This case attracted considerable media attention as it involved the German speed skate champion Claudia Pechstein. Blood samples taken from Pechstein on the day of the 2009 speed skating world championship in Hamar, Norway, showed a reticulocyte level of 3.49%. Reticulocytes reflect the production level of red blood cells, and the international skating union considers levels of between 0.4% and 2.4% normal. Blood samples taken two weeks after the Hamar event showed Pechstein's reticulocyte level at 1.37%. Based on these measurements and comparable fluctuations in blood samples taken since October 2007, the international speed skating initiated disciplinary proceedings. On 1 July 2009, the disciplinary commission found that Pechstein had committed blood doping and issued a two-year competitive ban.

Pechstein appealed this decision to a tribunal of the Court of Arbitration for Sports (CAS). Following a first exchange of written briefs, Pechstein requested leave to file a reply. While the CAS tribunal denied her request, it permitted Pechstein to file new evidence based on medical research up to eight days before the hearing scheduled for 22 and 23 October 2009. Before the CAS tribunal, Pechstein argued that her irregular reticulocyte levels were caused not by blood doping but by a hereditary disease. By decision dated 25 November 2009, the CAS tribunal upheld the disciplinary commission's decision. Shortly after her setting aside petition before the Swiss Federal Supreme Court was denied, on 4 March 2010 (see Legal update, Swiss Federal Tribunal's reasoning in the "Pechstein" case confirms its strict approach to petitions to set aside arbitral awards), Pechstein filed an application for revision based on Article 123(2) FSFT.

Pechstein alleged that two days after the CAS tribunal's decision, she learned of a recently developed scientific method for diagnosing blood anaemia. A study conducted in December 2009 on Pechstein and her family's blood samples using this new method diagnosed a hereditary blood anaemia called spherocytosism, which could be associated with significantly elevated reticulocyte levels. After Pechstein subsequently published the results of her blood samples taken in Hamar on her website, she was contacted by numerous scientific experts who confirmed this diagnosis. Pechstein submitted several new expert reports drafted between February and March 2010.

The Federal Supreme Court rejected the application.

It first questioned whether the 2010 expert reports would be admissible to support an application for revision of the 25 November 2009 award under the plain terms of Article 123(2) FSFT excluding "evidence that only came into existence after the decision" (echte Noven).

However, the Court decided that it did not have to decide this question because the application failed on other grounds. In particular, Pechstein had already submitted medical expert reports before the disciplinary commission and the CAS tribunal. She had been given the opportunity to submit new evidence up to eight days before the October 2009 hearing. Her argument in both previous proceedings that she suffered from spherocytosism had been rejected.

The Federal Supreme Court pointed out that "revision is an extraordinary legal remedy and is not intended to continue a prior proceeding." It would be reluctant to find that a party "was not able to invoke" facts and evidence in the prior proceeding, especially if the apparently newly discovered evidence was submitted to prove allegations that the arbitral tribunal had rejected based on an elaborate evidentiary proceeding that included numerous experts. The Federal Supreme Court reiterated that the petitioner had to demonstrate that it was unable to proffer the new means of evidence in the prior proceeding despite exercising due diligence.

Here, Pechstein merely alleged that Dr. Lutz, the German national speed skating federation's medical officer, advised her of the new diagnostic methods two days after the CAS award. Dr. Lutz in turn had learned of the method "by colleagues". These allegations were not specific enough, and, given the alleged timing, were not plausible. The Supreme Court reasoned that it was not acceptable to rely on recognised scientific methods in an arbitral proceeding, and, following receipt of an adverse award, to commence a revision proceeding based on unpublished and little-tested methods. Pechstein failed to show that she made appropriate efforts to determine the existence of these methods during the arbitral proceedings. Likewise, nothing prevented her from making available the Hamar blood results to other scientific experts or to publish them on her web page earlier.

Finally, the Supreme Court determined that the new evidence would likely not satisfy the requirement of Article 123(2) FSFT that it be "decisive." Here, the CAS tribunal had considered and rejected Pechstein's argument that hereditary spherocytosism – even assuming Pechstein could prove that she suffered from it – could have caused the fluctuating reticulocyte levels. In that sense, the new expert reports would go to an assessment of the evidence already considered by the arbitral tribunal, and Pechstein failed to show how the new method would allow new conclusions based on the specific reticulocyte measurements on which her ban was based. Revision was not available merely based on an improper assessment of the evidence in the prior proceeding.

In two CAS awards dated April and May 2006, the petitioner, a professional cyclist, was convicted of doping in Spain and in Canada. In the first CAS proceeding (first CAS case), the petitioner was banned for two years and in the second proceeding (second CAS case) he was banned for life. The petitioner filed an application for revision claiming that after receiving the results of his A-laboratory test in the first CAS case, he had requested the B-laboratory test but had only received the 2-page counter analysis. The petitioner did not receive the full report until January 2010. The report, comprising over 80 pages, showed that in violation of the applicable rules of the international standard for laboratories, the A- and B-tests had been in part conducted by the same employee. The petitioner argued that this violation should have resulted in a dismissal of in the first CAS case, which in turn would have resulted in a milder two-year sanction, rather than a lifetime ban, in the second CAS case.

The Federal Supreme Court rejected the application.

It first questioned whether the petitioner had a legally protected interest, because the two-year ban from the first CAS case had already expired. With respect to the petitioner's argument that a dismissal of the ban issued in the first CAS case would have resulted in a lesser ban in the second CAS case, the Court noted that in a revision proceeding, it does not itself decide the matter on the merits but only reverses and remands to the lower instance. The petitioner failed to explain how a basis for revision with respect to the first CAS case constituted a basis for revision for the second CAS case, but the Supreme Court did not decide this issue as the petition failed on other grounds.

In particular, the petitioner alleged that he requested the B-report at the arbitral hearing, thus admitting that he had been aware of the existence of such a report. As the petitioner was in possession of the full A-report, he also knew that the full report contained the name of the involved laboratory workers. The petitioner thus could have sought to demonstrate a violation of the international standard for laboratories rules in the arbitral proceeding. The petitioner failed to show what efforts he had made to obtain a copy of the full B-report. In particular, alleging that the CAS tribunal ignored his oral request at the hearing and had "probably not even mentioned it in the case file" was not sufficient to demonstrate that petitioner had exhausted his legal remedies to secure the release of the report.

Both decisions confirm the Swiss Supreme Court's demonstrated reluctance to grant petitions for revision of international arbitral awards based on the ground that decisive evidence could not be invoked in the arbitration. They further highlight the need for parties and their counsel to exercise "evidentiary due diligence" during the arbitral proceeding. The Supreme Court put it very clearly: revision is an extraordinary remedy whose purpose is not to simply continue the proceedings. This means, as demonstrated in the Pechstein decision, that parties must pursue and submit all available evidence, including expert evidence that has become available recently and that may not yet be established.

As demonstrated in 4A_237/2010, exercising evidentiary due diligence also means that parties should exhaust all legal remedies to secure any evidence that may be relevant to their legal arguments. As the case showed, if a party has knowledge of an important document, a request for production of such document might not be sufficient but must be vigorously pursued and, if the arbitral tribunal chooses to ignore it, the award might even have to be challenged in setting aside proceedings in order to preserve the later possession of the document as a reason for revision.