In proceedings against an award rendered by a Court of Arbitration for Sport (CAS) arbitral tribunal seated in Lausanne, the petitioner invoked, among other grounds, Article 190(2)(c) of the Private International Law Act (PILA) as a basis for setting aside the arbitral award. This provision provides that an award can be challenged if the relevant arbitral tribunal's decision went beyond the claims submitted to it (extra petita), or failed to decide one of the elements of the claim (infra petita).

In its pleadings, the petitioner acknowledged that the Swiss Supreme Court had previously held that challenges based on infra petita will be excluded where the operative part of the award provides an all-encompassing statement that "all other claims are dismissed". However, the petitioner argued that there should be a different finding in the present case. The petitioner argued that it was clear from a reading of the award in question that the arbitral tribunal did not deal with all of the issues raised. The Swiss Supreme Court considered this argument to be irrelevant. In its decision, the Swiss Supreme Court reiterated that the infra petita ground to set aside an award is excluded where there is a catch-all dismissal of all claims not dealt with explicitly. The Swiss Supreme Court reasoned that this is because, in the context of international arbitration, there is no obligation for arbitrators to explain their decisions.

Although one could argue that a dismissal of a claim, whether formulated through language specifically tailored to that claim, or expressed as part of an all-inclusive dismissal, is nevertheless a "decision" by the arbitral tribunal in relation to that claim, this solution is questionable. If arbitrators simply insert a catch-all statement in the operative part of their award, this has the effect that a decision can be rendered without arbitrators actually considering all of the claims in dispute. Based on the reasoning of the Swiss Supreme Court, the party concerned has no means to challenge this and the protection thereby offered by Article 190(2)(c) PILA would seem to be lost in such cases. Thus, as a minimum it should be possible to conclude from the reasoning in the award that the arbitrators have at least considered each of the claims raised by the parties.

Case: 4A_635/2012.