Article 190(2) of the Swiss Private International Law Act (PILA) permits an arbitral award to be set aside in case of:

a)an incorrect constitution of the arbitral tribunal.

b)a wrong decision on jurisdiction.

c)a decision ultra/extra or infra petita.

d)a violation of equal treatment of the parties or of the right to be heard or

e)a violation of public policy.

The complainant, Tony Andre Hansen (Complainant), and the horse Camiro took part in the showjumping event at the Beijing 2008 Olympic Games, from 8 to 24 August 2008. The Complainant's team won the bronze medal. On 18 August 2008, following the Team Jumping Final, the horse was selected for sampling. The analysis of the horse's urine sample revealed the presence of Capsaicin, which is classified as a "Prohibited Substance" (Prohibited Substance) under the Equine Prohibited List. No request had been made for the use of Capsaicin on the horse and no medication form had been supplied for it.

On 21 August 2008, FEI informed the Complainant about the test result and about the possible violation of the relevant regulations. FEI suspended the Complainant provisionally and gave him an opportunity to be heard at the preliminary hearing before the preliminary panel of the FEI Tribunal, held on the same day. In the preliminary hearing, the Complainant offered no explanation regarding the presence of the Prohibited Substance. Thereupon, the FEI Tribunal decided to uphold the provisional suspension until the FEI Tribunal's final decision. On 21 August 2008, the Complainant also received notice that the B-Sample analysis would be carried out. He was informed of his right to attend or be represented at the identification and opening of the B-sample. The complainant indicated that he would be represented by Dr Jonas Tornell, the veterinarian of his team. According to the test report, the presence of Capsaicin was confirmed and the Complainant was informed of the test results on 27 August 2008.

On 26 September 2008, a final hearing was held at the FEI headquarters in Lausanne. For the purpose of providing additional evidence and examining additional witnesses, an additional hearing was held on 8 November 2008. On 22 December 2008, the FEI Tribunal disqualified the Complainant and the horse from the Olympic Games and withdrew all medals and prize moneys. The results of the Complainant's team were re-calculated without taking into account the Complainant's results. The Complainant was further suspended for a period of four and a half months and fined CHF 3,000.

The Complainant appealed to the CAS. On 4 December 2009, the CAS confirmed the decision of the FEI Tribunal and dismissed the Complainant's appeal.

Subsequently, the Complainant appealed against the CAS award and against the decision of the FEI Tribunal to the Federal Supreme Court. He argued that the CAS award and FEI decision should be set aside, contending (among other things) that:

The Supreme Court dismissed the appeal.

On the arguments about the decisions of Brazilian and German state courts, the Supreme Court held that other countries' procedural rules regarding the complaints which can be brought before a court are irrelevant in the case at hand. The Complainant could not, before the Supreme Court, dispute the jurisdiction of the CAS after he himself appealed the decision of the FEI Tribunal to the CAS.

In the context alleged violations of the Swiss Constitution, the ECHR and the Swiss Anti Trust Act, the Supreme Court held that international arbitral awards, including awards in sports matters, can only be attacked on the grounds set out in Article 190(2) PILA. An expansion of the Court's cognition was not possible and a violation of other procedural guarantees derived from the Constitution, the ECHR or other international agreements could not be brought before the Supreme Court with an appeal against an arbitration award.

Regarding the evidence of witness C, the Supreme Court held that for the international arbitration proceedings there exists no statutory provision obliging a tribunal to draw up a written record of his oral testimony. Such an obligation can also not be derived from the right to be heard or the procedural public policy. Therefore, the fact that C's evidence had only been tape-recorded did not violate the right to be heard (Article 190(2)(d) PILA).

As to the argument regarding the Complainant's presence during the analytical process, the Supreme Court stated that the Complainant misunderstood the meaning of the right to be heard, which was limited to guarantee that the arbitral tribunal had respected this principle. As far as it was alleged that the counter party or a third party (in this case the FEI) had not done so, such complaint was inadmissible. The Supreme Court furthermore held that the Complainant had borne the burden of proving that the test samples had been contaminated and the test results were therefore incorrect. The CAS had found that the required evidence had not been brought forward and thus concluded that, based on the results of the analyses of the samples, the horse's urine contained Capsaicin. According to the Supreme Court, the CAS's conclusion did not violate Swiss public policy (Article 190(2)(e) PILA). With his appeal, the Complainant was trying to criticise the substance of the CAS's decision – such criticism could not be brought before the Supreme Court.

This decision is another in a long line of doping cases before the CAS and the Supreme Court. It does not contain any new or noteworthy holdings. Rather it shows, once again, how carefully setting aside requests must be drafted and how high the threshold is in order for them to succeed.