Swiss Supreme Court International Arbitration Decision of 25 July 2017
Due process (right to be heard) revisited
Please find herewith the English translation of a decision dated July 25, 2017. The decision is sport arbitration related and it is not without interest.
The Appellant, Alexei Lovchev, is an Russian weightlifter at the international level, who participated in the 2015 Weightlifting World Championship in Houston, USA, as a member of the Russian team. He won the gold medal and set two world records. In November 2015, the Appellant underwent a doping control that resulted in an Adverse Analytical Finding, (AAF) and showed the presence of the prohibited substance Ipamorelin in the Appellant’s sample in an extremely low concentration of 0.1 ng/ml. The WADA-accredited Laboratory B (B.________ Laboratory) conducted the controls and both the A and the B samples were found to be positive.
Following a hearing that took place before the IWF Committee in Budapest, the Committee issued a decision disqualifying the Appellant from the 2015 World Championships and imposing a sanction of ineligibility of four years. The IWF Committee held that it was comfortably satisfied that the analytical reports confirmed the existence of the prohibited substance Ipamorelin in the Appellant's sample.
The Appellant appealed this decision to the Court of Arbitration for Sport (CAS), which confirmed the IWF decision with an arbitral award rendered on December 1, 2016. The Arbitrators were Michael J. Beloff QC (Chairman), Ulrich Haas and Luigi Fumagalli.
Lovchev appealed to the Swiss Federal Tribunal requesting to annul the CAS Award and to revert the case back to CAS for a new decision, invoking in particular a violation of his right to be heard and a violation of public policy.
In essence, the Appellant argued that the CAS Panel violated his right to be heard by using the wrong concentration of the prohibited substance in question (1 ng/ml instead of 0.1 ng/ml). The Swiss Federal Tribunal dismissed this argument as not being part of the violation of the parties’ right to be heard (or public policy). In accordance with the well-established jurisprudence of the Federal Tribunal, a manifestly false or conflicting finding alone is not sufficient to annul an international arbitration award.
Furthermore, the Appellant alleged a violation of his right to be heard based on the fact that the CAS wrongly refused to admit his request for an expert report on the Limits of Detection [LOD], on Measurement Uncertainty [MU], and another analysis of the B sample. However, as could be found from the file of the CAS proceedings, the Appellant merely requested that the Respondent disclose the parameters and criteria for LOD and MU for Ipamorelin but had not asked for an expert report on LOD and MU.
The other point in the Appellant’s plea before the Federal Tribunal concerned his request to have the analysis of the B sample conducted by the WADA-accredited laboratory but using an alternative detection method. The Federal Tribunal equally rejected this argument as inadmissible criticism of an appellate nature in that the Appellant failed to make a plea under Article 190(2) PILA for his considerations that diverged from the Panel’s assessment (see 4A_80/2017 – this case – at 6.2). The Appellant argued that the Federal Tribunal therefore limited itself in controlling that the CAS Panel followed the procedure provided for in the IWF Anti-Doping Rules (the Appellant had the burden to rebut the presumption – based on the standard of a balance of probabilities) – of the violation of the anti-doping rules, which he failed to do in the case at hand (see 4A_80/2017, at 6.3). In particular, the Appellant should have raised doubts as to the results of the B.________ Laboratory (which was found to have complied with the applicable standards). The Appellant further alleged a violation of the principle of equal treatment because the CAS did not reveal a third analysis carried out by the B. Laboratory, but failed to substantiate in a sufficient manner why this was linked to the violation of the principle of equal treatment.
Finally, the Appellant tried to invoke a violation of the principle of good faith and the prohibition of abuse of rights based on the four-year ban on exercising his professional activity (which, he argued, in turn constituted a breach of public policy). Again, this was swiftly dismissed by the Federal Tribunal because the Appellant failed to substantiate how the different assessment of evidence by the Panel infringed public policy.
This Federal Tribunal judgment reiterated the limits in validly alleging a breach of a parties’ right to be heard: It is clearly insufficient to allege such violation due to a wrong interpretation made by the arbitral tribunal. In other words, a manifestly false or conflicting finding alone is not sufficient to annul an international arbitration award. It is necessary to establish that, due to the judicial oversight of the arbitral tribunal, the concerned party was deprived of the opportunity to adduce evidence and prove its position with respect to a procedural issue (BGE 127 III 576 E. 2 f. p. 580; see also 4A_80/2017, at 4).
Another point to note is the importance of making a clear, unequivocal and official request for an expert report before the arbitral tribunal if a party is to raise a violation of his right to be heard based on this ground at a later stage (i.e., before the Swiss Federal Tribunal, see 4A_80/2017, at 5).
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Despina MAVROMATI Charles PONCET
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