X. v. Y. and Z. [Membership in the International Bowling Federation] No. 4A_258/2008 - Swiss International Arbitration Law Reports (SIALR) - 2008 Volume 2 No. 2

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15 pages

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December, 2008

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Headnote

■ The filing of a brief by either party in setting aside proceedings

will be considered timely provided that it has reached the office of

the clerk of the Swiss Federal Supreme Court, the Swiss Postal

Service, or a Swiss consular agency before the expiry of the time

limit.

■ Neither public policy nor the doctrine of sanctity of contracts may

be relied upon by a petitioner to complain of the interpretation and

construction of the bylaws of a private federation by an arbitrator.

Summary of the Decision

X. is a national sports federation and member of Y., an international

sports federation. Z. is a regional sports federation, which submitted an

application to become a member of Y. Y.’s executive committee

unanimously accepted Z.’s application. X. appealed against Y.’s decision

before a CAS panel on the ground that it violated Y.’s bylaws as well as

the national law of X.; Z. was joined to the arbitration by Y. The CAS

panel determined that the national law of X.’s place of incorporation did

not apply and that Y.’s decision was not inconsistent with its bylaws. X.

then brought setting aside proceedings before the Swiss Federal Supreme

Court claiming that the CAS panel’s award breached public policy.

The Swiss Federal Supreme Court held firstly that Z.’s answer to the

application to set aside was belated. According to article 48(1) FSCA, a

submission is timely provided that it reaches the office of the clerk of the

Supreme Court, the Swiss Postal Service or a Swiss consular agency

before the expiry of the time limit. Z.’s answer did not comply with this

requirement as it had been mailed from abroad too late to reach the Swiss

Postal Service in time; the fact that a party’s brief is given to a foreign

post office before the expiry of the time limit is irrelevant and per se

insufficient to comply with the time limit. A brief filed by telecopier,

even before the expiry of the time limit, is also inadmissible.

Secondly, the Court held that a petitioner may not rely upon public

policy or the doctrine sanctity of contracts to complain of the

interpretation and construction of the bylaws of a private federation by

an arbitrator. A decision by an international federation to allow