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Facts for a revision must be relevant, and “Vigilantibus, non dormientibus iura succurrunt”, even in a sponsorship contract

Facts for a revision must be relevant, and “Vigilantibus, non dormientibus iura succurrunt”, even in a sponsorship contract
Facts for a revision must be relevant, and “Vigilantibus, non dormientibus iura succurrunt”, even in a sponsorship contract

ABSTRACT: The dispute about a sponsorship contract between an Italian company and a Spanish company managing a cycling team, which led to a first arbitral award, issued on July 25, 2011, that ordered the Italian company to keep paying the amounts in the contract.

The Italian company asked for a first revision of the award - in the meaning of Swiss Law of Federal Tribunal (LTF, particularly art. 123, on the grounds for revision in the matter of civil law) - claiming that it didn’t know about the opening of proceeding to one of its athletes (of the Spanish team) for doping.

The claim was rejected by the Swiss Supreme Court, as mere voices on newspapers were not considered ‘relevant facts’ for the purposes of art. 123 LTF.

But it then turned out that one of the members of the cycling team was banned for two years for doping offence, so a second attempt was made on November 10, 2014, again unsuccessfully.

The Federal Tribunal confirmed in fact that, in order to obtain revision, the petitioner must show not only that he was unaware of some essential facts that took place prior to the award but also that they would have been pertinent had the arbitrators become aware of them.

Another issue the Federal Tribunal was invested about concerned the timeliness of submitting the application for review of the arbitration award, always in accordance with Swiss law.

 

Summary: 1. - Introduction - 2. The facts. The first award - 3. The second award: a) the timeliness of its appeal - 4. The second award: b) the (new) request for revision – 5. The laws and regulations concerned: A) the Swiss PILA - 6.B) the Swiss Law of Federal Tribunal (LTF): 1) the rules on deadline - 7.LTF: 2) the rules on revision (and the reference to the Italian law) - 8. Conclusions

1. Introduction

No other maxim, than the one just cited in the title[1], could (probably) be more suitable to describe the case which involved, on one hand, an Italian company, entered into a sponsorship contract with a Spanish management company of a professional cycling team, on the other.

In two Italian-language decisions (n. 4A_645/2014, and 4A_609/2014, all dated February 20, and published on March 12, 2015)[2], the Swiss Supreme Court confirmed, on one hand, that a party cannot request the revision of an award based on facts which would have had no bearing on the outcome of the arbitration, as well as considered, on the other, whether a petition to challenge an award should be dismissed on the basis that it had not been filed in time.

To get a closer idea of the case upon which the Swiss Federal Court has pronounced, we need to pass over the facts briefly.

2. The facts. The first award

On September 27, 2010, an Italian company entered into a sponsoring agreement with a Spanish company managing a professional cycling team.

The contract foresaw that over three years - until December 31, 2013 - the sponsor was to pay EUR 6,000,000 in several installments.

In the contract the parties agreed (Art. XII) that “all disputes arising from or in any way connected with this agreement shall be finally resolved by an arbitral tribunal to the exclusion of ordinary courts, according to the Regulations of the UCI and the Italian law”.

The same contract contained also provisions related to the ‘duty of care’ by the Spanish team on its athletes’ sporting behavior and conduct (so arts. 6.2 and 6.3), and a clause (art. 6. 4) according to which: “The SPORT GROUP, pursuant to a written request of the SPONSOR, undertakes to terminate forthwith the contract of any cyclist and/or staff member of the SPORT GROUP and of the TEAM who, by any action or behavior damages the image of the SPONSOR, particularly on grounds of doping[3].

At the time of the execution, economic questions had raised between the parties, so the Spanish company filed for arbitration against the Italian company for the payment of owed monies.

The matter led to a first arbitration award, issued on July 25, 2011, by the Court of Arbitration of Lugano (Switzerland), as ad hoc arbitral tribunal.

On that award,the Court rejected the request for a finding of termination of the sponsorship contract, by finding that the contractual payment obligations of the Italian Company was still falling under the aforesaid agreement, and ordered it to pay various amounts of money to the Spanish Company on specified dates (as provided in the contract), for the period from November 30, 2010, to June 30, 2013.

Immediately after the decision, on December 14, 2011, the Italian Company petitionedthe Swiss Supreme Court to revise the aforesaid award, on the basis of art. 123, para. 2), lett. a), of Swiss Law of Federal Tribunal (LTF)[4], by asking a stay of enforcement and the annulment of it.

It claimed, in particular, that the Spanish Companyhad not fulfilled its obligation to ensure that the athletes of the cycling team would not use doping substances - so that its publicity return would not be jeopardized - by considering the contract terminated.

As a matter of fact, in September 2011 - therefore: after the award was issued - the Italian press and various internet websites published several articles regarding the opening of criminal proceedings for alleged doping offence againsta top cyclist - and the “image man” - of the team[5].

Art. 123 (“other pleas”), para. 2), lett. a), of Swiss Law of Federal Tribunal [6] provides that “in the matter of civil and public law… revision may be requested if the plaintiff, after delivery of the judgment becomes aware of relevant facts or finds evidence decisive that did not introduce in the previous proceedings, excluding facts and evidence subsequent to the judgment” (unofficial translation).

Therefore the question was whether or not to consider relevant the news on the (alleged) doping offence by the athletes, for the purposes of article 123 of Swiss LTF.

Despite the complaints brought forward, the Swiss Federal Tribunal, with judgement n. 4A_750/2011[7] rejected the claim of the Italian Company, stating that “the fact alleged by the Petitioner - the aforesaid news - cannot be considered relevant for the purposes of art. 123, para. 2), lett. a), of Swiss LTF”, as “it is not necessary to decide if the revision of an arbitral award could be sought on the basis of mere newspaper articles published in print and electronically[8].

It sentenced, consequently, the Petitioner to pay the judicial costs to the Respondent, corresponding to 30,000 Swiss CHF[9].

3. The second award: a) the timeliness of its appeal

After the aforesaid judgment, another arbitration proceeding was lodged by the Italian Company (always related to economic questions).

The proceeding ended with a final award of September 23, 2014, whichrejected the Claimant’s submissions and ordered the payment to the Spanish Company (resistant) of costs amounting to EUR 239,400 (whilst the resistant has been sentenced to pay to the claimant a total CHF 25,000 for costs and fees of the arbitral tribunal).

On the day it was issued - September 23, 2014 - it was sent to the parties by electronic and registered mail, by which the Chairwoman of the arbitral tribunal wrote the following statement: “Please find herewith an advanced copy of the arbitral tribunal’s letter of today with its enclosure (final award)”.

In the same registered email, she mentioned - above the address of counsel for the parties - “registered anticipated by email”, also adding, in the text letter, “please find attached hereto the original copy of the final award”.

Upon receipt of such communication, the Italian Company appealed the decision before the Swiss Federal Tribunal on October 24, 2014, by asking, primarily, the issue of a stay of enforcement and the annulment of the award or, in turn, its sent back to the arbitral tribunal for a new decision in accordance with the reasons in the judgment of the Federal Tribunal.

The presiding judge of the Court issued a first stay of enforcement on January 20, 2015.

Nevertheless, with judgement n. 4A_609/2014[10], the Court declared the matter ‘not capable of appeal’, as the application was considered late and out of time (‘only’ on October 24), given that “it is indeed the date of notification of the decision under appeal which is relevant and not the time at which it was read by the addressee[11].

It sentenced, consequently, the Petitioner to pay the judicial costs, corresponding to 5,000 Swiss CHF, and the reimbursement of 15,000 to the Respondent for the federal judicial proceeding.

4. The second award: b) the (new) request for revision

The legal casebetween the parties had a further follow.

A new (final and last) request for revision was lodged by the Italian company, upon a decision of the Union Cycliste Internationale (UCI) - mentioned by the press on July 12, 2014 - which imposed a two years sanction (and disqualification and cancellation of the sport results in the years 2009-2010 and 2012) for doping upon the team leader and “image man” of the aforesaid cycling team.

This time, the matter was not whether to consider (or not) relevant the news on the (alleged) doping offence for the athlete, but whether to consider (or not) relevant - always for the purposes of article 123 para. 2), let. a), of Swiss LTF - the disqualification of the “top” athlete of the cycling team, which intervened not only after the contract, but also after the first arbitration between the parties.

The Italian company claimed, in particular, that it would not have sponsored the cycling team “if it had known that among its cyclists it included an athlete who had repeatedly breached the UCI Doping Regulations[12].

Nevertheless, in spite of such grievances, with judgement n. 4A_645/2014[13], the Swiss Federal Tribunal rejected the second request for revision, by sentencing, consequently, the Petitioner to pay the judicial costs, corresponding to 10,000 Swiss CHF, and the reimbursement of 12,000 CHF to the Respondent for the federal judicial proceeding.

5. The laws and regulations concerned: A) the Swiss PILA

Starting our analysis with the main laws related to the concerned case, we could split them into two categories: the rules on jurisdiction of the Swiss Federal Court in the matter of arbitration, and the rules governing the proceedings before the same Court (LTF).

It is worth mentioning that the Rules in the field of international arbitration in Switzerland are provided by the Swiss Federal Statute on Private International Law (PILA)[14], in particular on Chapter 12 (‘International Arbitration’, arts. 176-194).

As the two parties (an Italian company, on one hand, and the Spanish company, on the other) were domiciled abroad Switzerland at the time the arbitration agreement was entered into[15], as well as all the challenged awards were rendered in Switzerland (the seat of arbitration was Lugano), there is no doubt that jurisdiction belongs to the Swiss Federal Court.

