瑞士联邦最高法院驳回孙杨上诉的判决书(4A_406/2021)原文是法语，外网有其法律讨论部分的英文翻译，搬迁至此。
According to art. 54 para. 1 of the FederalSupreme Court Act of 17 June 2005 (FSCA; SR 173.110), the Court writes its judgmentin an official language, as a rule in the language of the contested decision.If the decision was rendered in another language (in this case English), theCourt uses the official language chosen by the parties. Before the CAS, theparties used English, while in their pleadings before the Court, they usedFrench, thereby complying with art. 42 para. 1 FSCA in conjunction with art. 70para. 1 of the Federal Constitution of the Swiss Confederation (Cst.; SR 101;ATF 142 III 521, para. 1), in accordance with its practice, the Court willtherefore render its judgment in French.An appeal in civil matters is admissibleagainst awards in international arbitration under the conditions set forth inArticles 190 to 192 of the Federal Act on Private International Law of 18December 1987 (PILA; SR 291), in accordance with Article 77 para. 1 let. aFSCA.The seat of the CAS is in Lausanne. At leastone of the parties was not domiciled in Switzerland at the relevant time. Theprovisions of chapter 12 of the PILA are therefore applicable (art. 176 para. 1PILA).None of these conditions for admissibility areproblematic in this case, whether it is a question of the subject matter of theappeal, the right to appeal, the time limit for appeal, or the submissions madeby the appellant. There is therefore nothing to prevent the case from going tocourt. The examination of the admissibility of the various complaints raised bythe appellant remains reserved.An appeal against an arbitration award mustcomply with the requirement to state the reasons on which the award is based,as laid down in art. 77 para. 3 FSCA in conjunction with art. 42 para. 2 FSCAand the case law on the latter provision (BGE 140 III 86, para. 2, and thereferences cited). This presupposes that the appellant discusses the reasonsfor the decision and indicates precisely in what way he considers that theauthor of the decision has infringed the law. This can only be done within thelimits of the admissible grounds of appeal against the award, i.e. only withregard to the complaints listed in article 190 paragraph 2 of the PILA when thearbitration is of an international nature. Moreover, as this reasoning must becontained in the notice of appeal, the appellant cannot use the procedure ofasking the Federal Court to refer to the allegations, evidence and offers ofproof contained in the pleadings in the arbitration file. Likewise, it would befutile to use the reply to put forward factual or legal arguments that it hadnot presented in due time, i.e. before the expiry of the non-extendable appealperiod (art. 100 para. 1 FSCA in conjunction with art. 47 para. 1 FSCA) or tosupplement, outside the time limit, an insufficient statement of reasons(4A_478/2017 of 2 May 2018, para. 2.2 and the references cited).The Court rules on the basis of the factsestablished in the contested decision (cf. art. 105 para. 1 FSCA). It cannotcorrect or supplement the arbitrators’ findings ex officio, even if the factshave been established in a manifestly inaccurate manner or in violation of thelaw (cf. art. 77 para. 2 FSCA which excludes the application of art. 105 para.2 FSCA). Its task, when seized of an appeal in civil matters against aninternational arbitral award, is not to rule with full cognition, like anappellate court, but only to examine whether the admissible complaints againstthe award are founded or not. To allow the parties to allege facts other thanthose found by the arbitral tribunal, apart from the exceptional cases reservedby case law, would no longer be compatible with such a mission, even if thesefacts were established by the evidence in the arbitration file. However, the Courtretains the right to review the facts on which the award is based if one of thecomplaints mentioned in art. 190 para. 2 PILA is raised against the said factsor if new facts or means of proof are exceptionally taken into consideration inthe context of the appeal in civil matters (4A_478/2017, supra, para. 2.2).In the first plea, the appellant, invoking art.190 para. 2 let. b of the PILA, argues that the respondent foundation filed anappeal late and that, consequently, the CAS should have declared this pleainadmissible. If it had not done so, but had entered the matter, the Panelwould have wrongly declared itself competent. Therefore, the contested awardshould be annulled in accordance with Art. 190 para. 2 let. b of the PILA.The claimant explains that in a Vekoma decisionof August 17, 1995 (4P.284/1994), the Court ruled that the question of whethera period of time during which arbitration must be initiated has expired fallswithin the scope of art. 190 para. 2 let. b PILA. According to him, in the decision4A_413/2019 of October 28, 2019, concerning a decision in