I. Introduction
In a recent decision, the Swiss Supreme Court held that (i) the chairman and party-appointed arbitrators must comply with the same requirement of independence and impartiality; (ii) these requirements are not less stringent in sport arbitrations than they are in commercial arbitrations; (iii) the Supreme Court has jurisdiction to order the removal of an arbitrator further to a successful challenge. The Supreme Court seems further to acknowledge a presumption of impartiality and independency in favor of university professors who are appointed as arbitrators.
II. Facts
The Spanish professional cyclist, Alejandro Valverde Belmonte, was found guilty of violation of the Italian anti-doping rules. Thus, the Tribunale Nationale of the Comitato Olimpico Nazionale Italiano ("CONI") excluded him from any competition organised by the CONI or other sport federations in Italy for a period of two years.
Valverde appealed against this decision before the Court of Arbitration for Sport ("CAS"). The CONI nominated Professor Ulrich Haas as arbitrator. The latter accepted the mandate but disclosed that he had been involved in the revision of the World Anti-Doping Code of the World Anti-Doping Agency ("WADA") between 2006 and 2007.
The composition of the arbitral tribunal was confirmed by the CAS and none of the parties challenged Professor Haas' independence.
Then, as per CONI's request, the International Cyclist Union ("ICU") and the WADA became parties to the arbitration, as co-respondents. As the WADA became a party, Valverde disputed Professor Haas' independence and impartiality due to his previous activities in relation to the World Anti-Doping Code.
The challenge was rejected by the International Council of Arbitration for Sport ("ICAS") and Valrede challenged this decision before the Swiss Supreme Court.
III. Decision
For the Supreme Court, the chairman and the party-appointed arbitrators must meet the same requirement of independence and impartiality. The Supreme Court, however, acknowledged that a total independence may be idealistic. In particular, the nomination of its arbitrator by a party implies some kind of relationship between them. While this circumstance is inherent to arbitration, it may not allow that a party-appointed arbitrator behaves as an additional counsel for the party who nominated him.
For the Supreme Court, there is no reason for independence and impartiality being different in sport arbitrations than they are in commercial arbitrations. The Swiss Supreme Court repeated, however, that the specificities of the sport arbitration need to be taken into consideration. Among these specificities, are the limited choice of arbitrators (they have to be chosen in a pre-defined list) and the requirement that these arbitrators must have a real competence in sport matters. The Supreme Court noted that these specificities could result in these arbitrators having close contacts with sport organisations, specialized lawyers or experts in sport matters. As such, in the Supreme Court's view, these contacts do not jeopardize the arbitrator's independency and impartiality.
Moreover, still considering the specificities of sport arbitration, the Supreme Court outlined a presumption of impartiality in favor of a university professor who seats as an arbitrator although he had previously worked for one of the parties. For the Supreme Court, it should be assumed that this professor will make the difference between his two positions and thus will remain impartial. The Supreme Court, however, seems to limit this presumption to instances where the professor's past activities for the party pursued a general interest, were related to the professor's expertise in a specific field and consisted of limited assignments which were carried out long before the arbitration.
Considering more particularly professor Haas' case, the Supreme Court noted that his previous activities for one of the parties were completed years before the start of the arbitration. It further noted that professor Haas did not seem to have received a remuneration which would be comparable to the fees a lawyer would have charged for the same service. The Supreme Court considered also that professor Haas did apparently not work under the instructions of the party who nominated him as an arbitrator. Moreover, his previous activities for this party had no close connection with the case since they related to the issuance of a set of rules which were not applicable thereto. The Supreme Court also noted the absence of indication that professor Haas would receive more assignments from the same party in the future. Therefore, the Supreme Court rejected the challenge.
Incidentally, the Supreme Court also clarified a procedural issue after years of uncertainty. The Swiss Supreme Court acknowledged that it has jurisdiction to order the removal of an arbitrator whom has been successfully challenged. Up to now, it was debated whether the Supreme Court could take such step itself or whether it could only annul the challenged decision as it is normally the case in setting aside proceedings before the Supreme Court.
IV. Commentary
It is now confirmed: the requirement of independence and impartiality is the same for the party-appointed arbitrators as for the chairman of an arbitral tribunal.
More generally, this decision is in line with the Supreme Court's welcome tendency not to intervene in the arbitration process except for rare and extremely serious flaws. The decision is also in line with the position that sport arbitrations should be differentiated from commercial arbitrations. Sport arbitrations regularly require tailored decisions which do not necessarily fit commercial arbitrations.
As to the presumption of impartiality in favor of university professors which the Supreme Court seems to acknowledge, the specifics of the case should strictly limit the scope thereof.
Swiss Supreme Court's decision 4A_234/2010, in the matter Alejandro Valverde Belmonte vs Comitato Olimpico Nazionale Italiano, World Anti-Doping Agency and International Cycle Union (ATF). The full text of the decision is available in its original (French) language at http://www.bger.ch/fr/index/juridiction/jurisdiction-inherit-template/jurisdiction-recht/jurisdiction-recht-urteile2000.htm.
For further information on this
topic please contact at Tavernier Tschanz Frank Spoorenberg or
Nathalie Bürgenmeier by telephone
(+41 22 704 3700) or by fax (+41 22 704 3777) or by email
(spoorenberg@taverniertschanz.com
;buergenmeier@taverniertschanz.com).
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