Art. 176 (‘Field of application; seat of the arbitral tribunal’) of Swiss PILA, reads as follows: “The provisions of this chapter shall apply to all arbitrations if the seat of the arbitral tribunal is in Switzerland and if, at the time of the conclusion of the arbitration agreement, at least one of the parties had neither its domicile nor its habitual residence in Switzerland” (so para. 1).

In the following para. 2, it also provides that: “The parties may exclude the application of this chapter by an explicit declaration in the arbitration agreement or by an agreement at a later date and agree on the application of the third part of the C(ivil) P(rocedure) C(ode)”.

In relation to that, judgement n. 4A_645/2014 points out that, even if the parties were domiciled abroad Switzerland, according to Swiss jurisprudence and case law - which filled a loophole in this matter - “they may accordingly avail themselves of the extraordinary legal recourse of revision, for which the Federal Tribunal has jurisdiction[16].

The proposition, according to which the jurisdiction - in such matter - belongs to the Swiss Federal Court is further reinforced by the fact that there was no indication - in the arbitration agreement - that the parties waived the right to arbitrate within the meaning of art. 176, para. 2, of Swiss PILA.

It must also be remembered that an appeal of the award before the Swiss Federal Supreme Court is permitted pursuant to articles 190-192 of Swiss PILA.

Art. 190, in particular, reads as follows: “The award shall be final when communicated” (so para. 1), and - in the next para. 2 - it states that: “It (the award) can be attacked only: a) if a sole arbitrator was designed irregularly or the arbitral tribunal was constituted irregularly; b) if the arbitral tribunal erroneously held that it had or did not have jurisdiction; c) if the arbitral tribunal ruled on matters beyond the claims submitted to it or if it failed to rule on one of the claims; d) if the quality of the parties or their right to be heard in an adversarial proceeding was not respected; e) if the award is incompatible with Swiss public policy”.

In other words, only the grievances listed in art. 190 (para. 2) of Swiss PILA are admissible.

6. B) the Swiss Law of Federal Tribunal (LTF): 1) the rules on deadline

Coming to the second category of the rules at issue - namely the ones governing the proceedings before the same Swiss Federal Tribunal (LTF) - in the case of judgement n. 4A_609/2014 it is in point art. 44, 48 and 100 of the Swiss Law[17].

Art. 44 (‘Effect’), para. 1 - inserted in Section 5 (‘Deadlines’) of the Law - reads as follows: “the deadlines whose effect depends on the notification or the occurrence of an event shall run from the day after” (unofficial translation).

The following art. 48 (‘Compliance’) provides that: “the appeal brief must be submitted to the Federal Tribunal either at its address or via the Swiss Mail or to a Swiss embassy or consulate at the latest on the last day of the time limit to appeal” (so para. 1, unofficial translation), while art. 100 (‘Appeal against decisions’), of Section 4 (‘Time for appealing’), reads as follows: “An appeal against the decision must be filed with the Federal Court within 30 days of notification of the full  text of the decision” (so para. 1, unofficial translation).

According to the mentioned provisions it is thus clear that the appeal against a decision to the Swiss Federal Tribunal must be submitted at latest within 30 days of notification of full text[18] of it, by lodging it or by direct delivery to the Federal Tribunal, or by dispatch to its address with the Swiss Post, or by direct delivery (or dispatch) to the Swiss diplomatic and consular representations, no later than the last day of the term mentioned above.

In this regard, the judgment points out that the advance copy of the award was sent by electronic mail in the late afternoon of September, 23 (attached to it)[19].

It also reminded that the wayin which an award is notified depends upon the agreement of or the rules chosen by the parties[20], who, in the case at hand, had chosen UCI Cycling Regulations[21].

Nevertheless, such Regulations “do not embody a requirement that the parties should be notified with an original of the award signed by the arbitrators and the Appellant does not argue to the contrary[22].

Consequently, the case at stake was different from that on which the case law quoted in the appeal was based, which relates to the notification of awards issued by the Court of Arbitration for Sport[23], or pursuant to art. 55 of the Expedited Arbitration Rules of the World International Property Organization[24].

In such judgments, it was held that the transmission of a copy (by fax) of the award did not start the time limit provided on art. 100, para.1, of LTF, as the applicable rules required that an original copy (signed by the Chairman, or Chairwoman of the Panel) had be notified to the parties.

Notification that instead, in the case at issue, had already been completed on September 23, as already equipped with the full document.

It was further noted (by the opponent) that communications via e-mail has been used many times in the course of the arbitration proceeding either by the Arbitration panel[25], either by the same parties[26], underlining - in this way - that the procedure between the parties has been consolidated in the sense of use as the main (though not exclusive) means of communication the electronic mail.

In other words, in the case at stake, the deadline for challenging the decision was starting on September 23 (day in which the notification had been completed)[27], and the appeal lodged ‘just’ on October 24 (more than thirty days after notification), reason why it was late and out of time.

7. LTF: 2) the rules on revision (and the reference to the Italian law)

In the case of judgment n. 4A_645/2014, it is in point art. 123 and 124 of the Swiss LTF.

Art. 123 of LTF - provided on Chapter 7 (“Revision, rectification and interpretation”), Section 1 (“Revision”) of the same Law - gives the party the opportunity to ask for revision of the decision (in the matter of civil and public law) on condition that “the plaintiff, after delivery of the judgment becomes aware of relevant facts or finds evidence decisive that did not introduce in the previous proceedings”, in exclusion of “facts and evidence subsequent to the judgment” (as already mentioned).

The next art 124 provides that, in such case, the request for revision must be filed within 90 days from the discovery of the ground for revision[28].

As pointed out by the decision, from the wording of the provision (art. 124) “the fact invoked must be pertinent and apt to change the findings of a fact on which the challenged decision was based and hence to lead to a different solution from that in the award, the revision of which is sought on the basis of a correct legal assessment[29].

In the case at stake, two were the questions submitted to Swiss Federal Court.

In the first case, the question was whether to consider relevant or not - for the purposes of art. 123 - the news (published after the issue of the award) on doping accusations to the “top-athlete” of the cycling team.

The Court - with first judgment n. 4A_750/2011 - didn’t consider it relevant, providing a response which appears - both from the formal and from the substantial point of view - correct (as the party cannot appeal, indeed, to simple news to ask for a revision of the judgment, as they are mere voices which need to be confirmed).

However, the second case, settled by judgment n. 4A_645/2014, seems different.

In this (and next) case the question was whether to consider relevant or not the sanction for doping imposed on July 12, 2014 (even in this case, after the award was rendered) by the UCI (Union Cycliste Internationale) to the same athlete of the Spanish cycling team, due to anomalies in his biological passport[30].

The Swiss Federal Court, with the judgment already mentioned, didn’t consider the fact relevant - almost “not susceptible to change the factual findings on which the award is based[31] - for the purposes of art. 123, on the basis, fundamentally, of two arguments.

First, the fact discovered by the Petitioner (a sanction imposed due to anomalies on his biological passport) was not considered able to “lead to the conclusion that the Respondent knew of the cyclist’s behavior[32].

Second, that the Petitioner didn’t explain “how it would be possible to infer from the single fact (editor’s note: doping disqualification) on which the request for revision is based that there would have been a breach of the Respondent’s contractual obligations[33].

In doing so, it recalled the contractual obligations provided on articles 6.2 and 6.3 of the contract (according to which the Spanish team has undertaken a ‘duty of care’ on its cyclists’ sporting behavior), and - most of all - on article 6.4 of the same contract, according to which “The SPORT GROUP, pursuant to a written request of the SPONSOR, undertakes to terminate forthwith the contract of any cyclist and/or staff member of the SPORT GROUP and of the TEAM who, by any action or behavior damages the image of the SPONSOR, particularly on grounds of doping”.

So much, for the purpose to affirm that the fact (doping disqualification of the athlete) is “not susceptible to change the factual findings on which the award is based”.

In our opinion, this aspect would have deserved a better insight.

If the first argument seems, indeed, convincing (being very difficult, indeed, to assume that the Spanish team was aware of the ‘improper’ conduct of its athlete,that is especially true in the period prior to the conclusion of the contract), the second argument does not seem, however, fully convincing.

As a matter of fact, in their contractual obligations the parties have actually agreed a ‘duty of care’ of the cycling management’s company on its athletes sporting behavior, and they did it with particular regard to the case where the disqualification of a cyclist because of doping is likely to damage the image of the sponsor (for the natural association of its name and logo to its sports team membership)[34].

Moreover, if it is true - as is true - that the Italian law governed the relationship between the parties[35], not entirely appropriate seems the reference - made by the Court - to Article. 1442 of the Italian Civil Code (which rules the action for annulment of the contract, with particular regard to the limitation period), to dismiss the objection, raised by the plaintiff, “that it was acting in fundamental error[36].

More appropriate, indeed, it would be the reference to articles 1175 (“Fairly behavior”)[37], 1375 (“Execution in good faith”)[38], and especially to article 1337 (“Negotiations and pre-contractual liability”)[39] of the same Code.

On the contrary, in a rather hasty and dismissive way the Court held that “the fact discovered by the Petitioner (a sanction imposed due to anomalies found in the biological passport) is not susceptible to change the factual findings on which the award is based”, as well as the Petitioner didn’t explain “how it would be possible to infer from the single fact (or to say: doping disqualification) on which the request for revision is based that there would have been a breach of the Respondent’s contractual obligations[40].

8. Conclusions

Which lessons can be learned by the case at issue ?