the present caseregarding the alleged inability to apply of the counsel of the respondentfoundation, the Court would have deviated from this jurisprudence by holdingthat “compliance with the time limit for appealing to the CAS constitutes acondition of admissibility and not a problem of jurisdiction”, which excludesthe admissibility of the complaint invoked on this count on the basis of art.190 al. 2 let. b PILA. It did so by relying on an author (Antonio Rigozzi) whohad not examined this precise point and who subsequently formulated an opinionin the sense of the admissibility of the appeal to the Court in order to havethe question of the respect of the time limit for appeal decided in applicationof the Vekoma jurisprudence, the idea being not to leave the party whose appealwas judged to be late facing a denial of justice. The appellant underlines thatif the present case concerns the opposite case, i.e. the one where the arbitraltribunal refuses to put an end to the proceedings notwithstanding the latefiling of the appeal, the solution should not differ from the one that appliesin the opposite hypothesis since art. 190 para. 2 let. b PILA is formulated insuch a way as to treat on an equal footing the case where the arbitral tribunaladmits its jurisdiction and continues the proceedings and the one where itdeclares itself incompetent and puts an end to them. Referring to anotherprecedent (4A_392/2008 of December 22, 2008), he sees this as an example of theCourt’s earlier, more flexible practice of ruling in situations comparable tohis own and wonders why it should not be treated in the same way. In hisopinion, it would be appropriate to be even stricter when sports federationswish to bring an athlete before the CAS, and even more so when the person whoinitiated the arbitration tribunal in the context of a forced arbitration wasnot a party to the first instance proceedings, such as the respondentfoundation, without committing a denial of justice within the meaning of art.30 of the Swiss Constitution and art. 6 para. 1 of the European Convention onHuman Rights (ECHR; RS 0.101). The appellant also cites other decisions inwhich the Court has accepted the admissibility of the complaint under art. 190para. 2 let. b of the PILA in cases where the disputed question did not fallwithin the jurisdiction of the arbitral tribunal in the strict sense (BGE 142III 296; 126 III 524; 118 II 193).On the merits, the appellant, making his ownanalysis of art. 13.7.1 of the Rules, argues that the time limit within whichthe respondent foundation had to file its appeal brief to the CAS expired onMarch 20, 2019 and not on April 10, 2019.In a recent decision, the Court, referring inparticular to two doctrinal contributions (Stefanie Pfisterer, Die Befristungder Schiedsvereinbarung und die Zuständigkeit eines Schiedsgerichts rationetemporis - eine Illusion?, in Mélanges in honour of Anton K. Schnyder, 2018, p.275 ff; Antonio Rigozzi, Le délai d'appel devant le Tribunal arbitral du sport:quelques considérations à la lumière de la pratique récente, in Le temps et ledroit, 2008, p. 255 ff), considered that the respect of the time limit forappealing to the CAS is a condition for the admissibility of the appeal, whichdoes not concern the jurisdiction of the arbitral tribunal (4A_413/2019, supra,para. 3.3.2). Failure to comply with the time limit within which an appeal mustbe filed with the CAS does not in fact entail the lack of jurisdiction of thisarbitral tribunal, but only the inadmissibility of the appeal. Consequently,the complaint based on the failure to comply with the time limit for filing anappeal to the CAS does not fall within the scope of art. 190 para. 2 let. b ofthe PILA. The appellant cannot therefore immediately challenge the incidentalaward by which the CAS finds that an appeal was filed in due time, insofar asit does not contest either the composition of the arbitral tribunal or itsjurisdiction (art. 190 para. 3 PILA).The Court has confirmed its case law on severaloccasions since then (4A_198/2020 of December 1, 2020, para. 3.2; 4A_290/2020of August 26, 2020; 4A_287/2019, supra, para. 4.2).In a decision rendered on March 15, 2021 (4A_626/2020),the Court was called upon to rule once again on the solution adopted indecision 4A_413/2019. In this case, the appellants argued that the contributionof Stefanie Pfisterer, quoted in the judgment 4A_413/2019, only examined thequestion of the jurisdiction ratione temporis of the arbitral tribunal incommercial arbitration and not in the field of sports. As for the otherdoctrinal opinion cited in the judgment in question, they pointed out that theauthor concerned had also argued, in a later contribution, that the Court couldexamine the question of the time limit for appealing to the CAS from the pointof view of art. 190 para. 2 let. b of the PILA (Rigozzi/Hasler, in Arbitrationin Switzerland, The Practitioner’s