Article 186(1)bis of the Swiss Private International Law Act (PILA) relates to the stay of arbitral proceedings by the arbitral tribunal, and provides that the tribunal

Article 190(2)(a) PILA provides that

A and B are Belgian professional tennis players. They are affiliated to the Dutch speaking branch of the Belgian tennis federation, the Vlaamse Tennisvereniging (VTV), the disciplinary commission of which is the Vlaams Doping Tribunal for doping matters (VDT).

In 2009, the VDT decided to suspend A and B for one year on the ground that they had breached anti-doping rules. A and B challenged this decision before the CAS, as did the World Anti-Doping Agency (WADA) in separate proceedings.

In "partial" awards, the CAS upheld its jurisdiction and denied A and B's requests to suspend the arbitral proceedings, despite actions pending before Belgian state courts and the European Court of Human Rights. A and B filed a petition to set aside these awards, claiming, among other things, that the arbitration clause incorporated in the VTV rules was not valid because it originated in a statutory act.

The Supreme Court dismissed the appeal.

The petitioners had raised the argument that the CAS is not an independent tribunal in doping-related disputes because it is a decentralised organ of a number of federations which appear before it and which have an interest in the outcome of the dispute, including WADA. The Supreme Court dismissed this argument on the ground that it had not been raised before the CAS itself.

The Supreme Court then examined Article 190(2)(a) PILA and confirmed the unique nature of sports arbitration with respect to the professional athletes' inability to choose whether to consent, or not, to arbitration. This contrasts with the principle of voluntary arbitration which underlies commercial arbitration. In the awards at issue, the CAS had based its jurisdiction both on a Belgian Decree granting exclusive competence to the CAS for doping disputes and on the VTV rules which incorporate the same arbitration clause. According to A and B, no valid consent to arbitration could be found in the VTV arbitration clause because its incorporation in the VTV rules had been prescribed by the Belgian Decree.

A and B contended that an athlete cannot validly consent to the arbitration clause if it derives from a statutory act. In its analysis, the Supreme Court confirmed the validity of the incorporation by reference of the arbitration clause in sports arbitration. In this context, it affirmed its liberal approach to the formal requirements of the arbitration agreement in sports arbitration (see Article, Switzerland: round-up 2011/2012). In the Supreme Court's view, this liberal approach fosters a swifter resolution of the disputes by specialised tribunals showing sufficient guarantees of independence and impartiality, such as the CAS.

More specifically with respect to the arguments raised by A and B, the Supreme Court found them to be baseless. It declared that in the situation where the athlete has no other choice but to adhere to the arbitration clause contained in the federation's rules, it makes little difference from the point of view of freedom of contract whether the federation adopted the arbitration clause on its own initiative or if such adoption was prompted by legislation of the state where the federation has its seat.

The Supreme Court then turned to the petitioners' assertion that the CAS did not have jurisdiction to take up the appeal lodged by WADA, absent a legal interest on the part of the latter. The Supreme Court stressed the difference between what it called the "usual" or "typical" arbitration and the "atypical" arbitration (that is - sports arbitration), when it expressed doubts that the case law on non-signatories that applies in commercial arbitration could be extended to sports arbitration. While in a "typical" arbitration the issue as to whether the arbitration clause binds a non-signatory party triggers the ratione personae jurisdiction of the tribunal, in sports arbitration by contrast, it is a procedural question which relates to the party's standing to initiate proceedings (qualité pour agir).

The Supreme Court therefore concluded that A and B invoked the wrong legal basis when challenging the CAS' jurisdiction. In any event, the Supreme Court pointed out that if the petitioners had alleged a breach of their right to be heard (it was established that CAS had failed to address the issue of WADA's standing in the partial awards), their appeal would have nonetheless be dismissed. Indeed, such a ground cannot be invoked against interim awards (sentences incidentes), such as the awards under scrutiny. Nevertheless, the Supreme Court analysed the merits of the petitioners' arguments on WADA's lack of standing. It observed that they mainly relied on Article 76 al. 1 Swiss Federal Tribunal Act (in connection in particular with the argument that WADA did not take part in the proceedings before the VDT), as well as on the case law applied to non-profit associations (in support of an assertion that WADA lacked a legal interest in the dispute). The Supreme Court came to the conclusion that because these rules are strictly limited to the admissibility of appeals before the Supreme Court, they did not apply, even by analogy, to lower state courts and a fortiori not to private mechanisms of dispute resolution, such as arbitral tribunals.

Lastly, the Supreme Court developed the principle of lis pendens (exception de litispendance) provided by Article 186(1)bis PILA. The Supreme Court recalled that decisions on the stay of arbitral proceedings are procedural orders and, as such, they cannot be challenged before the Supreme Court, except when the tribunal implicitly ruled upon its jurisdiction or on the regularity of its constitution. This was the case with these partial awards. Also, the three conditions provided by Article 186(1)bis PILA for the suspension of arbitral proceedings must be cumulatively fulfilled. Insofar as A and B only addressed one of these conditions in their petition, they failed to establish that all three conditions were not met. Their argument was therefore rejected.

This decision illustrates the ever greater divide between sports arbitration (which the Supreme Court terms "atypical") and other types of arbitration (called "typical"), notably the admission of the somewhat contradictory concept of "mandatory arbitration" in sports-related disputes. This leads to the question (which is not addressed by the Supreme Court) whether this "mandatory arbitration" in sports matters fulfils the prerequisites necessary for limiting the right of access to court as enshrined in Article 6 of the ECHR, namely whether it pursues a legitimate aim that stands in a reasonable relationship of proportionality with the means employed (see ECHR [Grand Chamber] case no. 26083/94, Waite and Kennedy v. Germany, 18 February 1999, § 59).

The peculiarities of sports arbitration extend to the approach to non-signatories to the arbitration clause. In a "typical" commercial arbitration, this would raise a question of jurisdiction; whereas in sports arbitration it is characterised as a procedural question of standing.

This decision also confirms the Supreme Court's consistent case law with respect to the restricted nature of challenges to decisions on the suspension of arbitral proceedings under Article 186(1)bis PILA. It is, however, worth noting that the Supreme Court referred to the differing opinion expressed by some authors who advocate the total exclusion of any such challenge. In any event, practitioners representing parties should note the need to address all three conditions required under Article 186(1)bis PILA in order to warrant a suspension, since they apply cumulatively.