The first decision (n. 4A_750/2011) didn’t really solve the question as to whether “facts” - in the meaning of article 123, para.2, lett. a) of the Swiss Law of Federal Tribunal - could emanate from newspaper articles and website postings[41], even if the case does, however, “underline the importance of demonstrating that any new facts or evidence are of a nature to influence and change the findings of the underlying award[42].

It didn’t do so, however, with regard to the second decision (n. 4A_645/2014), in which it didn’t consider relevant - for the purposes of article 123 para. 2), let. a), of Swiss LTF - the disqualification for doping of the “top” athlete of the cycling team.

The Court, rather, merely reaffirmed its jurisprudence on the standard for revision of an arbitral award[43] - which can be invoked only where: a) the applicant discovered facts that existed during the arbitration, which were previously unknown to him; b) those facts are capable of affecting the findings of fact in the underlying award and of leading the tribunal to a different decision based on the proper legal assessment of them - without going too much into the issue.

In our opinion, almost two could be lessons to be learned from this court case.

First, the need to predetermine in the most appropriate and detailed way all the possible causes of termination of sponsorship contract between the sponsor company and the sports club, especially in cases ofmisconduct or negligence by the athletes (particularly with regard to cases of violation of anti-doping regulations)[44].

Secondly, the importance of determining with absolute precision the day from which starts to run the 30-days deadline to challenge the award before the Swiss Federal Court.

As duly noted by a doctrine[45], the case at hand “demonstrates that one cannot rely on the normal practice of the Swiss courts, that is, that only formal notification triggers the deadline for an appeal[46].

If a party wants to challenge an award rendered in Switzerlandbefore the Swiss Federal Supreme Court, it must be very careful in determining the start of the 30-day deadline in doing so, starting this term effect from the date of transmission of the decision via registered (and certified) e-mail

In the case at issue, indeed, the Supreme Court’s approach was different than the situation where the arbitration rules clearly state the method by which an arbitral award must be communicated.

In its earlier (and previous) decisions, the Swiss Supreme Court calculated the 30 days for filing a set aside proceeding according to the date on which the award was communicated to the parties in compliance with the agreed procedure for notification[47].

In the field of “sports-related dispute[48], the ‘institutional’ arbitration rules, usually agreed upon between the parties (and usually inserted in the contract), generally refer to R31 of the Code of Sports-related Arbitration[49], according to which: “All arbitration awards, orders, and other decisions made by CAS and the Panel shall be notified by courier and/or by facsimile and/or by electronic mail but at least in a form permitting proof of receipt” (so para. 2), as well as: “Any other communications from the parties intended for the CAS Court Office or the Panel shall be sent by courier, facsimile or electronic mail to the CAS Court Office” (so para. 5, last part)[50].

So the main lesson (or advice) from this decision is that where parties decide to use an ad hoc arbitration, they should also be careful to either agree on the pursued method for communicating awards by the arbitral tribunal expressly, or - in the absence of such express agreement - to appeal against the decision within 30 days from the notice of the award according to the method of communication adopted by the parties and arbitrators during the proceedings (in this case: registered - and certified - email).

Careful then, as “vigilantibus, non dormientibus iura succurrunt”, even in a sponsorship contract.

 

[1] The latin maxim means: “the law assists those that are vigilant with their rights, and not those that sleep thereupon”;

[2] The decision no. 609/2014 is available on-line to the following URLs: http://www.servat.unibe.ch/dfr/bger/150220_4A_609-2014.html (Italian original), and http://www.swissarbitrationdecisions.com/sites/default/files/20%20f%C3%A9vrier%202015%204A%20609%202014.pdf (English). For a brief comment, see N. VOSER and A. PETTI, “Diligence is required when determining the 30-day deadline for challenging awards” (on Practical Law Arbitration, April 28, 2015, available on-line to the following URL: http://www.swlegal.ch/getdoc/c1d73643-5b28-45cd-8f70-5d877c150ddd/2015_Nathalie-Voser_Angelina-Petti_Diligence-is-re.aspx).

The decision no. 645/2014 is available on-line to the following URLs: http://www.servat.unibe.ch/dfr/bger/150220_4A_645-2014.html (Italian original), and http://www.swissarbitrationdecisions.com/sites/default/files/20%20f%C3%A9vrier%202015%204A%20645%202014.pdf (English). For a brief comment, see N. VOSER and A. PETTI, “Facts for a revision must have bearing on outcome of award”, (on Practical Law Arbitration, April 28, 2015, available on-line to the following URL: http://www.swlegal.ch/getdoc/b86a0336-bf08-4099-ba99-0e22fdafefa8/2015_Nathalie-Voser_Angelina-Petti_Facts-for-a-rev.aspx);

[3] as recalled by judgment n. 4A_645/2014 (point 3.2.2. of the decision);

[4] the Swiss Law of Federal Tribunal (LTF) of June 17, 2005 (RS 173. 110), entered into force on January 1, 2007. The Law is available on-line, on the official languages of Switzerland, to the following URLs: https://www.admin.ch/opc/it/classified-compilation/20010204/index.html (Italian version), https://www.admin.ch/opc/de/classified-compilation/20010204/index.html (German version), and https://www.admin.ch/opc/fr/classified-compilation/20010204/index.html (French version);

[5] the Italian Company added that the cyclist also appeared on a ‘confidential list’ of athletes suspected of doping;

[6] provided on Chapter 7 (“Revision, rectification and interpretation”), Section 1 (“Revision”), of the same Law;

[7] dated 21 August 2012 and published on 1 October 2012, available on-line to the following URLs: http://www.swissarbitrationdecisions.com/sites/default/files/21%20ao%C3%BBt%202012%204A%20750%202011.pdf (English); http://www.bger.ch/it/index/juridiction/jurisdiction-inherit-template/jurisdiction-recht/jurisdiction-recht-urteile2000.htm  (Italian original).  For a brief comment, see N. VOSER and A. PETTI, “Revision of international arbitral award rejected: no material new facts or evidence”, on Practical Law Arbitration, November 1, 2012, (available on-line to the following URL: http://uk.practicallaw.com/7-522-1823?service=arbitration [English]);

[8] so point 2, second paragraph, of the decision (‘Reasons’);

[9] amount considered “excessive” by a doctrine (C. PONCET, in his short comment of November 1st, 2012), who calls for a revision of the Swiss Federal Court in the matter, “as the costs of some of the ‘Swiss’ appeals are sometimes becoming excessive when compared to other arbitral venues”;

[10] dated 20 February 2015, and published next March 12 (the decision is available on-line, also to the following URL: http://www.swissarbitrationdecisions.com/sites/default/files/20%20f%C3%A9vrier%202015%204A%20609%202014.pdf (Italian original);

[11] so point 2.3.3. of the decision;

[12] so point ‘B’ of the decision n. 4A_645/2014;

[13] dated 20 February 2015, and published next March 12 (the decision is available on-line, also to the following URL: http://www.swissarbitrationdecisions.com/sites/default/files/20%20f%C3%A9vrier%202015%204A%20645%202014.pdf (English);

[14] ‘PILA’ is the most commonly used English abbreviation for the Swiss Federal Statute on Private International Law of December 18, 1987 (the law is available on-line, on the English version, to the following URL: https://www.swissarbitration.org/sa/download/IPRG_english.pdf); 

[15] as pointed out on para. 1., both on decision n. 4A_750/2011, and on decisions n. 4A_609/2014 and 4A_645/2014 (in all of them, see the first part of the ‘Reasons’);

[16] so point 1 of the Reasons, which refers to decision n. 4A_42/2008 of March 14, 2008, point 2, according to: “PILA contains no provision with regard to requests for revision of awards of an Arbitral Tribunal within the meaning of Art. 176 ff. PILA. According to case law of the Federal Tribunal, which supplemented the loophole, the parties to an international arbitration proceeding may avail themselves of the extraordinary legal remedy of a request for revision, which falls within the jurisdiction of the Federal Tribunal (BGE 118 II 199 E. 2 and 3 S. 200 ff.; see also BGE 129 III 727 E. 1 S. 729). If the Federal Tribunal grants the request for revision, it does not decide the matter itself, but sends it back to the Arbitral Tribunal which decided the matter or to a new arbitration tribunal to be constituted (BGE 118 II 199 E. 3 S. 204; Decision 4P_117/2003 of October 16, 2003 E. 1.1).” The full text of the decision is available on-line to the following URL: http://www.swissarbitrationdecisions.com/request-for-revision-of-an-arbitral-award (English version);

[17] the Swiss Law of Federal Tribunal (LTF) of June 17, 2005, is available on-line, to the following URLs: https://www.admin.ch/opc/it/classified-compilation/20010204/index.html (Italian version), https://www.admin.ch/opc/de/classified-compilation/20010204/index.html (German version), and https://www.admin.ch/opc/fr/classified-compilation/20010204/index.html (French version);

[18]testo integrale’, in the Italian version of the Law (official text);

[19] as pointed both in point 2.1, and in point 2.3.3., of the decision;