Guide, vol. II, 2nd ed. 2018, no 26 ad art.R49 of the Code and footnote 65). They pointed out that recent doctrine hadbeen critical of the solution adopted in 4A_413/2019. The Court of Appealconsidered that the elements put forward by the appellants did not justifycalling into question the solution it had recently adopted. Although thejudgment 4A_413/2019 has given rise to some criticism in the doctrine (cf. inparticular Sebastien Besson, note on the above-mentioned judgment, in Revue del’Arbitrage 2020/3 p. 916), several authors had welcomed this new case law (cf.Marco Stacher, Jurisdiction and Admissibility under Swiss Arbitration Law - theRelevance of the Distinction and a New Hope, in Bulletin ASA 2020/1 p. 67 f.and 73; Stacher/Puschel-Arnold, BGer 4A_413/2019: Schiedsgerichtsbarkeit:Fristgerechte Klage und Postulationsfähigkeit – beschwerdefähige,Zuständigkeitsfragen? in PJA 2020/2 p. 250 f.; Mladen Stojiljkovic, SwissFederal Court addresses Jurisdiction and Admissibility in CAS Arbitration, indRSK, 17 December 2019). Considered in the light of the foregoing, andparticularly in light of the recent case law of the Federal Court, thecomplaint under review appears to be inadmissible. In this respect, theconsiderations set out in judgment 4A_626/2020 can be repeated here mutatismutandis. It should be added that the judgments cited by the appellant in whichthe Court examined certain complaints from the point of view of art. 190 para.2 let. b PILA refer to different situations, so that the appellant can draw nothingfrom them here. Further, the fact that the Court examined the question ofwhether the CAS had been seized in good time on the basis of art. 190 para. 2let. b PILA in an isolated and relatively old decision (4A_392/2008 citedabove) is not in itself decisive. Nor can the appellant be followed when hecomplains of a possible denial of justice. It should be emphasized that theappellant, even though he claims to have been brought before the competentsports court in an irregular manner, was nevertheless given the opportunity toput forward all his arguments - including those relating to the question of thetime limit for appeal - before a truly independent and impartial court, theCAS, that is to say, a specialized court with full power of examination in factand in law, and that he was then given the possibility of bringing a casebefore the Court by a legal means whose particular procedural rules, and inparticular the extremely limited grounds of appeal, are compatible with theguarantees of the ECHR (4A_248/2019, paras. 5.1 and 5.2.4-5.2.6 not publishedin ATF 147 III 49).In any event, the complaint, even ifadmissible, should be rejected in any case, as we shall see. The Court has interpreted the statutes of majorsports associations, such as UEFA and FIFA, in the same way as a law, inparticular their clauses relating to questions of jurisdiction (4A_564/2020 ofJune 7, 2021, para. 6.4; 4A_490/2017 of February 2, 2018, para. 3.3.2,4A_600/2016 of June 29, 2017, para. 3.3.4.1). It did the same to discover themeaning of rules below the level of the statutes enacted by a sportsassociation of this importance (judgment 4A_600/2016, cited above, para.3.3.4.1). In the present case, the topical provisions dealing with a questionrelating to the time limit for appealing to CAS are rules of a lower level thanthe statutes of the respondent association, i.e. the Rules, which were enactedby the umbrella organization governing swimming at world level. The appellantis therefore right to interpret them in accordance with the methods ofinterpretation of the laws. Every interpretation begins with the letter ofthe law (literal interpretation), but this is not the decisive factor: it isnecessary that the true scope of the regulation be restored, which also derivesfrom its relationship with other legal provisions and its context (systematicinterpretation), from the aim pursued, in particular the interest protected(teleological interpretation), as well as from the will of the legislator as itresults from the preparatory works (historical interpretation). The judge willdeviate from a clear legal text if the other methods of interpretationmentioned above show that this text does not correspond in all respects to thetrue meaning of the provision in question and leads to results that thelegislator cannot have intended, that offend the sense of justice or theprinciple of equal treatment. In short, the Federal Court does not favor anymethod of interpretation and does not establish a hierarchy, drawing on apragmatic pluralism to seek the true meaning of the norm (BGE 142 III 402 para.2.5.1 and references cited; 4A_600/2016, supra, para. 3.3.4.2).At this point, it is appropriate to reproducethe text of art. 13.7.1 of the Rules for a better understanding of theexplanations that follow: “13.7.1Appeals to CAS
