In a recent decision,(1) the Supreme Court granted a request for revision and annulled a Court of Arbitration for Sport (CAS) award based on justifiable doubts as to the impartiality of the presiding arbitrator.

Facts

In the context of an unannounced doping test in September 2018, Chinese professional swimmer Sun Yang refused to release his samples to the control officers as he considered that they had not shown the necessary certifications for testing. In January 2019 the anti-doping commission of the International Swimming Federation (FINA) cleared the swimmer of any violation of anti-doping rules. In February 2019 the World Anti-Doping Agency (WADA) appealed the commission's decision before the CAS. In an award of 28 February 2020, the CAS found that the swimmer had violated the FINA Doping Control Rules and suspended him for eight years from the date of the award.

The swimmer filed a request for revision of the CAS award before the Supreme Court, seeking the annulment of the award and disqualification of the presiding arbitrator.(2) In support of his request for revision, the swimmer held that further to the publication of an article on a website on 15 May 2020, he had discovered that on repeated occasions in 2018 and 2019 the presiding arbitrator had published unacceptable comments about Chinese nationals on his Twitter account which, in the swimmer's view, raised legitimate doubts as to the arbitrator's impartiality in a dispute involving a Chinese athlete.

Decision

The Supreme Court first clarified an issue that had been left undecided in its previous decisions – namely, that:

the discovery, after the expiry of the time-limit to challenge an arbitral award, of a ground requiring the disqualification of an arbitrator may justify the filing of a request for revision of that award before the Supreme Court, provided that the requesting party could not have discovered the ground for disqualification during the arbitral proceedings by using the requisite diligence, i.e. the attention required by the circumstances.(3)

In doing so, the Suprme Court applied its reasoning in a previous decision,(4) as well as the principle provided for in the new Article 190a(1)(c) of the Private International Law Act.(5)

The Supreme Court then dealt with WADA's arguments and the CAS's observations that the applicant could have discovered the facts on which he had based his request for revision during the arbitral proceedings if he had used the required diligence. This is because the incriminated tweets had been published between May 2018 and June 2019 and were easily detectable. They claimed that the applicant should have made a combined search of the presiding arbitrator's name and "China" on Google, which would have been sufficient to detect the disputed tweets. Further, the presiding arbitrator's Twitter account was public and it was reasonable to expect that the applicant had examined "leading social networks such as Facebook, Twitter, Instagram".(6)

The Supreme Court rejected these arguments and observations. It held that the question to be answered was not whether the applicant could have accessed the disputed tweets during the arbitration proceedings, but only whether he could be accused of not having undertaken the diligence required by the circumstances when looking for elements likely to raise doubts as to the presiding arbitrator's impartiality. The Supreme Court referred to its case law whereby parties have a duty of curiosity as to the existence of possible grounds for challenge likely to affect the composition of an arbitral tribunal. While it is difficult to define the contours of this duty, which depend on the circumstances of each case, such a duty is not unlimited. According to the Supreme Court:

While [parties] can certainly be required to use the main computer search engines and consult sources that may provide, a priori, elements that may reveal a possible risk of bias on the part of an arbitrator… they cannot be expected to systematically and thoroughly scrutinise all the sources relating to a given arbitrator[Further, the] mere fact that information is freely accessible on the internet does not ipso facto mean that the party, who would not have been aware of it notwithstanding its search, would necessarily have failed in its duty of curiosity. In this respect, the circumstances of the specific case will always remain decisive.(7)

Applying these principles to the case at hand, the Supreme Court held that while the applicant could theoretically have accessed the disputed tweets during the arbitration proceedings, he was not required to carry out a specific search combining the name of the presiding arbitrator and "China". This is because there were no reasons to speculate from the outset as to the arbitrator's bias based on the applicant's nationality.

Regarding the asserted duty to examine leading social networks, the Supreme Court held that while parties:

may be required, depending on the circumstances, to verify, by virtue of [their] duty of curiosity, the existence of possible grounds for challenge, by examining, within certain limits at least, various social networks…, it would be advisable, where appropriate, not to be too demanding with regard to the parties, otherwise the duty of curiosity could be transformed into an obligation to carry out very extensive, if not almost unlimited, investigations requiring a considerable amount of time.(8)

In the case at hand, the Supreme Court found that the applicant should have browsed, at least briefly, the presiding arbitrator's Twitter account. However, in the absence of any other circumstances indicating a potential risk of bias, the fact that the applicant had not detected three tweets published almost 10 months before the appointment of the presiding arbitrator, who appeared to be active on Twitter, could not be considered a failure of his duty of curiosity. The Supreme Court also made clear that a party cannot be required to continue its internet searches or check the arbitrators' posts throughout arbitration proceedings.(9)

Thus, the Supreme Court found that the applicant had not breached his duty of curiosity.