[20] recalling, in this regard, judgment 4A_582/2009 of April 13, 2010 (point 2.1.2 of the decision, according to which: “Pursuant to Art. 100 (para. 1) LTF, an appeal must be filed with the Federal Tribunal within 30 days following full notification. Provided the date of receipt can be ascertained, Art. 112 (para. 1) LTF does not impose any method of communication (so BERNARD CORBOZ, in Commentaire de la LTF [LTF Commentary], 2009, no. 12 ad Art. 112). PILA does not specify the communication method of the award either. Consequently, the issue depends firstly on part of the agreement of the parties or on the arbitration rules they chose (judgment 4P. 272/1999 of 20 June 2000 at point 5.a)”. Furthermore, “According to art. 55 of the WIPO's Expedited Arbitration Rules (hereafter: the Rules), applicable in this case, the award must be in writing and state the date on which it was made, as well as the place of arbitration (b); it must be signed by the arbitrator (d). The aforesaid provision specifies in the second sentence of (f) that ‘the Center shall formally communicate an original of the award to each party and the arbitrator’. In accordance with art. 57 (b) of the Rules, the award is effective and becomes binding for the parties as from the date on which it is communicated in this manner”, underlining that, in the case at stake, “the preliminary award was formally communicated to the Appellant's counsel by a letter of 16 October 2009 on WIPO letterhead, which made reference to Art. 55 (f) of the Rules. The intended recipient of this letter collected the registered letter containing the document from a post office in Lausanne on 23 October 2009. The time limit to appeal therefore began the next day (Art. 44 (1) LTF) and it was not elapsed when the appeal was filed on 20 November 2009”, and that “in this regard, it does not matter that a copy of the preliminary award had already been communicated by the Center on to the Appellant's representative as an attachment to its electronic mail 7 October 2009, or that the Appellant relied on the award at a hearing for a summary judgment on 9 October 2009, as the Respondent maintains by producing two exhibits which incidentally, are admissible since they relate to the issues as to whether or not the decision is capable of appeal (see judgment 4A_464/2009 of 15 February 2010 at 3.3.2). Indeed, such communication did not bear the official character required by the Rules, since the exhibit communicated was not the original of the award. Hence, it could not cause the time limit of art. 100 (para. 1) LTF and begin running”);

[21] so point 2.3.1. of the decision;

[22] so point 2.3.1. of the decision;

[23] see, in this regard, judgment 4A_392/2010 of January 12, 2011, published on February, 16 (FC Sion vs. FIFA + Al Ahly Sporting Club, point 2.3.2 of the decision, according to which: “In the first edition of their work two specialists of international arbitration wrote that notification by fax was sufficient to start the time limit to appeal (KAUFMANN-KOHLER/RIGOZZI, Arbitrage international, 2006, n° 733). In support of that opinion however, they quoted a precedent - judgment 4P.88/2006 of July 10, 2006 at 2.3 - which did not decide the issue (judgment 4A_628/2009 of February 17, 2010 at 25). In the second edition of the same work published in 2010 the authors are less affirmative and reserve the possibility that the parties or the arbitration rules may provide for specific modalities of notification (op. cit., n° 733). They add that the same should apply when the CAS notifies an award by fax whilst indicating that ‘the original shall be notified by registered letter subsequently’. They add that as long as the issue is not decided by the Federal Tribunal a prudent appellant will nonetheless calculate the time limit from the notification by fax (op. cit., p. 465, footnote n° 524)”, adding, moreover, that “The Federal Tribunal recently addressed a case comparable to the present one. As to Art. 55 of the Expedited Arbitration Rules of the World Intellectual Property Organization (WIPO; hereafter: the Rules) which provide for formal notification to the parties of an original of the award signed by the arbitrator, this Court ruled out that the time limit to appeal could run from the communication of the award as an annex to an e-mail because such communication did not have the official character required by the Rules (judgment 4A_582/2009 of April 13, 20106 at point 2.1.2 not published in ATF 136 III 200). Art. R31 (para. 2) of the Code provides that the CAS awards are notified ‘by any means permitting proof of receipt’. As to Art. R59 (para. 1) of the Code it requires the awards to be signed at least by the Chairman of the Panel. Following the precedent quoted and even though these two provisions are less categorical than Art. R55 of the Rules it must be admitted that notifying a CAS international arbitral award by fax does not cause the time limit of Art. 100 (para. 1) LTF to start running: on the one hand a signature by hand cannot be substituted by the signature of the original with a copy faxed to the addressees of the award (see mutatis mutandis ATF 121 II 252 at point 3); on the other hand a fax is generally not a mean allowing proof of notification”;

[24] article 55 of such Regulations, provides, in fact, that: “The award shall be communicated by the Tribunal to the Center in a number of originals sufficient to provide one for each party, the arbitrator and the Center. The Center shall formally communicate an original of the award to each party and the arbitrator” (see, in this regard, judgment 4A_582/2009 of April 13, 2010, and the point 2.1.2 of the decision, already cited on footnote 20);

[25] recalling, in this regard, paras. 9, 35, and 62 of the challenged award showing that the Claimant was asked via electronic mail to pay its share of the provisional deposit unpaid by the Respondent, and that a time limit was given to the Claimant to state its position as to a submission of the defendant, and the amendment of Procedural Order n. 2 in the same manner (so point 2.3.2. of the decision);

[26] recalling, in this regard, paras. 35 and 78 of the challenged award, showing that the Claimant’s requests as to the Defendant’s failure to pay the fee deposit and the joint request of the parties to postpone some procedural deadlines were submitted by electronic mail (so point 2.3.2. of the decision);

[27] as the full text of the decision was attached to the email;

[28] so para. 2, lett. d) of the article;

[29] recalling, in this regard, judgment no. 4A_763/2011, of April 30, 2012, point 3.1 (the full text of the decision is available on-line, to the following URL: http://www.swissarbitrationdecisions.com/request-for-revision-of-an-icc-award-rejected-the-petitioner-mus [English version]);

[30] which led to his disqualification for two years and to the annulment of his ranking in the Tour de France 2009, 2010, and 2012;

[31] so point. 3.2.2. of the decision;

[32] so point 3.2.2. of the decision;

[33] so point 3.2.2. of the decision;

[34] as provided by article 6.4 of the contract (which had given the parties the opportunity to terminate the contract upon the occurrence of such an event);

[35] as stated in paragraph 3.2.1 of the decision;

[36]as was the Respondent at the time it signed the endorsement contract, because it did not know that the aforesaid cyclist was doping” (so point 3.2.1. of the decision);

[37] art. 1175 of the Italian Civil Code provides that: “The debtor and the creditor must behave according to the rules of fairness” (unofficial translation);

[38] art. 1375 of the Italian Civil Code provides that: “The contract shall be performed in good faith” (unofficial translation);

[39] art. 1337 of the Italian Civil Code provides that: “The parties, in the conduct of the negotiation and formation of the contract, must act in good faith” (unofficial translation);

[40] so point 3.2.2. of the decision;

[41] according to a doctrine, the question was “left open” (so N. VOSER and A. PETTI, “Revision of international arbitral award rejected: no material new facts or evidence”, yet cited, on footnote 7);

[42] so N. VOSER and A. PETTI, “Revision of international arbitral award rejected: no material new facts or evidence” (yet cited, on footnote 7);

[43] as properly pointed out by a doctrine (N. VOSER and A. PETTI, “Facts for a revision must have bearing on outcome of award”, yet cited on footnote 2);

[44] even in order to avoid the pretentious or instrumental use of news (both appeared in the media and on the Internet) on the opening of proceedings for doping to some athletes to ask the termination of contract (which, in the meanwhile, has become too ‘dear’ for the sponsoring company);

[45] N. VOSER and A. PETTI, “Diligence is required when determining the 30-day deadline for challenging awards”, yet cited (footnote 2);

[46] because, as pointed out by a Study conducted by the EU, Directorate General for Internal Policies (“Legal Instruments and Practice of Arbitration in the EU”, 2014, Study for the Juri Committee - EU Policy Department of citizen's right and constitutional affairs), “The above analysis (on ad hoc v. institutional arbitration, editor’s note) demonstrates that, under particular circumstances, arbitration needs to rely on a pre-existent, permanent framework of support” (so page 38 of the Report, the full text document is available on line to the following URL: http://www.europarl.europa.eu/RegData/etudes/STUD/2015/509988/IPOL_STU(2015)509988_EN.pdf);

[47] so Swiss Federal Court, n. 4A_392/2010 (FC Sion Association vs. FIFA + Al Ahly Sporting Club, yet cited on footnote 23), and n. 4A_394/2010 (El Hadary vs. FIFA + Al Ahly Sporting Club, available on-line to the following URLs: http://www.swissarbitrationdecisions.com/sites/default/files/12%20janvier%202011%204A%20394%202010.pdf, (English version), and http://www.bger.ch/it/4a_392_2010_d.pdf, (French version), all of January 12, 2011, in which the Supreme Court held that the petitions, filed more than thirty days after the receipt of a fax copy of the award, were timely as the time period only started running from the receipt of the award by registered mail. For a brief comment of the decisions, see N. VOSER and A. TRUTTMANN “Supreme Court confirms time limit for petition to set aside a CAS award does not start running upon receipt of a fax copy of the award”, on Practical Law Arbitration, March 2, 2011, available on http://www.swlegal.ch/getdoc/c0896983-9a33-4814-b69a-d2346f09257d/2011_Nathalie-Voser_Aileen-Truttmann_Swiss-Sup-(1).aspx (English);

[48] so R27 of CAS Code (“Application of the Rules”);

[49] available on-line to the ‘institutional’ website of the Court of Arbitration for Sport (www.tas-cas.org) to the following URL: http://www.tas-cas.org/fileadmin/user_upload/Code_2016_final__en_.pdf (English version);

[50] the underlying rationale for this provision is the maintenance of control by the CAS , which “is understandable insofar as the Panel does not play a direct role in the actual conduct of CAS proceedings and given that the parties litigating before the CAS are not always represented by counsel accustomed to the practices of international arbitration” (so A. RIGOZZI/E. HASLER/B. QUINN, “The 2011, 2012 and 2013 revisions of the code of Sports related arbitration”, on Jusletter, June 3, 2013);

ABSTRACT: The dispute about a sponsorship contract between an Italian company and a Spanish company managing a cycling team, which led to a first arbitral award, issued on July 25, 2011, that ordered the Italian company to keep paying the amounts in the contract.

