CAS found (con­sid. 5.3):

«[…] the Pan­el does not find it appro­pri­ate to exer­cise its dis­cre­tion to back­date the com­mence­ment of the addi­tion­al peri­od of inel­i­gi­bil­i­ty. Art. 10.10.3 (b) TADP pro­vides a reward for prompt­ly admit­ting the ADVR [sic!]. The Pan­el, hav­ing com­pared the com­pet­ing sce­nar­ios, is doubt­ful whether the back­dat­ing of the com­mence­ment of the fur­ther peri­od of inel­i­gi­bil­i­ty is less harm­ful to the Ath­lete than not back­dat­ing. The Ath­lete who was not pro­vi­sion­al­ly sus­pend­ed and no longer inel­i­gi­ble to com­pete was free to com­pete as of 3 Octo­ber 2017, and won prizes and advanced in the rank­ing which would have been dis­qual­i­fied for the peri­od of back­dat­ing. Com­pared to those loss­es which are cer­tain, it is uncer­tain how suc­cess­ful the Ath­lete may be in any future tournaments.»

[7] A, who had par­tic­i­pat­ed in com­pe­ti­tions from 3 Octo­ber 2017, request­ed the Swiss Fed­er­al Tri­bunal to set aside the CAS deci­sion. Accord­ing to A, her state­ment dur­ing the hear­ing of 9 Novem­ber 2017 had been based on the impres­sion that the CAS deci­sion would be issued with­in one month of the hear­ing, where­as, in fact, the CAS deci­sion was only issued sev­en months lat­er (sec­tion 5.4.1). A argued that she had not received an oppor­tu­ni­ty to com­ment on a poten­tial back­dat­ing from 8 June 2018 and that her right to be heard had been vio­lat­ed in this respect.

II. Deci­sion

A. The Swiss Fed­er­al Tri­bunal Con­firms that the Athlete’s Right to be Heard Had Been Vio­lat­ed in Con­nec­tion with an Impor­tant Issue…

[8] The con­sid­er­a­tions of the Swiss Fed­er­al Tri­bunal start with a recap of its case law on the vio­la­tion of the right to be heard in adver­sar­i­al pro­ceed­ings as a ground for set­ting aside of an inter­na­tion­al arbi­tral award (con­sid. 5.2). The right to be heard in adver­sar­i­al pro­ceed­ings does not require a rea­soned award, but rather impos­es a min­i­mum duty on arbi­tral tri­bunals to ana­lyze and deal with the rel­e­vant issues. This duty is vio­lat­ed if an arbi­tral tri­bunal inad­ver­tent­ly or due to a mis­un­der­stand­ing fails to con­sid­er alle­ga­tions, argu­ments, evi­dence or offers of evi­dence which have been raised by a par­ty and are impor­tant for the case. A par­ty request­ing the Swiss Fed­er­al Tri­bunal to set aside an award must show how an inad­ver­tence of the arbi­tra­tors pre­vent­ed the par­ty from being heard on an impor­tant point.

[9] The Swiss Fed­er­al Tri­bunal recalls that not every man­i­fest inad­ver­tence con­sti­tutes a vio­la­tion of the right to be heard. A false or even arbi­trary find­ing is not in itself suf­fi­cient to set aside an inter­na­tion­al arbi­tral award. Rather, the Swiss Fed­er­al Tri­bunal inter­venes only if a par­ty suc­ceeds in estab­lish­ing that the inad­ver­tence of the arbi­tral tri­bunal pre­vent­ed it from pre­sent­ing its argu­ments and the nec­es­sary evi­dence on a ques­tion rel­e­vant to the out­come of the case.

[10] Based on these con­sid­er­a­tions and refer­ring to the sec­tion in the CAS deci­sion repro­duced above, the Swiss Fed­er­al Tri­bunal finds that A in fact received an oppor­tu­ni­ty to com­ment on the back­dat­ing issue at the hear­ing of 9 Novem­ber 2017, but that A appar­ent­ly failed to take a clear stance (con­sid. 5.6).

