In proceedings against an award rendered by a sole arbitrator of the Basketball Arbitral Tribunal (BAT), the Supreme Court found that it had jurisdiction over a petition for setting aside, despite the fact that neither of the parties had made use of their right to request the reasons underlying the arbitral award. However, the Supreme Court did point out that, although the petition for setting aside was admissible, the petitioner's chances of success in the setting aside proceedings were considerably reduced.

The petitioner had invoked a violation of the right to equal treatment and of the right to be heard because the sole arbitrator had not taken into account her statement of reply. Referring to its previous case-law, the Supreme Court confirmed that the petitioner's right to be heard would evidently be violated if the arbitral tribunal had not taken into account one of her submissions. However, the petitioner had failed to protest when informed that the BAT had not received any statement of reply from her at all.

On a minor point which was found to be admissible, the Supreme Court confirmed that a violation of article 6 of the European Convention for Human Rights (ECHR) does not, of itself, constitute a ground for setting aside the arbitral award.

This is the first time that the Swiss Supreme Court has confirmed its jurisdiction over a petition for setting aside an unreasoned award. As this ruling concerned the admissibility phase of the proceedings, the Supreme Court examined this question ex officio, despite the fact that the issue does not appear to have been addressed by the parties. The decision is in line with prevailing doctrine. It is nevertheless a welcome clarification, because it draws a clear distinction from the rules governing proceedings before state courts in Switzerland, where the waiver of the right to a reasoned decision also entails a waiver of the right to appeal.

As the Supreme Court pointed out, the chances of succeeding in setting aside proceedings against an unreasoned award are significantly reduced. It is important to draw the parties' attention to this point when deciding whether or not to request a reasoned award (if the applicable rules give the parties such a choice in the first place), especially in cases such as this one, where the inclusion of reasons entails additional costs.

Case: 4A_198/2012.