The Italian company asked for a first revision of the award - in the meaning of Swiss Law of Federal Tribunal (LTF, particularly art. 123, on the grounds for revision in the matter of civil law) - claiming that it didn’t know about the opening of proceeding to one of its athletes (of the Spanish team) for doping.

The claim was rejected by the Swiss Supreme Court, as mere voices on newspapers were not considered ‘relevant facts’ for the purposes of art. 123 LTF.

But it then turned out that one of the members of the cycling team was banned for two years for doping offence, so a second attempt was made on November 10, 2014, again unsuccessfully.

The Federal Tribunal confirmed in fact that, in order to obtain revision, the petitioner must show not only that he was unaware of some essential facts that took place prior to the award but also that they would have been pertinent had the arbitrators become aware of them.

Another issue the Federal Tribunal was invested about concerned the timeliness of submitting the application for review of the arbitration award, always in accordance with Swiss law.

 

Summary: 1. - Introduction - 2. The facts. The first award - 3. The second award: a) the timeliness of its appeal - 4. The second award: b) the (new) request for revision – 5. The laws and regulations concerned: A) the Swiss PILA - 6.B) the Swiss Law of Federal Tribunal (LTF): 1) the rules on deadline - 7.LTF: 2) the rules on revision (and the reference to the Italian law) - 8. Conclusions

1. Introduction

No other maxim, than the one just cited in the title[1], could (probably) be more suitable to describe the case which involved, on one hand, an Italian company, entered into a sponsorship contract with a Spanish management company of a professional cycling team, on the other.

In two Italian-language decisions (n. 4A_645/2014, and 4A_609/2014, all dated February 20, and published on March 12, 2015)[2], the Swiss Supreme Court confirmed, on one hand, that a party cannot request the revision of an award based on facts which would have had no bearing on the outcome of the arbitration, as well as considered, on the other, whether a petition to challenge an award should be dismissed on the basis that it had not been filed in time.

To get a closer idea of the case upon which the Swiss Federal Court has pronounced, we need to pass over the facts briefly.

2. The facts. The first award

On September 27, 2010, an Italian company entered into a sponsoring agreement with a Spanish company managing a professional cycling team.

The contract foresaw that over three years - until December 31, 2013 - the sponsor was to pay EUR 6,000,000 in several installments.

In the contract the parties agreed (Art. XII) that “all disputes arising from or in any way connected with this agreement shall be finally resolved by an arbitral tribunal to the exclusion of ordinary courts, according to the Regulations of the UCI and the Italian law”.

The same contract contained also provisions related to the ‘duty of care’ by the Spanish team on its athletes’ sporting behavior and conduct (so arts. 6.2 and 6.3), and a clause (art. 6. 4) according to which: “The SPORT GROUP, pursuant to a written request of the SPONSOR, undertakes to terminate forthwith the contract of any cyclist and/or staff member of the SPORT GROUP and of the TEAM who, by any action or behavior damages the image of the SPONSOR, particularly on grounds of doping[3].

At the time of the execution, economic questions had raised between the parties, so the Spanish company filed for arbitration against the Italian company for the payment of owed monies.

The matter led to a first arbitration award, issued on July 25, 2011, by the Court of Arbitration of Lugano (Switzerland), as ad hoc arbitral tribunal.

On that award,the Court rejected the request for a finding of termination of the sponsorship contract, by finding that the contractual payment obligations of the Italian Company was still falling under the aforesaid agreement, and ordered it to pay various amounts of money to the Spanish Company on specified dates (as provided in the contract), for the period from November 30, 2010, to June 30, 2013.

Immediately after the decision, on December 14, 2011, the Italian Company petitionedthe Swiss Supreme Court to revise the aforesaid award, on the basis of art. 123, para. 2), lett. a), of Swiss Law of Federal Tribunal (LTF)[4], by asking a stay of enforcement and the annulment of it.

It claimed, in particular, that the Spanish Companyhad not fulfilled its obligation to ensure that the athletes of the cycling team would not use doping substances - so that its publicity return would not be jeopardized - by considering the contract terminated.

As a matter of fact, in September 2011 - therefore: after the award was issued - the Italian press and various internet websites published several articles regarding the opening of criminal proceedings for alleged doping offence againsta top cyclist - and the “image man” - of the team[5].

Art. 123 (“other pleas”), para. 2), lett. a), of Swiss Law of Federal Tribunal [6] provides that “in the matter of civil and public law… revision may be requested if the plaintiff, after delivery of the judgment becomes aware of relevant facts or finds evidence decisive that did not introduce in the previous proceedings, excluding facts and evidence subsequent to the judgment” (unofficial translation).

Therefore the question was whether or not to consider relevant the news on the (alleged) doping offence by the athletes, for the purposes of article 123 of Swiss LTF.

Despite the complaints brought forward, the Swiss Federal Tribunal, with judgement n. 4A_750/2011[7] rejected the claim of the Italian Company, stating that “the fact alleged by the Petitioner - the aforesaid news - cannot be considered relevant for the purposes of art. 123, para. 2), lett. a), of Swiss LTF”, as “it is not necessary to decide if the revision of an arbitral award could be sought on the basis of mere newspaper articles published in print and electronically[8].

It sentenced, consequently, the Petitioner to pay the judicial costs to the Respondent, corresponding to 30,000 Swiss CHF[9].

3. The second award: a) the timeliness of its appeal

After the aforesaid judgment, another arbitration proceeding was lodged by the Italian Company (always related to economic questions).

The proceeding ended with a final award of September 23, 2014, whichrejected the Claimant’s submissions and ordered the payment to the Spanish Company (resistant) of costs amounting to EUR 239,400 (whilst the resistant has been sentenced to pay to the claimant a total CHF 25,000 for costs and fees of the arbitral tribunal).

On the day it was issued - September 23, 2014 - it was sent to the parties by electronic and registered mail, by which the Chairwoman of the arbitral tribunal wrote the following statement: “Please find herewith an advanced copy of the arbitral tribunal’s letter of today with its enclosure (final award)”.

In the same registered email, she mentioned - above the address of counsel for the parties - “registered anticipated by email”, also adding, in the text letter, “please find attached hereto the original copy of the final award”.

Upon receipt of such communication, the Italian Company appealed the decision before the Swiss Federal Tribunal on October 24, 2014, by asking, primarily, the issue of a stay of enforcement and the annulment of the award or, in turn, its sent back to the arbitral tribunal for a new decision in accordance with the reasons in the judgment of the Federal Tribunal.

The presiding judge of the Court issued a first stay of enforcement on January 20, 2015.

Nevertheless, with judgement n. 4A_609/2014[10], the Court declared the matter ‘not capable of appeal’, as the application was considered late and out of time (‘only’ on October 24), given that “it is indeed the date of notification of the decision under appeal which is relevant and not the time at which it was read by the addressee[11].

It sentenced, consequently, the Petitioner to pay the judicial costs, corresponding to 5,000 Swiss CHF, and the reimbursement of 15,000 to the Respondent for the federal judicial proceeding.

4. The second award: b) the (new) request for revision

The legal casebetween the parties had a further follow.

A new (final and last) request for revision was lodged by the Italian company, upon a decision of the Union Cycliste Internationale (UCI) - mentioned by the press on July 12, 2014 - which imposed a two years sanction (and disqualification and cancellation of the sport results in the years 2009-2010 and 2012) for doping upon the team leader and “image man” of the aforesaid cycling team.

This time, the matter was not whether to consider (or not) relevant the news on the (alleged) doping offence for the athlete, but whether to consider (or not) relevant - always for the purposes of article 123 para. 2), let. a), of Swiss LTF - the disqualification of the “top” athlete of the cycling team, which intervened not only after the contract, but also after the first arbitration between the parties.

The Italian company claimed, in particular, that it would not have sponsored the cycling team “if it had known that among its cyclists it included an athlete who had repeatedly breached the UCI Doping Regulations[12].

Nevertheless, in spite of such grievances, with judgement n. 4A_645/2014[13], the Swiss Federal Tribunal rejected the second request for revision, by sentencing, consequently, the Petitioner to pay the judicial costs, corresponding to 10,000 Swiss CHF, and the reimbursement of 12,000 CHF to the Respondent for the federal judicial proceeding.

5. The laws and regulations concerned: A) the Swiss PILA

Starting our analysis with the main laws related to the concerned case, we could split them into two categories: the rules on jurisdiction of the Swiss Federal Court in the matter of arbitration, and the rules governing the proceedings before the same Court (LTF).

It is worth mentioning that the Rules in the field of international arbitration in Switzerland are provided by the Swiss Federal Statute on Private International Law (PILA)[14], in particular on Chapter 12 (‘International Arbitration’, arts. 176-194).

As the two parties (an Italian company, on one hand, and the Spanish company, on the other) were domiciled abroad Switzerland at the time the arbitration agreement was entered into[15], as well as all the challenged awards were rendered in Switzerland (the seat of arbitration was Lugano), there is no doubt that jurisdiction belongs to the Swiss Federal Court.

