Article 190(2)(b) of the Swiss Private International Law Act (PILA) provides that an award shall be set aside if the parties' right to be heard has been violated.

Pursuant to Article 190(2)(e) PILA, an arbitral award may be set aside if it is incompatible with public policy.

On 1 June 1999, Italian football club, X, and Honduran football club, Y, entered into an agreement for the transfer of Honduran football player, D. The agreement provided that, if D were transferred in future to a third club, X would pay royalties to Y if the revenue from the transfer was higher than the sum of US$2,200,000 received by Y. On 26 June 2007, X entered into a contract with Italian club, L, agreeing to transfer D for payment of US$7,000,000.

Subsequently, Y raised a claim for payment of royalties of at least US$2,514,723 against X, which X disputed. X argued that the contract document of 1 June 1999 was forged. Both the sole judge of the FIFA players' status committee and a tribunal at the Court of Arbitration for Sport (CAS) ordered X to pay the requested amount.

X challenged this award before the Swiss Supreme Court arguing, among other things, that its right to be heard and the procedural ordre public had been violated, because the CAS had failed to take into consideration one of the witness statements submitted by X.

The Swiss Supreme Court dismissed the petition to set aside the award.

Contrary to X's allegations, the CAS had, in fact, taken the witness statement at issue into consideration. Recalling its established case law, the Swiss Supreme Court nonetheless reiterated that an arbitral tribunal may rely exclusively on the evidence it considers relevant and suitable to establish the facts of the case, and that it can, therefore, forgo the taking of evidence if the evidence offered is unsuitable or relates to facts which are not relevant for the case at hand.

The Supreme Court also confirmed that an arbitral tribunal may abstain from considering additional evidence if it concludes (based on an anticipated assessment of the additional evidence (antizipierte Beweiswürdingung)) that the findings made on the basis of the evidence taken so far could not be affected by the additional evidence offered by the parties.

Even though there was no need to address the issue as the witness statement in question had been considered by the CAS, the Supreme Court took the opportunity to emphasise that a tribunal has the right to abstain from considering evidence that it considers irrelevant or unsuitable and to apply the antizipierte Beweiswürdigung, in the same way as state courts.

While not new in content, the case therefore serves to support arbitrators in their efforts to conduct efficient proceedings, as it highlights that a tribunal must only hear witnesses if they are able to provide suitable and relevant evidence and if such evidence would affect the tribunal's findings. This should be kept in mind by arbitrators who regularly accept all witness testimony offered by the parties for fear that the concerned party would appeal the award if witness testimony were to be rejected.