There has been a noticeable increase in the number of challenges brought against awards of the Court of Arbitration for Sport (CAS) over the past few years (see Legal update, Swiss Supreme Court rendered 52 arbitration cases in 2010). In 2011, at least 20 petitions were introduced against CAS awards, constituting the majority of challenges to international arbitral awards before the Swiss Supreme Court. While many of those petitions were dismissed without discussion on the merits, a large number dealt with issues which show a trend towards the application of different standards in sports arbitration or which are of general importance for international arbitration.

The significance of CAS arbitration in Switzerland is reflected in the topic chosen for the ASA annual conference, "Sports Arbitration: a Coach for other Players?", which took place in Lausanne on 27 January 2012.

In recent decisions, the Swiss Supreme Court has tended to be more liberal when examining the formal requirements of arbitration agreements in the area of sports arbitration than it is in the area of commercial arbitration. Although Article 178(1) of the Private International Law Act (PILA) requires that the arbitration agreement be made in writing or in any other form "evidenced by text", the Supreme Court seems to be placing increasing importance on the issue of (implied) consent or good faith.

This liberal approach was expressly referred to and confirmed in three decisions rendered in 2011. In a ruling of April 2011 (decision 4A_640/2010), concerning a doping dispute, the Supreme Court considered an arbitration clause by reference to be valid, citing overarching considerations of policy, for example, the need to favour an expeditious resolution of such disputes by specialised courts such as the CAS (see Legal update, Swiss Supreme Court dismisses appeal to set aside CAS award for lack of jurisdiction).

In a ruling of September 2011 (decision 4A_103/2011), the Supreme Court upheld an award according to which an arbitration clause in favour of the CAS contained in a licence agreement could be extended to claims arising out of "ancillary" sales agreements (see Legal update, Swiss Supreme Court confirms broad interpretation of scope of arbitration agreement). The latest illustration of this liberal trend can be found in a decision of the Supreme Court of 7 November 2011, which is discussed in full in Legal update, Swiss Supreme Court confirms validity of defective arbitration agreement.

In one notable case, a CAS panel invited the parties to make a submission on costs three days before it was scheduled to render its final award. Despite the parties' requests to allow them more time, the panel handed down its decision on the scheduled date, which was a Monday, meaning that it did not even allow the parties one working day to respond. In the final award, it ruled on the issue of costs and simply indicated that it was not necessary for the parties to provide additional information on the issue.

The Swiss Supreme Court rightly held that this conduct manifestly violated the parties' right to be heard. If an arbitral tribunal requests parties to undertake an action without allowing reasonable time for them to comply, this is contrary to the principle of good faith.

Challenges to international arbitral awards before the Swiss Supreme Court are rarely successful. Such cases as this one, however, highlight the importance of having a final recourse to ensure that arbitral proceedings are held to the highest standards of fairness and due process.

At its session of 15 November 2011, the International Council of Arbitration for Sports (ICAS) approved several amendments to the 2004 Code of Sports-related Arbitration of the Court of Arbitration for Sport (CAS Code), which entered into force on 1 January 2012. One of the main features of this new version is that it abandons the old regime in S14, which provided that the ICAS had to respect a specific distribution key when establishing the list of CAS arbitrators. The provisions allowing for consultation proceedings, pursuant to which various sports organisations and associations could request advisory opinions from the CAS, were also abandoned. Other key changes are the inclusion of provisions allowing for consolidation of proceedings and for the panel to rule on its own jurisdiction.

As reported in Article, Switzerland: round-up 2010/2011, the Swiss Rules underwent revision in the course of 2011. Although the Swiss Rules are based on the UNCITRAL Arbitration Rules, the objective of this revision was not to mirror the changes made to those rules in 2010, or to introduce major changes in general, but merely to reflect practical developments since 2004. One of the aims was also to render the Swiss Rules compatible with domestic arbitration.

Amongst the more substantive changes, the following are worth mentioning:

The final text of the revision has not yet been made public, but it is already known that the new Rules will enter into force on 1 June 2012.

In March 2008, a parliamentary initiative was introduced with the proposal that Article 7 of the PILA be amended to reinforce and broaden the principle of "kompetenz-kompetenz" in international arbitration (see Legal update, Switzerland: anticipated developments of 2010: Revision of rules governing the negative effect of the "kompetenz-kompetenz" principle in Swiss legislation).

The Swiss Arbitration Association (ASA), invited to comment on the proposal, expressed its basic support for the initiative, but raised the question of whether there might not be a need for further revisions to Chapter 12, which has now been in force for over 20 years (the ASA comments are published in ASA Bull. 3/2011, pp. 585 et seq.). Markus Wirth sets outs possible points of reform in his recent article "Chapter 12 PILA – Is it Time for Reform? If Yes, What Shall be Its Scope? ", published in Müller/Rigozzi (Eds), New Developments in International Commercial Arbitration 2011, Zurich/Basel/Geneva 2011, pp. 51 et seq.

Parliament has yet to respond to this suggestion.