Art. 176 (‘Field of application; seat of the arbitral tribunal’) of Swiss PILA, reads as follows: “The provisions of this chapter shall apply to all arbitrations if the seat of the arbitral tribunal is in Switzerland and if, at the time of the conclusion of the arbitration agreement, at least one of the parties had neither its domicile nor its habitual residence in Switzerland” (so para. 1).

In the following para. 2, it also provides that: “The parties may exclude the application of this chapter by an explicit declaration in the arbitration agreement or by an agreement at a later date and agree on the application of the third part of the C(ivil) P(rocedure) C(ode)”.

In relation to that, judgement n. 4A_645/2014 points out that, even if the parties were domiciled abroad Switzerland, according to Swiss jurisprudence and case law - which filled a loophole in this matter - “they may accordingly avail themselves of the extraordinary legal recourse of revision, for which the Federal Tribunal has jurisdiction[16].

The proposition, according to which the jurisdiction - in such matter - belongs to the Swiss Federal Court is further reinforced by the fact that there was no indication - in the arbitration agreement - that the parties waived the right to arbitrate within the meaning of art. 176, para. 2, of Swiss PILA.

It must also be remembered that an appeal of the award before the Swiss Federal Supreme Court is permitted pursuant to articles 190-192 of Swiss PILA.

Art. 190, in particular, reads as follows: “The award shall be final when communicated” (so para. 1), and - in the next para. 2 - it states that: “It (the award) can be attacked only: a) if a sole arbitrator was designed irregularly or the arbitral tribunal was constituted irregularly; b) if the arbitral tribunal erroneously held that it had or did not have jurisdiction; c) if the arbitral tribunal ruled on matters beyond the claims submitted to it or if it failed to rule on one of the claims; d) if the quality of the parties or their right to be heard in an adversarial proceeding was not respected; e) if the award is incompatible with Swiss public policy”.

In other words, only the grievances listed in art. 190 (para. 2) of Swiss PILA are admissible.

6. B) the Swiss Law of Federal Tribunal (LTF): 1) the rules on deadline

Coming to the second category of the rules at issue - namely the ones governing the proceedings before the same Swiss Federal Tribunal (LTF) - in the case of judgement n. 4A_609/2014 it is in point art. 44, 48 and 100 of the Swiss Law[17].

Art. 44 (‘Effect’), para. 1 - inserted in Section 5 (‘Deadlines’) of the Law - reads as follows: “the deadlines whose effect depends on the notification or the occurrence of an event shall run from the day after” (unofficial translation).

The following art. 48 (‘Compliance’) provides that: “the appeal brief must be submitted to the Federal Tribunal either at its address or via the Swiss Mail or to a Swiss embassy or consulate at the latest on the last day of the time limit to appeal” (so para. 1, unofficial translation), while art. 100 (‘Appeal against decisions’), of Section 4 (‘Time for appealing’), reads as follows: “An appeal against the decision must be filed with the Federal Court within 30 days of notification of the full  text of the decision” (so para. 1, unofficial translation).

According to the mentioned provisions it is thus clear that the appeal against a decision to the Swiss Federal Tribunal must be submitted at latest within 30 days of notification of full text[18] of it, by lodging it or by direct delivery to the Federal Tribunal, or by dispatch to its address with the Swiss Post, or by direct delivery (or dispatch) to the Swiss diplomatic and consular representations, no later than the last day of the term mentioned above.

In this regard, the judgment points out that the advance copy of the award was sent by electronic mail in the late afternoon of September, 23 (attached to it)[19].

It also reminded that the wayin which an award is notified depends upon the agreement of or the rules chosen by the parties[20], who, in the case at hand, had chosen UCI Cycling Regulations[21].

Nevertheless, such Regulations “do not embody a requirement that the parties should be notified with an original of the award signed by the arbitrators and the Appellant does not argue to the contrary[22].

Consequently, the case at stake was different from that on which the case law quoted in the appeal was based, which relates to the notification of awards issued by the Court of Arbitration for Sport[23], or pursuant to art. 55 of the Expedited Arbitration Rules of the World International Property Organization[24].

In such judgments, it was held that the transmission of a copy (by fax) of the award did not start the time limit provided on art. 100, para.1, of LTF, as the applicable rules required that an original copy (signed by the Chairman, or Chairwoman of the Panel) had be notified to the parties.

Notification that instead, in the case at issue, had already been completed on September 23, as already equipped with the full document.

It was further noted (by the opponent) that communications via e-mail has been used many times in the course of the arbitration proceeding either by the Arbitration panel[25], either by the same parties[26], underlining - in this way - that the procedure between the parties has been consolidated in the sense of use as the main (though not exclusive) means of communication the electronic mail.

In other words, in the case at stake, the deadline for challenging the decision was starting on September 23 (day in which the notification had been completed)[27], and the appeal lodged ‘just’ on October 24 (more than thirty days after notification), reason why it was late and out of time.

7. LTF: 2) the rules on revision (and the reference to the Italian law)

In the case of judgment n. 4A_645/2014, it is in point art. 123 and 124 of the Swiss LTF.

Art. 123 of LTF - provided on Chapter 7 (“Revision, rectification and interpretation”), Section 1 (“Revision”) of the same Law - gives the party the opportunity to ask for revision of the decision (in the matter of civil and public law) on condition that “the plaintiff, after delivery of the judgment becomes aware of relevant facts or finds evidence decisive that did not introduce in the previous proceedings”, in exclusion of “facts and evidence subsequent to the judgment” (as already mentioned).

The next art 124 provides that, in such case, the request for revision must be filed within 90 days from the discovery of the ground for revision[28].

As pointed out by the decision, from the wording of the provision (art. 124) “the fact invoked must be pertinent and apt to change the findings of a fact on which the challenged decision was based and hence to lead to a different solution from that in the award, the revision of which is sought on the basis of a correct legal assessment[29].

In the case at stake, two were the questions submitted to Swiss Federal Court.

In the first case, the question was whether to consider relevant or not - for the purposes of art. 123 - the news (published after the issue of the award) on doping accusations to the “top-athlete” of the cycling team.

The Court - with first judgment n. 4A_750/2011 - didn’t consider it relevant, providing a response which appears - both from the formal and from the substantial point of view - correct (as the party cannot appeal, indeed, to simple news to ask for a revision of the judgment, as they are mere voices which need to be confirmed).

However, the second case, settled by judgment n. 4A_645/2014, seems different.

In this (and next) case the question was whether to consider relevant or not the sanction for doping imposed on July 12, 2014 (even in this case, after the award was rendered) by the UCI (Union Cycliste Internationale) to the same athlete of the Spanish cycling team, due to anomalies in his biological passport[30].

The Swiss Federal Court, with the judgment already mentioned, didn’t consider the fact relevant - almost “not susceptible to change the factual findings on which the award is based[31] - for the purposes of art. 123, on the basis, fundamentally, of two arguments.

First, the fact discovered by the Petitioner (a sanction imposed due to anomalies on his biological passport) was not considered able to “lead to the conclusion that the Respondent knew of the cyclist’s behavior[32].

Second, that the Petitioner didn’t explain “how it would be possible to infer from the single fact (editor’s note: doping disqualification) on which the request for revision is based that there would have been a breach of the Respondent’s contractual obligations[33].

In doing so, it recalled the contractual obligations provided on articles 6.2 and 6.3 of the contract (according to which the Spanish team has undertaken a ‘duty of care’ on its cyclists’ sporting behavior), and - most of all - on article 6.4 of the same contract, according to which “The SPORT GROUP, pursuant to a written request of the SPONSOR, undertakes to terminate forthwith the contract of any cyclist and/or staff member of the SPORT GROUP and of the TEAM who, by any action or behavior damages the image of the SPONSOR, particularly on grounds of doping”.

So much, for the purpose to affirm that the fact (doping disqualification of the athlete) is “not susceptible to change the factual findings on which the award is based”.

In our opinion, this aspect would have deserved a better insight.

If the first argument seems, indeed, convincing (being very difficult, indeed, to assume that the Spanish team was aware of the ‘improper’ conduct of its athlete,that is especially true in the period prior to the conclusion of the contract), the second argument does not seem, however, fully convincing.

As a matter of fact, in their contractual obligations the parties have actually agreed a ‘duty of care’ of the cycling management’s company on its athletes sporting behavior, and they did it with particular regard to the case where the disqualification of a cyclist because of doping is likely to damage the image of the sponsor (for the natural association of its name and logo to its sports team membership)[34].

Moreover, if it is true - as is true - that the Italian law governed the relationship between the parties[35], not entirely appropriate seems the reference - made by the Court - to Article. 1442 of the Italian Civil Code (which rules the action for annulment of the contract, with particular regard to the limitation period), to dismiss the objection, raised by the plaintiff, “that it was acting in fundamental error[36].

More appropriate, indeed, it would be the reference to articles 1175 (“Fairly behavior”)[37], 1375 (“Execution in good faith”)[38], and especially to article 1337 (“Negotiations and pre-contractual liability”)[39] of the same Code.

On the contrary, in a rather hasty and dismissive way the Court held that “the fact discovered by the Petitioner (a sanction imposed due to anomalies found in the biological passport) is not susceptible to change the factual findings on which the award is based”, as well as the Petitioner didn’t explain “how it would be possible to infer from the single fact (or to say: doping disqualification) on which the request for revision is based that there would have been a breach of the Respondent’s contractual obligations[40].

8. Conclusions

Which lessons can be learned by the case at issue ?

The first decision (n. 4A_750/2011) didn’t really solve the question as to whether “facts” - in the meaning of article 123, para.2, lett. a) of the Swiss Law of Federal Tribunal - could emanate from newspaper articles and website postings[41], even if the case does, however, “underline the importance of demonstrating that any new facts or evidence are of a nature to influence and change the findings of the underlying award[42].

