Pechstein v. International Skating Union (ISU) [Pechstein II] No. 4A_144/2010 - Swiss International Arbitration Law Reports (SIALR) - 2010 Vol. 4 Nos. 1 & 2

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November, 2013

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Originally from: 

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

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No. 37

Pechstein v. International Skating Union (ISU)

[Pechstein II]

No. 4A_144/2010

Headnote

■ An arbitral award may be revoked on the ground that a new fact

or evidence was discovered after the award was made, provided,

however, that the party seeking revocation was not and could not

have been aware of the newly-discovered fact or evidence

(confirmation of previous decisions).

■ New diagnostic methods and fresh expert evidence filed in a CAS

arbitration in order to determine whether a doping offence was

committed are not a sufficient ground for an award to be revoked.

Summary of the Decision

Ms. Claudia Pechstein, a German ice speed-skater, underwent numerous

blood analyses by the International Skating Union (ISU) between 2000 and

2009. Samples taken by the ISU during a competition revealed an

increased level of reticulocytes, and the athlete was banned for two years

for blood doping. The athlete appealed against this decision before the

CAS, which confirmed the two-year ban. Ms. Pechstein first sought to

have the award set aside by the Federal Supreme Court, which dismissed

the application. She then applied to the Federal Supreme Court for the

revocation of the award, relying on new medical evidence.

The Federal Supreme Court denied the application.

The Court recalled that revocation is an exceptional legal remedy. In

order to decide whether it was impossible for the petitioner to substantiate

the facts and adduce the evidence relied upon in the revocation

proceedings in the arbitral proceedings, the Court would apply a strict test.

This was all the more so when the application for revocation set out

allegations already made in the arbitration proceedings, which the arbitral

tribunal had dismissed based on expert evidence, and relied on fresh expert

evidence allegedly discovered after the notification of the award.

The Court held that the petitioner had not proved that she had been

unable to rely on the alleged new diagnostic method in the CAS arbitration

proceedings. It was not acceptable to rely on scientifically recognised

methods and adduce expert evidence in the arbitration and, after losing the

award, apply for revocation of the award based on some unpublished and