You may have seen it on the news recently – the swimmer Sun Yang’s eight year ban upheld by the Court of Arbitration for Sport (CAS) was annulled by the Swiss Supreme Court on the grounds that there were justifiable doubts as to the impartiality of the presiding arbitrator, Mr Franco Frattini. In 2018, Sun Yang was charged with an anti-doping rule violation but was cleared by the FINA Doping Panel in 2019. That decision was appealed by the World Anti-Doping Agency (WADA) in the CAS which led to his suspension in 2020. Later that year, Sun Yang applied for revision of the award, which was annulled in December 2020 with reasons published in January 2021.
Now I won’t extract what Mr Frattini did to give rise to those doubts, but you can see them for yourself in an article from Practical Law here. It doesn’t make for pretty reading. A quick scroll through his Twitter account (@FrancoFrattini) shows a homage to all things canine: of his 28,000 (and counting) tweets and retweets, 98% are related to humankind’s best friend. The other 2% are ferociously feline. Here is where four worlds collide – the righteous crusader for animal rights, the international high-stakes swimming circuit, the rarefied air of Swiss private international law, and the geopolitics of race, ethnicity and representation. A real dogfight.
Do you need a Truffle Hunting Beagle?
Putting all this aside for the moment, we have probably read (or read about) the Halliburton decision by the UK Supreme Court handed down in late November 2020. The decision clarified how apparent bias will be assessed by the English courts, and once again highlighted how important it is for arbitrators to be (and be seen to be) impartial in English-seated arbitration. In many respects, it is a cardinal duty which transcends systems and traditions of law.
Both decisions also found support and guidance for this duty of impartiality in the best practices set out in the IBA Guidelines. In Halliburton, a separate but related concept discussed was the duty to disclose facts and circumstances which would or might reasonably give rise to the appearance of bias. Failing to disclose is one factor which a fair-minded and informed observer will take into account in considering whether there was a real possibility of bias. The Swiss decision appears to have approached things from a different angle: a duty to investigate the existence of possible grounds for challenge that could affect the composition of the arbitral tribunal.
This discussion arose because the challenge to the CAS Award was made out of time, and therefore gave rise to a question whether the objections to Mr Frattini’s impartiality could have been raised earlier (i.e – when the Tweets were made in 2018 and 2019). Sun Yang’s lawyers submitted that he had only learned of the unacceptable tweets in May 2020. The Court held that while there is a duty to investigate (and conduct some initial enquiries), this was not a continuing obligation to conduct extensive searches on key social networks throughout the arbitration. So, no duty to beagle around for those alba truffles. This makes sense because if any junior lawyer working on the case had to sift through 28,000 pet photos and memes to try and find anything potentially objectionable, there would be a dog’s chance of getting any other (legal) work done. However, having done some mind-numbingly dull discovery work in the past, this may actually not be such a bad thing.
Can you teach an old dog new tricks?
What lessons can we learn from the annulment of this award? A little bit of due diligence can go a long way. For one, if you have any teenage children, consider getting them to do a social media search of the arbitrator or arbitrators being considered in your dispute (to the extent that this is legally permissible in your jurisdiction and not in breach of any applicable arbitral rules or relevant contractual provisions). This is only half-said in jest. If this option is not available, a graduate or young lawyer in your team may have to do. However, if they are born in the last millennium, they may already be behind the times. Separately, the bar to a challenge based on lack of impartiality is still high in most jurisdictions. Such challenges rarely succeed. The facts involved in this decision were certainly unique.
Groundhog Day
However, although the CAS award has been annulled, a newly-constituted CAS panel can still render a new award. One would expect that any new panel appointed would keep themselves on a tight leash with respect to any social media proclamations. Stay tuned, because there’s still life in the old dog.