It didn’t do so, however, with regard to the second decision (n. 4A_645/2014), in which it didn’t consider relevant - for the purposes of article 123 para. 2), let. a), of Swiss LTF - the disqualification for doping of the “top” athlete of the cycling team.

The Court, rather, merely reaffirmed its jurisprudence on the standard for revision of an arbitral award[43] - which can be invoked only where: a) the applicant discovered facts that existed during the arbitration, which were previously unknown to him; b) those facts are capable of affecting the findings of fact in the underlying award and of leading the tribunal to a different decision based on the proper legal assessment of them - without going too much into the issue.

In our opinion, almost two could be lessons to be learned from this court case.

First, the need to predetermine in the most appropriate and detailed way all the possible causes of termination of sponsorship contract between the sponsor company and the sports club, especially in cases ofmisconduct or negligence by the athletes (particularly with regard to cases of violation of anti-doping regulations)[44].

Secondly, the importance of determining with absolute precision the day from which starts to run the 30-days deadline to challenge the award before the Swiss Federal Court.

As duly noted by a doctrine[45], the case at hand “demonstrates that one cannot rely on the normal practice of the Swiss courts, that is, that only formal notification triggers the deadline for an appeal[46].

If a party wants to challenge an award rendered in Switzerlandbefore the Swiss Federal Supreme Court, it must be very careful in determining the start of the 30-day deadline in doing so, starting this term effect from the date of transmission of the decision via registered (and certified) e-mail

In the case at issue, indeed, the Supreme Court’s approach was different than the situation where the arbitration rules clearly state the method by which an arbitral award must be communicated.

In its earlier (and previous) decisions, the Swiss Supreme Court calculated the 30 days for filing a set aside proceeding according to the date on which the award was communicated to the parties in compliance with the agreed procedure for notification[47].

In the field of “sports-related dispute[48], the ‘institutional’ arbitration rules, usually agreed upon between the parties (and usually inserted in the contract), generally refer to R31 of the Code of Sports-related Arbitration[49], according to which: “All arbitration awards, orders, and other decisions made by CAS and the Panel shall be notified by courier and/or by facsimile and/or by electronic mail but at least in a form permitting proof of receipt” (so para. 2), as well as: “Any other communications from the parties intended for the CAS Court Office or the Panel shall be sent by courier, facsimile or electronic mail to the CAS Court Office” (so para. 5, last part)[50].

So the main lesson (or advice) from this decision is that where parties decide to use an ad hoc arbitration, they should also be careful to either agree on the pursued method for communicating awards by the arbitral tribunal expressly, or - in the absence of such express agreement - to appeal against the decision within 30 days from the notice of the award according to the method of communication adopted by the parties and arbitrators during the proceedings (in this case: registered - and certified - email).

Careful then, as “vigilantibus, non dormientibus iura succurrunt”, even in a sponsorship contract.

 

[1] The latin maxim means: “the law assists those that are vigilant with their rights, and not those that sleep thereupon”;

[2] The decision no. 609/2014 is available on-line to the following URLs: http://www.servat.unibe.ch/dfr/bger/150220_4A_609-2014.html (Italian original), and http://www.swissarbitrationdecisions.com/sites/default/files/20%20f%C3%A9vrier%202015%204A%20609%202014.pdf (English). For a brief comment, see N. VOSER and A. PETTI, “Diligence is required when determining the 30-day deadline for challenging awards” (on Practical Law Arbitration, April 28, 2015, available on-line to the following URL: http://www.swlegal.ch/getdoc/c1d73643-5b28-45cd-8f70-5d877c150ddd/2015_Nathalie-Voser_Angelina-Petti_Diligence-is-re.aspx).

The decision no. 645/2014 is available on-line to the following URLs: http://www.servat.unibe.ch/dfr/bger/150220_4A_645-2014.html (Italian original), and http://www.swissarbitrationdecisions.com/sites/default/files/20%20f%C3%A9vrier%202015%204A%20645%202014.pdf (English). For a brief comment, see N. VOSER and A. PETTI, “Facts for a revision must have bearing on outcome of award”, (on Practical Law Arbitration, April 28, 2015, available on-line to the following URL: http://www.swlegal.ch/getdoc/b86a0336-bf08-4099-ba99-0e22fdafefa8/2015_Nathalie-Voser_Angelina-Petti_Facts-for-a-rev.aspx);

[3] as recalled by judgment n. 4A_645/2014 (point 3.2.2. of the decision);

[4] the Swiss Law of Federal Tribunal (LTF) of June 17, 2005 (RS 173. 110), entered into force on January 1, 2007. The Law is available on-line, on the official languages of Switzerland, to the following URLs: https://www.admin.ch/opc/it/classified-compilation/20010204/index.html (Italian version), https://www.admin.ch/opc/de/classified-compilation/20010204/index.html (German version), and https://www.admin.ch/opc/fr/classified-compilation/20010204/index.html (French version);

[5] the Italian Company added that the cyclist also appeared on a ‘confidential list’ of athletes suspected of doping;

[6] provided on Chapter 7 (“Revision, rectification and interpretation”), Section 1 (“Revision”), of the same Law;

[7] dated 21 August 2012 and published on 1 October 2012, available on-line to the following URLs: http://www.swissarbitrationdecisions.com/sites/default/files/21%20ao%C3%BBt%202012%204A%20750%202011.pdf (English); http://www.bger.ch/it/index/juridiction/jurisdiction-inherit-template/jurisdiction-recht/jurisdiction-recht-urteile2000.htm  (Italian original).  For a brief comment, see N. VOSER and A. PETTI, “Revision of international arbitral award rejected: no material new facts or evidence”, on Practical Law Arbitration, November 1, 2012, (available on-line to the following URL: http://uk.practicallaw.com/7-522-1823?service=arbitration [English]);

[8] so point 2, second paragraph, of the decision (‘Reasons’);

[9] amount considered “excessive” by a doctrine (C. PONCET, in his short comment of November 1st, 2012), who calls for a revision of the Swiss Federal Court in the matter, “as the costs of some of the ‘Swiss’ appeals are sometimes becoming excessive when compared to other arbitral venues”;

[10] dated 20 February 2015, and published next March 12 (the decision is available on-line, also to the following URL: http://www.swissarbitrationdecisions.com/sites/default/files/20%20f%C3%A9vrier%202015%204A%20609%202014.pdf (Italian original);

[11] so point 2.3.3. of the decision;

[12] so point ‘B’ of the decision n. 4A_645/2014;

[13] dated 20 February 2015, and published next March 12 (the decision is available on-line, also to the following URL: http://www.swissarbitrationdecisions.com/sites/default/files/20%20f%C3%A9vrier%202015%204A%20645%202014.pdf (English);

[14] ‘PILA’ is the most commonly used English abbreviation for the Swiss Federal Statute on Private International Law of December 18, 1987 (the law is available on-line, on the English version, to the following URL: https://www.swissarbitration.org/sa/download/IPRG_english.pdf); 

[15] as pointed out on para. 1., both on decision n. 4A_750/2011, and on decisions n. 4A_609/2014 and 4A_645/2014 (in all of them, see the first part of the ‘Reasons’);

[16] so point 1 of the Reasons, which refers to decision n. 4A_42/2008 of March 14, 2008, point 2, according to: “PILA contains no provision with regard to requests for revision of awards of an Arbitral Tribunal within the meaning of Art. 176 ff. PILA. According to case law of the Federal Tribunal, which supplemented the loophole, the parties to an international arbitration proceeding may avail themselves of the extraordinary legal remedy of a request for revision, which falls within the jurisdiction of the Federal Tribunal (BGE 118 II 199 E. 2 and 3 S. 200 ff.; see also BGE 129 III 727 E. 1 S. 729). If the Federal Tribunal grants the request for revision, it does not decide the matter itself, but sends it back to the Arbitral Tribunal which decided the matter or to a new arbitration tribunal to be constituted (BGE 118 II 199 E. 3 S. 204; Decision 4P_117/2003 of October 16, 2003 E. 1.1).” The full text of the decision is available on-line to the following URL: http://www.swissarbitrationdecisions.com/request-for-revision-of-an-arbitral-award (English version);

[17] the Swiss Law of Federal Tribunal (LTF) of June 17, 2005, is available on-line, to the following URLs: https://www.admin.ch/opc/it/classified-compilation/20010204/index.html (Italian version), https://www.admin.ch/opc/de/classified-compilation/20010204/index.html (German version), and https://www.admin.ch/opc/fr/classified-compilation/20010204/index.html (French version);

[18]testo integrale’, in the Italian version of the Law (official text);

[19] as pointed both in point 2.1, and in point 2.3.3., of the decision;

