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Arbitral tribunal's admission of unlawfully obtained evidence did not violate procedural public policy

28 May 2014

Authors: Nathalie Voser, Benjamin Moss

In two almost identical German-language decisions dated 27 March 2014, the Swiss Supreme Court rejected separate applications, one bya professional footballer and the other by a director of sport at a Ukrainian football club, to set aside an award issued by the Court of Arbitration for Sport, on grounds that it had violated public policy.

In particular, it found that the arbitral tribunal, in relying on an unlawfully obtained video recording that turned out to be decisive in the case,did not breach a fundamental principle of Swiss procedural law. Arbitral tribunals, like domestic courts, are entitled to undertake a case-specific assessment of whether illegally obtained evidence should be admitted or not. The Supreme Court also found that the 5 year professional bans that had been imposed on the player and sports director for match fixing did not unjustifiably breach these individuals'personal freedom. (Decisions 4A_362/2013 and 4A_448/2013.)

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Elliott Geisinger
Elliott Geisinger

Nathalie Voser
Nathalie Voser

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