Article 190(2)(d) of the Swiss Private International Law Act (PILA) safeguards the parties' right to be heard.

In 2006, the Jamaican Football Federation (JFF) employed the petitioner (X) as technical director and head coach of the Jamaican national football team. In November 2007, the JFF terminated his four year employment agreement, asserting that X had breached his contractual duties.

On 28 February 2008, X filed a claim for damages with the FIFA Players' Status Committee (FPSC). On 10 February 2010, the FPSC awarded USD 1 million in damages to X for wrongful termination of the employment agreement.

On 28 April 2010, the JFF lodged an appeal against the FPSC decision with the CAS in Lausanne. After a hearing in November 2010, the CAS partially overturned the decision of the FPSC, reducing the awarded damages and dismissing X's counterclaim.

Subsequently, X brought a petition to set aside the CAS award before the Swiss Supreme Court, claiming that the CAS had violated his right to be heard and the principle of equal treatment of the parties.

The Supreme Court rejected the petition to set aside the award.

Referring to its established case law, the court held that the right to be heard does not convey a right to a reasoned award. Therefore, the court rejected X's argument that his right to be heard had been violated because the CAS failed to sufficiently address his arguments in its reasoning. Rather, the court found that the award rendered by the CAS satisfied X's right to be heard as it addressed the issues that were relevant for the tribunal's decision.

The Supreme Court also rejected a further challenge based on the right to be heard, relating to the arbitral tribunal's dismissal of X's request to hold a second hearing to hear Y (the former president of the JFF), as an additional witness. The court held that a party is only entitled to the taking of evidence if its request to take evidence is submitted in a timely and formally valid manner. The court therefore concluded that the CAS had not violated X's right to be heard as, pursuant to the applicable procedural rules, his request to hear a new witness was late.

Finally, the court also adhered to its practice of dismissing a party's application for security for costs if the application is submitted at a time when the costs have already been incurred.

This decision, although not new in its content, sets clear procedural limits to the right to be heard and reminds legal counsel that requests to take evidence can be validly dismissed if they are not submitted in accordance with the timetable and procedural rules applicable to the specific proceedings. The case serves as a further reminder of the Supreme Court's established practice of dismissing applications for security for costs if they are submitted only with the answer to the petition, since at that point in time, the costs have already been incurred. Thus, a defendant in setting aside proceedings must ask for security for costs at the very beginning of the proceedings.

4A_162/2011.