[20] recalling, in this regard, judgment 4A_582/2009 of April 13, 2010 (point 2.1.2 of the decision, according to which: “Pursuant to Art. 100 (para. 1) LTF, an appeal must be filed with the Federal Tribunal within 30 days following full notification. Provided the date of receipt can be ascertained, Art. 112 (para. 1) LTF does not impose any method of communication (so BERNARD CORBOZ, in Commentaire de la LTF [LTF Commentary], 2009, no. 12 ad Art. 112). PILA does not specify the communication method of the award either. Consequently, the issue depends firstly on part of the agreement of the parties or on the arbitration rules they chose (judgment 4P. 272/1999 of 20 June 2000 at point 5.a)”. Furthermore, “According to art. 55 of the WIPO's Expedited Arbitration Rules (hereafter: the Rules), applicable in this case, the award must be in writing and state the date on which it was made, as well as the place of arbitration (b); it must be signed by the arbitrator (d). The aforesaid provision specifies in the second sentence of (f) that ‘the Center shall formally communicate an original of the award to each party and the arbitrator’. In accordance with art. 57 (b) of the Rules, the award is effective and becomes binding for the parties as from the date on which it is communicated in this manner”, underlining that, in the case at stake, “the preliminary award was formally communicated to the Appellant's counsel by a letter of 16 October 2009 on WIPO letterhead, which made reference to Art. 55 (f) of the Rules. The intended recipient of this letter collected the registered letter containing the document from a post office in Lausanne on 23 October 2009. The time limit to appeal therefore began the next day (Art. 44 (1) LTF) and it was not elapsed when the appeal was filed on 20 November 2009”, and that “in this regard, it does not matter that a copy of the preliminary award had already been communicated by the Center on to the Appellant's representative as an attachment to its electronic mail 7 October 2009, or that the Appellant relied on the award at a hearing for a summary judgment on 9 October 2009, as the Respondent maintains by producing two exhibits which incidentally, are admissible since they relate to the issues as to whether or not the decision is capable of appeal (see judgment 4A_464/2009 of 15 February 2010 at 3.3.2). Indeed, such communication did not bear the official character required by the Rules, since the exhibit communicated was not the original of the award. Hence, it could not cause the time limit of art. 100 (para. 1) LTF and begin running”);

[21] so point 2.3.1. of the decision;

[22] so point 2.3.1. of the decision;

[23] see, in this regard, judgment 4A_392/2010 of January 12, 2011, published on February, 16 (FC Sion vs. FIFA + Al Ahly Sporting Club, point 2.3.2 of the decision, according to which: “In the first edition of their work two specialists of international arbitration wrote that notification by fax was sufficient to start the time limit to appeal (KAUFMANN-KOHLER/RIGOZZI, Arbitrage international, 2006, n° 733). In support of that opinion however, they quoted a precedent - judgment 4P.88/2006 of July 10, 2006 at 2.3 - which did not decide the issue (judgment 4A_628/2009 of February 17, 2010 at 25). In the second edition of the same work published in 2010 the authors are less affirmative and reserve the possibility that the parties or the arbitration rules may provide for specific modalities of notification (op. cit., n° 733). They add that the same should apply when the CAS notifies an award by fax whilst indicating that ‘the original shall be notified by registered letter subsequently’. They add that as long as the issue is not decided by the Federal Tribunal a prudent appellant will nonetheless calculate the time limit from the notification by fax (op. cit., p. 465, footnote n° 524)”, adding, moreover, that “The Federal Tribunal recently addressed a case comparable to the present one. As to Art. 55 of the Expedited Arbitration Rules of the World Intellectual Property Organization (WIPO; hereafter: the Rules) which provide for formal notification to the parties of an original of the award signed by the arbitrator, this Court ruled out that the time limit to appeal could run from the communication of the award as an annex to an e-mail because such communication did not have the official character required by the Rules (judgment 4A_582/2009 of April 13, 20106 at point 2.1.2 not published in ATF 136 III 200). Art. R31 (para. 2) of the Code provides that the CAS awards are notified ‘by any means permitting proof of receipt’. As to Art. R59 (para. 1) of the Code it requires the awards to be signed at least by the Chairman of the Panel. Following the precedent quoted and even though these two provisions are less categorical than Art. R55 of the Rules it must be admitted that notifying a CAS international arbitral award by fax does not cause the time limit of Art. 100 (para. 1) LTF to start running: on the one hand a signature by hand cannot be substituted by the signature of the original with a copy faxed to the addressees of the award (see mutatis mutandis ATF 121 II 252 at point 3); on the other hand a fax is generally not a mean allowing proof of notification”;

[24] article 55 of such Regulations, provides, in fact, that: “The award shall be communicated by the Tribunal to the Center in a number of originals sufficient to provide one for each party, the arbitrator and the Center. The Center shall formally communicate an original of the award to each party and the arbitrator” (see, in this regard, judgment 4A_582/2009 of April 13, 2010, and the point 2.1.2 of the decision, already cited on footnote 20);

[25] recalling, in this regard, paras. 9, 35, and 62 of the challenged award showing that the Claimant was asked via electronic mail to pay its share of the provisional deposit unpaid by the Respondent, and that a time limit was given to the Claimant to state its position as to a submission of the defendant, and the amendment of Procedural Order n. 2 in the same manner (so point 2.3.2. of the decision);

[26] recalling, in this regard, paras. 35 and 78 of the challenged award, showing that the Claimant’s requests as to the Defendant’s failure to pay the fee deposit and the joint request of the parties to postpone some procedural deadlines were submitted by electronic mail (so point 2.3.2. of the decision);

[27] as the full text of the decision was attached to the email;

[28] so para. 2, lett. d) of the article;

[29] recalling, in this regard, judgment no. 4A_763/2011, of April 30, 2012, point 3.1 (the full text of the decision is available on-line, to the following URL: http://www.swissarbitrationdecisions.com/request-for-revision-of-an-icc-award-rejected-the-petitioner-mus [English version]);

[30] which led to his disqualification for two years and to the annulment of his ranking in the Tour de France 2009, 2010, and 2012;

[31] so point. 3.2.2. of the decision;

[32] so point 3.2.2. of the decision;

[33] so point 3.2.2. of the decision;

[34] as provided by article 6.4 of the contract (which had given the parties the opportunity to terminate the contract upon the occurrence of such an event);

[35] as stated in paragraph 3.2.1 of the decision;

[36]as was the Respondent at the time it signed the endorsement contract, because it did not know that the aforesaid cyclist was doping” (so point 3.2.1. of the decision);

[37] art. 1175 of the Italian Civil Code provides that: “The debtor and the creditor must behave according to the rules of fairness” (unofficial translation);

[38] art. 1375 of the Italian Civil Code provides that: “The contract shall be performed in good faith” (unofficial translation);

[39] art. 1337 of the Italian Civil Code provides that: “The parties, in the conduct of the negotiation and formation of the contract, must act in good faith” (unofficial translation);

[40] so point 3.2.2. of the decision;

[41] according to a doctrine, the question was “left open” (so N. VOSER and A. PETTI, “Revision of international arbitral award rejected: no material new facts or evidence”, yet cited, on footnote 7);

[42] so N. VOSER and A. PETTI, “Revision of international arbitral award rejected: no material new facts or evidence” (yet cited, on footnote 7);

[43] as properly pointed out by a doctrine (N. VOSER and A. PETTI, “Facts for a revision must have bearing on outcome of award”, yet cited on footnote 2);

[44] even in order to avoid the pretentious or instrumental use of news (both appeared in the media and on the Internet) on the opening of proceedings for doping to some athletes to ask the termination of contract (which, in the meanwhile, has become too ‘dear’ for the sponsoring company);

[45] N. VOSER and A. PETTI, “Diligence is required when determining the 30-day deadline for challenging awards”, yet cited (footnote 2);

[46] because, as pointed out by a Study conducted by the EU, Directorate General for Internal Policies (“Legal Instruments and Practice of Arbitration in the EU”, 2014, Study for the Juri Committee - EU Policy Department of citizen's right and constitutional affairs), “The above analysis (on ad hoc v. institutional arbitration, editor’s note) demonstrates that, under particular circumstances, arbitration needs to rely on a pre-existent, permanent framework of support” (so page 38 of the Report, the full text document is available on line to the following URL: http://www.europarl.europa.eu/RegData/etudes/STUD/2015/509988/IPOL_STU(2015)509988_EN.pdf);

[47] so Swiss Federal Court, n. 4A_392/2010 (FC Sion Association vs. FIFA + Al Ahly Sporting Club, yet cited on footnote 23), and n. 4A_394/2010 (El Hadary vs. FIFA + Al Ahly Sporting Club, available on-line to the following URLs: http://www.swissarbitrationdecisions.com/sites/default/files/12%20janvier%202011%204A%20394%202010.pdf, (English version), and http://www.bger.ch/it/4a_392_2010_d.pdf, (French version), all of January 12, 2011, in which the Supreme Court held that the petitions, filed more than thirty days after the receipt of a fax copy of the award, were timely as the time period only started running from the receipt of the award by registered mail. For a brief comment of the decisions, see N. VOSER and A. TRUTTMANN “Supreme Court confirms time limit for petition to set aside a CAS award does not start running upon receipt of a fax copy of the award”, on Practical Law Arbitration, March 2, 2011, available on http://www.swlegal.ch/getdoc/c0896983-9a33-4814-b69a-d2346f09257d/2011_Nathalie-Voser_Aileen-Truttmann_Swiss-Sup-(1).aspx (English);

[48] so R27 of CAS Code (“Application of the Rules”);

[49] available on-line to the ‘institutional’ website of the Court of Arbitration for Sport (www.tas-cas.org) to the following URL: http://www.tas-cas.org/fileadmin/user_upload/Code_2016_final__en_.pdf (English version);

[50] the underlying rationale for this provision is the maintenance of control by the CAS , which “is understandable insofar as the Panel does not play a direct role in the actual conduct of CAS proceedings and given that the parties litigating before the CAS are not always represented by counsel accustomed to the practices of international arbitration” (so A. RIGOZZI/E. HASLER/B. QUINN, “The 2011, 2012 and 2013 revisions of the code of Sports related arbitration”, on Jusletter, June 3, 2013);