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In its ruling 4A_384/2017 of October 8, 2017, the Swiss Supreme Court (TF)—the highest judicial authority in Switzerland and the only appeal authority against an award issued by the Court of Arbitration for Sport (CAS/TAS) at Lucerne—ruled that (i) despite not being an arbitral award, the termination order issued by the president of the CAS appeals arbitration division is subject to appeal for annulment before the TS, and (ii) not being able to appeal against an award issued by the CAS for procedural reasons does not imply a breach of public policy.

The case revolved around a middle-distance runner sanctioned with a four-year suspension due to a positive doping test. Eight months after receiving the ruling on the suspension, the runner appealed to the CAS. However, the president of the appeals arbitration division issued a termination order, declaring the appeal inadmissible for being submitted too late, under article R49 of the CAS Code.

The athlete appealed to the TF for an annulment, alleging a breach of articles 6 and 8 of the European Convention on Human Rights (ECHR), which regulate the right to effective judicial protection and the right to privacy, respectively. He also alleged a breach of public policy that, in his opinion, would include the right to appeal the CAS arbitral awards.

In its ruling, the TF concluded that, as the ruling terminated the arbitration proceedings for a procedural reason, without the panel being able to review it, it was consequently a ruling of inadmissibility and was, therefore, subject to application for annulment, even though it had not been issued by an arbitral panel. Thus, the TF allowed the appeal to be heard.

With this ruling, the TF confirms once again that under Swiss law arbitrators do not have to be the ones to issue a ruling that is the subject of an application for annulment. The key is not the source of the ruling, but its content.

However, with regard to the argument relating to articles 6 and 8 ECHR, the TF reconfirmed that, under Swiss law and according to its settled case law, a breach of the ECHR does not justify an annulment that can be directly enforceable as such before the TF, although it is taken into account in its public policy analysis.

As regards an alleged “breach of public policy,” the TF also reconfirmed that the public policy in Switzerland does not include “the right to appeal to a higher court.” With reference to this last point, it should be noted that in international arbitration Swiss law is one of the few that allows, under certain conditions, a prior waiver of the right to appeal before the TF for the annulment of an arbitral award issued in Switzerland (see article 192 of the Federal Statute on Private International Law). In sports arbitration, however, the requirements for the waiver to be valid are stricter than those required in international commercial arbitration (see TF ATF 133 III 235 ruling).

The TF rejected the appeal for annulment.

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marco.vedovatti@cuatrecasas.com

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