Thedeadline to file an appeal to CAS shall be twenty-one (21) days from the dateof receipt of the decision by the appealing party. The above notwithstanding,the following shall apply in connection with appeals filed by a party entitledto appeal but which was not a party to the proceedings that led to a decisionbeing appealed:
a)Within a deadline of fifteen (15) days from receipt of the decision, theparty/ies entitled to appeal can request a copy of the complete case file fromthe body that issued the decision, including the motivation of the decisionand, if the proceedings took place in another language, a translation in one ofFINA's official languages (English or French) of the decision and of themotivation, as well as of any document which is necessary to understand thecontent of the decision.
b)If such a request is made within the fifteen-day period, then the party makingsuch request shall have twenty-one (21) days from the receipt of the full file,including translations, to file an appeal to CAS.
Theabove notwithstanding, the filing deadline for an appeal filed by WADA [RespondentFoundation] shall be the later of:
(a) Twenty-one (21) days after the last dayon which any other party in the case could have appealed, or
(b) Twenty-one (21) days after WADA's receiptof the complete file relating to the decision.
Similarly,the filing deadline for an appeal by FINA [respondent association] shall be inany event the later of:
(a) Twenty-one (21) days after the last dayon which any other party (except WADA) could have appealed before CAS; or
(b) Twenty-one (21) days from the day ofreceipt of the complete file relating to the decision.”
In the contested award (n. 184-191), the Panelconsiders, on the basis of its interpretation of the aforementioned regulatoryprovision, that the Respondent Foundation had an additional 21 days to file anappeal to the CAS compared to all other parties entitled to file an appeal tothe CAS. In reaching this conclusion, she referred in particular to the text ofArticle 13.7.1 § 2 a), according to which the Respondent Foundation has 21 daysto bring an appeal to the CAS “after the last day on which any other party inthe case could have appealed”. In her view, the expression “any other party”undoubtedly includes the respondent association. Therefore, the time limit forappeal began to run for the respondent foundation after the expiration of thetime limit within which the respondent association could have appealed thedecision of its Commission to CAS (Award, n. 188). This literal interpretationis corroborated by the systematic interpretation of the topical provision.Indeed, if the drafters of the Rules had intended to impose the same time limiton the respondent association and the respondent foundation - which, accordingto the respondent foundation, would have constituted a violation of therespondent association’s obligations to develop its rules in accordance withthe WADC - there would have been no need to separate the time limits forappeals by these two entities into two separate subsections of the samestandard (Award, n. 189). The Panel then points out that the positions of theRespondent Association and the Respondent Foundation are indeed similar withinthe meaning of Art. 13.7.1 § 3 of the Regulations (“similarly to WADA”), inthat they each have more time than the other parties to file an appeal to CAS.However, their respective situations are not identical. According to Art.13.7.1 § 3 of the Rules, the respondent association may file an appeal to CASafter the appeal deadlines applicable to the other parties have expired, to theexclusion of the respondent foundation (“except WADA”). The RespondentFoundation, on the other hand, may file an appeal with CAS after all otherparties, including the Respondent Association. What the two respondents have incommon is that they are subject to a special regime that derogates from thegeneral rule. It does not follow, however, that the two exceptions areidentical in every respect. The opposite conclusion seems to be more in linewith the text, structure and purpose of Art. 13.7.1 of the Regulations (Award,n. 190). Considered in the light of the jurisprudentialprinciples recalled above and applied by analogy in case, the solution adoptedby the Panel appears convincing. Therefore, the Court agrees with the argumentsdeveloped by the arbitrators when interpreting article 13.7.1 of theRules. The criticisms made by the appellant withregard to the reasoning of the Panel do not convince the Court. Firstly, bymerely highlighting the term “similarly” in article 13.7.1 § 3 of the Rules,the appellant fails to mention the existence of the expression “except WADA”,used in letter a) of the same provision, which invalidates the argument thatthe respondent association and the respondent foundation should benefit fromthe same time limit for appeal. Secondly, the systematic interpretationproposed under n. 112 of the appeal brief is not convincing either. It