Article 190(2)(a) of the Swiss Private International Law Act (PILA) provides that an award may be set aside if "the sole arbitrator was not properly appointed or if the arbitral tribunal was not properly constituted".

Pursuant to Article 190(2)(e) PILA, an award may also be set aside if it is "incompatible with public policy".

Article R57 of the Court of Arbitration for Sports (CAS) Rules provides as follows:

In November 2007, a middle-distance runner (X) was suspended for two years for breaching anti-doping rules.

In 2010, the Z Commission suspended X from athletics for life because of the athlete's refusal to submit to anti-doping tests. X appealed this decision before the CAS and requested legal aid. Three months later, a lawyer was appointed by the CAS to defend X's interests. X accepted that the dispute should be submitted to a sole arbitrator, whilst the Commission requested the appointment of a three-member tribunal. The CAS decided on a sole arbitrator. The appointed sole arbitrator held a hearing, during which he heard the parties, witnesses and experts.

On 26 July 2011, the sole arbitrator made an award, dismissing X's appeal and confirming the Commission's decision.

X filed a petition to set aside the award with the Swiss Supreme Court.

The Supreme Court dismissed the petition without inviting the Commission or the CAS to file any comments.

The Supreme Court held that, contrary to what was alleged, X had not been prevented from having her case heard by a three-member tribunal because she had not been assisted by a lawyer during the first three months of the proceedings. The Supreme Court noted that at the beginning of the hearing, X, who was at that point assisted by her lawyer, had confirmed that she had no objection to the composition of the arbitral tribunal. The Supreme Court held that X should have brought her arguments forward at that time, and the fact that she had not done so precluded her from raising this in setting aside proceedings.

X also sought to have the award set aside on the ground that the Commission was not an independent and impartial tribunal and that it had improperly conducted the proceedings. X disputed that Article R57(1) of the CAS Rules, which enables the CAS to decide a case de novo, could allow the sole arbitrator to remedy such a serious breach.

The Supreme Court held that X should have relied on Article 190(2)(a) PILA (irregular composition of the arbitral tribunal) and not on Article 190(2)(e) PILA (public policy), which is a subsidiary ground. X would not have succeeded even if she had relied on the correct provision. The Supreme Court noted that X had not contested either the independence and impartiality of the sole arbitrator or his conduct of the proceedings. The Supreme Court recalled its decision in Valverde (see Legal update, Swiss Supreme Court holds that principle of ne bis in idem forms part of public policy), where the first instance had refused to open disciplinary proceedings. The Supreme Court had, however, held that the CAS could itself investigate a case, and judge in appeal on the issue. The Supreme Court had also specified that the requirement of a double-tiered judicial review did not fall within the public policy ground of Article 190(2)(e) PILA. The Supreme Court considered that the decision rendered in Valverde could be applied by analogy in the present case and so on this basis, dismissed X's arguments.

Taking X's difficult financial situation into consideration, the Supreme Court waived costs for the federal proceedings.

This decision emphasises how crucial it is to rely on the right ground for setting aside an arbitral award, as the Supreme Court was reluctant to admit the appeal which relied on a subsidiary public policy ground, when a more specific ground existed.

Further, the decision can also be regarded as a useful reminder that parties are entitled to legal aid for CAS proceedings, which is different from commercial arbitration. Although in the present case the lack of representation at the initial stage of the proceedings did not have adverse consequences for the party, it does not follow from this decision that a party's right to be heard will necessarily always be deemed respected in the event of a late appointment. When legal aid is requested, the CAS should therefore not consider that it can delay the appointment of a lawyer with complete impunity.

The International Council of Arbitration for Sport (ICAS) is currently examining the financing of the CAS and will then proceed to study "CAS legal aid guidelines", depending on the available budget. Such guidelines might thus be published next year. For the moment, legal aid requests are examined on a case by case basis.

4A_530/2011.