[11] Accord­ing to the Swiss Fed­er­al Tri­bunal, it is evi­dent from the CAS deci­sion that the CAS con­sid­ered results which A obtained after 9 Novem­ber 2017 and thus had not been specif­i­cal­ly addressed at the hear­ing (con­sid. 5.7). Although A had received an oppor­tu­ni­ty to com­ment on the back­dat­ing issue in gen­er­al, A was right, in the Swiss Fed­er­al Tribunal’s view, to point out that she could not have expect­ed that the CAS would rule so late, sev­en months after the hear­ing of 9 Novem­ber 2017 (con­sid. 5.7). The Swiss Fed­er­al Tri­bunal also acknowl­edges that A was able to com­ment at the hear­ing only on the effects of the back­dat­ing from the date of the hear­ing, but not on future effects of the back­dat­ing from the date of the CAS deci­sion (con­sid. 5.7).

[12] The Fed­er­al Tri­bunal con­cludes that, by assess­ing A’s inter­ests and the results she had obtained after the hear­ing of 9 Novem­ber 2017 with­out first offer­ing her an oppor­tu­ni­ty to com­ment on the effects of a back­dat­ing from the date of the CAS deci­sion, the CAS had vio­lat­ed A’s right to be heard (con­sid. 5.7).

B. …But Nev­er­the­less Dis­miss­es the Athlete’s Request to Set Aside the CAS Decision

[13] Despite the Swiss Fed­er­al Tribunal’s find­ing that the CAS had vio­lat­ed A’s right to be heard, A’s request to set aside the CAS deci­sion was unsuccessful.

[14] Refer­ring to its more recent case law, the Swiss Fed­er­al Tri­bunal recalls that there is no need to set aside an award if it is unclear whether the vio­la­tion has had an impact on the out­come of the pro­ceed­ings. The per­ti­nent case law is sum­ma­rized by the Swiss Fed­er­al Tri­bunal in con­sid. 5.2.2 as fol­lows (infor­mal translation):

«5.2.2 Undoubt­ful­ly, the right to be heard is a con­sti­tu­tion­al guar­an­tee of a for­mal nature. How­ev­er, since it is not an end in itself, when it is not clear what influ­ence its vio­la­tion may have had on the pro­ce­dure, there is no rea­son to set aside the chal­lenged deci­sion (BGE 143 IV 380, con­sid. 1.4.1 and the deci­sions cit­ed). This case law also applies, mutatis mutan­dis, to inter­na­tion­al arbi­tra­tion (deci­sion 4A_247/2017 of 18 April 2018, con­sid. 5.1.3). Thus, in addi­tion to the alleged vio­la­tion, the par­ty alleged­ly affect­ed by the arbi­tra­tors’ inad­ver­tence must demon­strate, on the basis of the grounds set out in the chal­lenged award, that the facts, evi­dence or law which it had duly pre­sent­ed, but which the arbi­tral tri­bunal failed to take into con­sid­er­a­tion, were such as to influ­ence the out­come of the dis­pute (BGE 142 III 360, con­sid. 4.1.3 and the deci­sion cited).»

[15] Based on the cit­ed case law, the Swiss Fed­er­al Tri­bunal finds that A failed to demon­strate that the vio­la­tion of her right to be heard could have had any impact on the deci­sion of the CAS (con­sid. 5.7). Accord­ing to the Swiss Fed­er­al Tri­bunal, even if A had been again invit­ed to com­ment on the start of the sus­pen­sion peri­od at the time before the CAS deci­sion was issued, it would have been «impos­si­ble» for A to pre­dict her future results and to com­pare them against her results of the time before the date of the CAS decision.

[16] Not­ing that the back­dat­ing of the sus­pen­sion peri­od was in any way sub­ject to the dis­cre­tion of the CAS pur­suant to Arti­cle 10.10.3.b of the TADP, the Swiss Fed­er­al Tri­bunal dis­miss­es A’s request to set aside the CAS deci­sion (con­sid. 5.7).