is alsoconceivable that, out of deference to the respondent foundation, whose ad hocregulations (WADC) it was responsible for adopting and implementing, therespondent association thought it more elegant to deal first with the timelimit for appeals reserved for that entity before talking about its own.The explanations concerning the alleged “willof the legislator” (appeal, n. 113) carry little weight, since they are basedon an opinion of March 22, 2019, subsequent to the filing of the statement ofappeal, in which the respondent association appears to take up the appellant’scause and clearly intends to avoid the CAS reviewing the decision in his favorrendered by its internal jurisdictional body. Moreover, the document cited isnot suitable for revealing the historical will of the “legislator,” which isthe only thing that matters in this type of interpretation, but at most the wayin which the respondent association interprets the disputed provision today.In an attempt to give substance to hisargument, the appellant further alleges that the respondent associationknowingly deviated from the rules that the respondent foundation advocates inthe WADC (see appeal, n. 114). This last argument is not serious insofar as itsuggests that the respondent association did not intend to transpose therelevant provisions of the WADC correctly into its own regulations, but this isnot proven.The appellant’s peremptory assertion that thePanel should not have taken into account the time limit for appeal available tothe Chinese Anti-Doping Agency (CHINADA) when calculating the time limit forappeal of the respondent foundation does not appear to be convincing either(appeal, n. 115).As for the alleged criticism made by theappellant, from the point of view of the right to be heard, that the Panel didnot refute, even implicitly, the arguments that he had put forward concerningthe allegedly contradictory behavior of the respondent foundation with regardto the time limit within which it had to bring the case before the CAS, thisalso appears to be irrelevant. The Panel was in fact required to examine exofficio the issues related to the admissibility of the appeal. Consequently, itis not clear how the conduct of the respondent foundation could have alteredthe interpretation of the topical provision by the arbitrators and thusaffected the outcome of the case. Moreover, as the Respondent Foundationrightly points out, the Panel referred in paragraph 160 of its Award to the argumentof allegedly contradictory conduct. It must therefore be accepted that thePanel implicitly denied the existence of an attitude incompatible with therules of good faith on the part of the Respondent Foundation.In view of the foregoing, the complaint underconsideration, if it were admissible, which is not the case, should in anyevent be rejected.In a plea that must be examined in the secondplace, the appellant argues that the failure to observe the time limit forappeal to the CAS had the effect that the decision rendered by the Commissionin his favor had come into force and therefore had the force of res judicata.Consequently, by taking up the case when the time limit for appeal had expired,the Panel would have disregarded this effect of the first instance decision, sothat its award should be annulled for contravening procedural public policywithin the meaning of article 190 para. 2 let. e PILA.Such an argument cannot succeed. At the outset,it should be noted that it is doubtful, to say the least, that the appellantcan invoke the res judicata of the first instance decision in order to refuseto follow an appeal procedure that was allegedly introduced late by the otherparty. In fact, it follows from the jurisprudential definition of res judicata(ATF 140 III 278 para. 3.3) that the application of this legal figure supposesthe existence in time of two distinct trials, with a second lis pendens, which would exclude itsimplementation in the relations existing between two jurisdictions of differentdegrees (first and second instance) in charge of the same case. However, thereis no need to examine this question further, since, according to theconsiderations set out above, to which reference may be made here, the Courtconsiders that the Panel rightly recognized that the Respondent Foundation hadbrought the case before the CAS in good time. Thirdly, the appellant, invoking art. 190 al. 2let. d PILA, complains of a series of violations of his right to be heard.The case law has deduced from the right to beheard, as guaranteed by art. 182 para. 3 and art. 190 para. 2 let. d PILA, aminimum duty for the arbitral tribunal to examine and deal with the relevantissues. This duty is violated when, through inadvertence or misunderstanding,the arbitral tribunal fails to take into consideration allegations, arguments,evidence and offers of proof presented by one of the parties and important forthe award to be made. The burden of proof is on the allegedly aggrieved partyto show, in its appeal against the award, how an oversight by the arbitratorsprevented it from being heard on an important point. It is up to the aggrievedparty to establish, on the one hand, that the arbitral tribunal did not examinecertain elements of fact, evidence or law that it had regularly put forward insupport of its conclusions and, on the other hand, that these elements were ofsuch a nature as to influence the outcome of the dispute (BGE 142 III 360,paras. 