Athletics South Africa v. Thys [Gert Thys] No. 4A_456/2009 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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Originally from: 

Swiss International Arbitration Law Reports 2010 Vol. 4 Nos. 1 and 2

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No. 28

Athletics South Africa v. Thys

[Gert Thys]

No. 4A_456/2009

Headnote

■ Setting aside proceedings are a remedy such that where a

petitioner is successful, the challenged award can only be set aside.

However, where the dispute relates to the jurisdiction of an arbitral

tribunal, the Court may itself exceptionally declare that the arbitral

tribunal has, or does not have, jurisdiction (confirmation of previous

decisions).

■ An arbitration agreement must be interpreted and construed

according to the general rules of contract interpretation.

Accordingly, where the parties’ actual mutual intentions cannot be

determined, one must determine the parties’ presumed intentions

based on the rules of good faith, having regard to the expressions

used by the parties, the context in which such expressions were used

as well as the circumstances as a whole (confirmation of previous

decisions).

■ A mere reference to CAS appeal proceedings contained in a letter

sent to an athlete by an international association, stating that an

appeal against a decision made by a disciplinary commission of such

association would lie to the CAS, is not sufficient to constitute a valid

CAS arbitration agreement.

Summary of the Decision

Mr. Gatatso “Gert” Thys, a successful long-distance runner, is a

member of Athletics South Africa (ASA), which is the national

athletics association for South Africa and is, as such, a member of the

International Association of Athletics Federations (IAAF). On the

occasion of the 2006 Seoul Marathon, Mr. Thys tested positive for 19-

norandrosterone, a prohibited substance. ASA’s disciplinary

commission suspended Mr. Thys and annulled all prizes obtained by

Mr. Thys during the 2006 Seoul Marathon. Mr. Thys challenged the

decision of the disciplinary commission before the Court of Arbitration

for Sport (CAS). ASA challenged the CAS panel’s jurisdiction, as

neither the statutes nor other applicable bylaws made provision for an

appeal before the CAS. The CAS panel held that its jurisdiction could

not be based on ASA’s bylaws. However, it assumed jurisdiction based