The Supreme Court then analysed whether the facts alleged by the applicant were likely to raise doubts as to the presiding arbitrator's impartiality. Referring to its case law, the Supreme Court recalled that the disqualification of an arbitrator is warranted if:

the circumstances give the appearance of bias and give rise to concerns of biased activity on the part of the magistrate. However, only objectively ascertained circumstances should be taken into consideration; the purely individual impressions of one of the parties to the proceedings are not decisive.(10)

The Supreme Court also referred to the decision in Mutu v Switzerland,(11) in which the European Court of Human Rights had held that the mere appearance of bias was sufficient to disqualify an arbitrator, citing the maxim "justice must not only be done: it must be seen to be done".(12) The Supreme Court further referred to the International Bar Association Guidelines on Conflicts of Interest in International Arbitration (General Standard 2(b) and 2(c)).(13)

According to the Supreme Court, while arbitrators can perfectly defend their convictions on the various social networks, they cannot express themselves limitlessly or in strong terms without raising doubts as to their impartiality, even if they are not acting under their arbitrators' 'cap'.(14)

In this case, the Supreme Court noted that the presiding arbitrator was obviously defending the rights of animals and his violent criticisms were clearly not directed against all Chinese nationals. Considered in the abstract, his criticisms against the consumption of dog meat at the annual Yulin festival and his denouncement of certain Chinese nationals who, in his view, were guilty of torturing animals were not, on their own, circumstances establishing the presiding arbitrator's bias against all Chinese nationals.(15)

However, the Supreme Court considered that it was not so much the cause defended by the presiding arbitrator that appeared to be problematic in this case, but rather certain expressions that he had used (including "yellow face"). According to the Supreme Court:

such expressions, even if they were used in a particular context, had nothing whatsoever to do with the acts of cruelty alleged against certain Chinese nationals and were, whatever the context, inadmissible.

Considering also that the presiding arbitrator had continued making such remarks even after his appointment as president of a panel called upon to rule on an appeal lodged by a Chinese national, the applicant's concerns as to the possible bias of the arbitrator in question were objectively justified.(16)

Thus, the Supreme Court admitted the request for revision, annulled the award and pronounced the disqualification of the presiding arbitrator. Therefore, a CAS panel presided by a new arbitrator will have to decide the case anew.

Comment

This is one of the rare cases in which the Supreme Court has granted a request for revision of an international arbitral award, and the first case in which such a request has been granted further to the discovery of a ground to disqualify an arbitrator.

As made clear in this decision and codified in the new Article 190a of the Private International Law Act, a party may request the revision of an arbitral award if, after the expiry of the time limit to challenge that award, it discovers a ground to disqualify an arbitrator, provided that it could not have discovered such ground during the arbitral proceedings by undertaking the diligence required by the circumstances.

This decision also clarifies that a party's duty to conduct searches in relation to arbitrators' independence and impartiality is not unlimited. In particular, while a party may be expected, depending on the circumstances, to examine arbitrators' presence on various social media platforms, it is not required to carry out extensive investigations in the absence of any specific circumstances indicating a potential risk of bias or to continue its searches during the entire arbitration proceeding.

On the arbitrators' side, the Supreme Court made it clear that arbitrators can express their opinion on social media, but should abstain from expressing everything that they think in strong terms in order to avoid raising doubts as to their impartiality. However, only the specific circumstances of each case will be decisive to determine whether such doubts are justified. The test may not always be easy to apply. For instance, depending on the subject matter, it may be difficult for anyone, including an arbitrator, not to express their opinion in strong terms.

Taking the specific circumstances of this case into account, more particularly the contents of the arbitrator's statements, the outcome of the decision is unsurprising. That said, the standard to succeed in a challenge or request for revision based on an arbitrator's alleged bias seems to remain high.

Endnotes

(1) Supreme Court, 4A_318/2020, 22 December 2020 (in French).

(2) The swimmer also challenged the award. However, for reasons of procedural economy, the Supreme Court decided to derogate from the rule whereby a challenge is in principle dealt with in priority over a related request for revision (Ground 2).

(3) Ground 4.2.

(4) DTF 142 III 521, Ground 2.3.5.

(5) This provision entered into force on 1 January 2021 as part of the revised Chapter 12 of the Private International Law Act. It provides that:

[a] party may request the revision of an award:... (c) if, despite having exercised due diligence, a ground for challenge under Article 180(1)(c) was not discovered until after the conclusion of the arbitration and no other remedy is available.

(6) Grounds 6.3 and 6.4.

(7) Ground 6.5.

(8) Ground 6.5.

(9) Ground 6.5.

(10) Ground 7.2.

(11) Mutu v Switzerland (Applications 40575/10 and 67474/10), European Convention on Human Rights 324 (2018) (2 October 2018).

(12) Ground 7.3.

(13) Ground 7.4.

(14) Ground 7.9.

(15) Ground 7.9.

(16) Ground 7.9.