4.1.1 and 4.1.3; 4A_478/2017, supra, para. 3.2.1). If the awardcompletely ignores elements that are apparently important for the resolution ofthe dispute, it is up to the arbitrators or the respondent to justify thisomission in their observations on the appeal (BGE 133 III 235, para. 5.2;4A_618/2020 of June 2, 2021, para. 4.2; 4A_478/2017, cited above, para. 3.2.1).However, the arbitrators are not obliged to discuss all the arguments putforward by the parties, so that they cannot be reproached, as a violation ofthe right to be heard in adversarial proceedings, for not having refuted, evenimplicitly, a plea that is objectively irrelevant (ATF 133 III 235, para. 5.2;4A_692/2016 of April 20, 2017, para. 5.2). It should be recalled that the complaint basedon the violation of the right to be heard should not serve, for the partycomplaining of defects in the grounds of the award, to provoke by this means anexamination of the application of the substantive law (ATF 142 III 360, para.4.1.2).In the first part of the present plea, theAppellant complains that the Panel did not take into consideration certainelements that he had put forward concerning compliance with the time limit forappeal to the CAS. He argues that the arbitrators should have declinedjurisdiction or issued an inadmissibility decision if they had taken hisarguments into account. He also complains that the Panel ruled on theadmissibility of the appeal on February 26, 2021, without the pleadings filedwith the Court in case 4A_192/2020 being included in the case file. Finally, hecomplains that the arbitrators limited the length of the parties’ writtensubmissions to five pages in order to develop their arguments regarding theadmissibility of the appeal period. As presented, the complaint cannot succeed. Itshould be noted at the outset that, according to case law, there is no generalprinciple in international arbitration that all procedural steps should berepeated when an arbitrator has been challenged and replaced (BGE 147 III 379,para. 3.2). Art. R36 of the Code provides that, unless otherwise agreed by theparties or decided by the Panel, the proceedings shall continue withoutrepetition of the procedural steps taken prior to the arbitrator’s removal. Inthe present case, the new Panel, even though it was under no obligation to doso, offered the parties the opportunity to present their arguments once againon the admissibility of the appeal and on the substantive issues. It also helda new hearing and allowed the parties to question witnesses during the hearing.Thus, the Panel made every effort to respect the parties’ right to beheard. As the Respondent Foundation then points out,without being contradicted by the Appellant, the Panel, when it ruled on theadmissibility of the appeal on February 26, 2021, had in its possession theentire file existing before the CAS, i.e. at least the award rendered by theCAS on February 28, 2020, as well as the writings and exhibits produced in thecontext of these proceedings, as well as the judgment rendered on December 22,2020 by the Court in case 4A_318/2020. As pointed out by the RespondentFoundation, the Panel had before it, inter alia, the response memorandumproduced on August 14, 2019 by the Athlete, which already addressed the issueof the admissibility of the appeal to CAS. Attached to this document was theappeal brief to the Federal Court filed by the athlete in case 4A_187/2019,which dealt, on fourteen pages, with the admissibility of the appeal to CAS andwhich, on this point, was similar to the content of the appeal filed in case4A_192/2020. It must therefore be admitted that the Panel was aware of thearguments presented by the appellant on this point in the appeal proceedings4A_192/2020.By limiting the length of the parties’ supplementarysubmissions on the admissibility of the appeal, the Panel did not violate theappellant’s right to be heard either. In this respect, it should be noted atthe outset that the appellant did not complain about this restriction duringthe arbitration proceedings. Therefore, the appellant cannot invoke such a pleaafter the fact, without contravening the rules of good faith, since he shouldhave raised it immediately during the arbitration proceedings. In any event,the limitation of the length of the pleadings did not, in view of all the circumstances,affect the appellant’s right to be