Swiss Federal Tribunal (SFT) Appeal Case: WADA v. Sun Yang & FINA (4A_318/2020)
In Sun Yang, the SFT vacated a CAS award (CAS 2019/A/6148) for circumstances – specifically, the content of several “tweets” published on an arbitrator’s twitter account – that justified the removal of the arbitrator.
The decision shed light on two practical aspects of how an appeal alleging arbitrator bias will be assessed by the SFT.
First, on the scope of the parties’ duty to investigate an appointed arbitrator, the SFT held that while parties are expected to use the main internet search engines available and to review any sources of information likely to provide information on a possible risk of bias, they cannot be expected to continue scouring the internet throughout arbitration proceedings, or to scrutinise messages posted on social networks by arbitrators during arbitration proceedings. In addition, the SFT held that the mere fact information is freely accessible on the internet will not automatically mean a party that has not discovered that information after having performed research is in breach of its duty to investigate.
See 4A_318/2020, para. 6.5: in this case, the SFT held that Sun Yang could not be found at fault for failing to carry out a search that included the word “China”.
Second, on how an arbitrator’s impartiality should be assessed, the SFT held that the mere appearance of bias can be sufficient to disqualify an arbitrator, citing the maxim “justice must not only be done: it must be seen to be done”.
Doubts as to an arbitrator’s impartiality must, however, be objectively verifiable.
Consistent with Sections 2(b) and (c) of the IBA Guidelines on Conflicts of Interest in International Arbitration, doubts will be justified if a reasonable third party, having knowledge of the relevant facts and circumstances, would reach a conclusion that there is a likelihood the arbitrator at issue may be influenced by factors other than the merits of a case.
The SFT has thus held that, while it is perfectly legitimate for an arbitrator to express opinions on social media, this does not mean an arbitrator can post anything he wants without giving rise to doubts as to his impartiality.
See 4A_318/2020, para. 7.
CAS Website: ‘www.tas-cas.org’.