III. Com­ments

[17] The deci­sion shows that the Swiss Fed­er­al Tribunal’s clas­si­fi­ca­tion of the right to be heard as a con­sti­tu­tion­al guar­an­tee «of for­mal nature» is out­dat­ed, and lit­tle more than an emp­ty phrase.

[18] Pre­vi­ous­ly, the con­sti­tu­tion­al guar­an­tee was con­sid­ered for­mal in nature in that a vio­la­tion of the right to be heard had to result in the set­ting aside of the chal­lenged deci­sion, no mat­ter whether the vio­la­tion adverse­ly impact­ed the out­come of the case or not (see e.g. deci­sion 4P.275/1992 of 7 April 1993, con­sid. 2, and Bern­hard Berger/​Franz Keller­hals, Inter­na­tion­al and Domes­tic Arbi­tra­tion in Switzer­land, 3^rd ed. Berne 2015, n. 1755).

[19] In its more recent case law, the Swiss Fed­er­al Tri­bunal had already toned down its strict approach con­sid­er­ably (in line with requests of Swiss legal author­i­ties; see Han­sjörg Seil­er, Abschied von der formellen Natur des rechtlichen Gehörs, SJZ 2004, p. 377 et seqq.). But the court still used to add that the right to be heard was a con­sti­tu­tion­al right «of for­mal nature, the vio­la­tion of which in prin­ci­ple leads to the set­ting aside of the chal­lenged deci­sion, regard­less of the chances of suc­cess of the recourse on the mer­its» (empha­sis added; see e.g. BGE 143 IV 380, con­sid. 1.4.1, and deci­sion 4A_247/2017 of 18 April 2018, con­sid. 5.1.3; both referred to in con­sid. 5.2.2 quot­ed above).

[20] In pro­ceed­ings for the set­ting aside of inter­na­tion­al arbi­tra­tion awards, the mean­ing of the Swiss Fed­er­al Tribunal’s def­i­n­i­tion has always been some­what dif­fi­cult to under­stand (as it was unclear to what kind of «suc­cess of the recourse on the mer­its» the Swiss Fed­er­al Tri­bunal exact­ly referred) and has been right­ful­ly dropped. In the same vein, the Swiss Fed­er­al Tri­bunal should also stop call­ing the nature of the right to be heard for­mal. It can be mis­lead­ing because based on its for­mer def­i­n­i­tion it is no longer true.

[21] In depar­ture of its pre­vi­ous case law, and in line with requests of one of the lead­ing author­i­ties in Switzer­land to aban­don this con­cept for set­ting aside pro­ceed­ings (B/K, n. 1756), the Swiss Fed­er­al Tri­bunal nowa­days states that «when it is not clear what influ­ence its vio­la­tion may have had on the pro­ce­dure, there is no rea­son to set aside the chal­lenged deci­sion» (con­sid. 5.2.2).

[22] For arbi­tra­tion prac­ti­tion­ers the deci­sion is a force­ful reminder of the dif­fi­cul­ties peti­tion­ers request­ing the set­ting aside of an inter­na­tion­al arbi­tral award based on a vio­la­tion of their right to be heard must over­come: Peti­tion­ers must not only estab­lish that their right to be heard was vio­lat­ed in con­nec­tion with an impor­tant issue of the case, but also show that such vio­la­tion was like­ly to have had an adverse impact on the out­come of the case.

[23] By rais­ing the stakes for due process com­plaints, Swiss arbi­tra­tion pro­ceed­ings will ben­e­fit from a more effi­cient dis­pute res­o­lu­tion framework.

Zitier­vorschlag:
Axel Buhr, The Right to be Heard – a Con­sti­tu­tion­al Guar­an­tee of No For­mal Nature, in: dRSK, pub­liziert am 9. Mai 2019