heard. Indeed, when the Panel ruled on theadmissibility of the appeal, the appellant had already put forward, on at leastthree occasions, his arguments on this point in his reply of August 14, 2019,in his appeal brief to the Court of June 11, 2019 (case 4A_287/2019) and in hissupplementary brief of February 23, 2021. The interested party had thus hadample opportunity to put forward all his arguments on this issue, without theslightest limitation.Finally, it should be noted that the appellanthas not sufficiently established how the outcome of the proceedings could havebeen different if the alleged violation of his right to be heard had notoccurred.In the second part of the appeal, the appellantsubmits that the Panel violated his right to be heard when it ruled on thequestion whether the BCA could, under Chinese law, take a blood sample in theathlete’s home town. In this regard, the athlete stated that he hadcommissioned an expert in Chinese law, Prof. Pei Yang, who confirmed in hiswritten report that the blood sample taken during the doping control wascontrary to Chinese law. During the hearing of the Panel, Prof. Pei Yangclarified that a Chinese nurse can only practice at the place where she isregistered, but not outside the hospital. He pointed out that this point hadnot been addressed in his written report because he had not been instructed tocomment specifically on this issue at the time. In addition to having wronglyattributed to him the burden of proving the illegality of the blood samplingprocess and having applied the wrong standard of proof, the appellant complainsthat the arbitrators failed to consider his argument on the grounds that it wasnot included in the report of the Chinese law expert but was only addressedduring his examination before the Panel. He claims that the Panel violated hisright to be heard by excluding, by procedural order of February 15, 2021, anynew evidence, and then reproached him for not having produced additionalevidence. The appellant states that, if he had been allowed to produce newevidence, he could, in particular, have produced an additional report by Prof. PeiYang explaining why the BCA’s PNC (Practicing Nurse Certificate) did not allowher to take blood during the disputed doping test. He further complains thatthe arbitrators completely ignored the testimony of Prof. Pei Yang during thehearing. It should be noted at the outset that, by meansof his criticism, which is very appellatory in tone, the appellant isattempting, under the guise of an alleged violation of his right to be heard,to re-discuss certain substantive issues relating to the formalities of theanti-doping test which were not dealt with as he would have wished, on thepretext that the Panel had ignored them. It goes without saying that such anapproach is inadmissible in international arbitration. When reasoning on the basis of the rules of theburden of proof, the appellant loses sight of the fact that this question isnot subject to examination by the Court, which is called upon to hear an appealin civil matters concerning an international arbitration award (4A_616/2015 ofSeptember 20, 2016, para. 4.3.1, and the references cited). Nor can theinterested party be followed when he asserts that the Panel violated his rightto be heard by holding that Prof. Pei Yang had not addressed the issue of BCA’sright to practice nursing in the geographical area where the doping test tookplace, even though the expert had produced, as an annex to his written report,an extract from the Chinese law dealing with the issue. Under n. 338 of thecontested award, the Panel stated as follows:“Morecomplicated is the Athlete's assertion that the BCA's PNC was geographicallylimited, i.e., invalid in Hangzhou, and therefore would not have sufficed as avalid professional credential even if it had been shown. This assertion is arelative latecomer to these proceedings. The Athlete's expert on Chinese law,Professor Pei Yang, acknowledged on cross-examination that he had not beenasked to address this issue, and his report does not speak to it. The onlyprovision of Chinese law annexed to his expert report which the professormentioned during his live testimony as potentially bearing on the issue merelyrequires that nurse have a PNC before "engaging[ing] in nursing at theregistered practice place. "Left unclear was the article's scope, forexample whether Chinese law considers blood collection as part of a dopingcontrol to be "engagement in nursing". The Panel was also presentedwith certain evidence as to certain exceptions to this restriction, such asemergency deployments of nurses to address public health emergencies, etc. Yetother provisions that may bear on the issue, in particular parts of the ChineseNurse Regulations, were fleetingly noted by Professor Pei Yang on directexamination but were neither included in his expert report nor otherwisesubmitted into the record.”
The above passage demonstrates that the Paneldid not ignore the annex to the expert’s report. Based on the expert’s ownstatements at the hearing, the Panel only considered that the expert did notaddress in his report the issue of the geographic limitation of the validity ofthe BCA’s PNC.The appellant is also wrong when it asserts thatthe Panel ignored the statements made by the expert at the hearing and some ofhis arguments on the grounds that they were not included in the expert’swritten report. As the above passage illustrates, the arbitrators took intoaccount the expert’s statements at the hearing in their award. On the basis ofan assessment of the available evidence, the Panel only found that theappellant’s contention that the validity of the BCA’s PNC was geographicallylimited had not been established to the satisfaction of the law. Under theguise of an alleged violation of his right to be heard, the appellant is infact attacking the assessment of the evidence, as it was made by thearbitrators. The appellant implicitly acknowledges this in paragraph 139 of hisappeal, since he states the following: “...On this basis, the Panel found thatthe Appellant had not proved that the PNC in possession of the BCA did notauthorize him to draw blood in the city of Hangzhou…”. By arguing in this way,the appellant loses sight of the fact that the assessment of the evidence thatled the Panel to draw certain conclusions in legal terms is beyond theknowledge of the Federal Supreme Court when it rules on an appeal ininternational arbitration (BGE 142 III 360, para. 4.1.1; 4A_136/2016 of 3November 2016, para. 4.2.1).The appellant also complains in vain that thePanel infringed his right to be heard by excluding, by order of February 15,2021, the production of any new evidence. The annulment of the first awardrendered on February 28, 2020 by the CAS following the dismissal of thepresident of the first panel called upon to rule in the present case did not infact require the newly appointed arbitrators to proceed with otherinvestigative measures or to authorize the production of new evidence. Therefore,the Appellant has only himself to blame for not having produced, in due time,all the evidence to support the claim that Chinese law prevented the BCA fromtaking blood in the context of a doping control outside certain geographical areas.In the third part of the plea examined, theappellant claims that the Panel ignored his argument that the handwrittendocument signed by all the protagonists at the time of the doping test had theeffect that the test had been “abandoned.”Such an accusation is untrue. In the contestedaward, the Panel reproduced the content of the said document (n. 46). The Panelfurther found that, according to the ISTI rules, the DCO was obliged to givethe appellant the opportunity to comment in writing on the course of the dopingtest. DCOs were also instructed to sign such statements from an athlete.According to the Panel, the fact that the DCO signed the handwritten note inquestion did not mean that she agreed with its content (Award, n. 352). Theargument raised in relation to an alleged abandonment of doping control wasthus not ignored by the Panel, but simply not accepted by it. This is furthercorroborated by the conclusion reached by the Panel, which cannot bechallenged, that the appellant evaded doping control by not allowing the DCO totake the blood samples that had been collected with it.In the fourth and last part of the appeal, theappellant complains that the arbitrators ignored his argument concerning thehistorical interpretation of article 5.3.3 ISTI, which was intended to showthat the presentation of a generic authorization letter was not sufficient andthat the sample collection personnel should have submitted a document to theathlete specifically indicating that they had been authorized to carry out thedisputed doping control. The Court is not convinced by such an argument.It should be noted at the outset that the Panel summarized the main argumentsdeveloped by the parties in their respective pleadings in paragraphs 136 etseq. of its award. In paragraphs 137 and 139 of its decision, it referred inparticular to the interpretation of art. 5.3.3 ISTI advocated by the appellantand the respondent association, as well as to the methods of interpretation -in particular the historical interpretation - that were supposed to supporttheir thesis. It can thus be admitted that it took into consideration, in otherwords, dealt with, the argument invoked by the appellant, and that, if it didnot expressly reject it, it did so at least implicitly. On reading the award,it must be noted that the Panel made a detailed interpretation of article 5.3.3ISTI in order to determine its true meaning. By considering that their literal,systematic and teleological interpretation of the topical norm led to one andthe same result, the arbitrators clearly rejected the thesis defended by theappellant and the historical interpretation intended to support it. In view ofthe foregoing, the claim of violation of the right to be heard must berejected.