Articles 190(2)(a) to (e) of the Swiss Private International Law Act (PILA) set out the grounds on which an international arbitration award may be set aside. Those grounds include:

Ms Claudia Pechstein is a German speed skater and considered as one of the most successful athletes of all time. In February 2009, she participated in the International Skating Union's (ISU) World Speed Skating Championships in Hamar, Norway. Following blood samples taken from Ms Pechstein which showed abnormalities, the ISU found that she had violated its anti-doping regulations and imposed a two-year ban on her.

Ms Pechstein lodged an appeal against this decision with the Court of Arbitration for Sport (CAS) in Lausanne. In November 2009, the CAS dismissed Ms Pechstein's appeal, holding that "illicit manipulations of her own blood" remained the "only reasonable alternative source of such abnormal values" found in Ms Pechstein's blood samples.

In December 2009, Ms Pechstein brought a petition to set aside the CAS award before the Federal Tribunal, relying on a variety of grounds. She also requested that the Federal Tribunal hear the petition on an urgent basis and filed for a number of preliminary measures.

The Federal Tribunal held that many of the grounds invoked by Ms Pechstein were either beyond the scope of its judicial review in such cases or not sufficiently substantiated in the petition. To the extent that the Federal Tribunal did consider the merits of the case, it dismissed the petition.

Procedural aspects: The Federal Tribunal took into account the urgency invoked by Ms Pechstein by essentially deciding the case on an ex parte basis, not inviting the ISU to comment on Ms Pechstein's petition.

Factual basis: The Federal Tribunal in principle refused to consider the account of facts set forth by Ms Pechstein in her petition, which differed from the factual basis upon which the CAS had relied for its award. As the Federal Tribunal held, it will only exceptionally review the factual basis of an award. Such exceptions may be granted if a petitioner raises valid challenges in the sense of Article 190(2) PILA against the factual basis of an award. Furthermore, the petitioner must demonstrate that one of these very few exceptions applies.

The Federal Tribunal also refused to consider new facts and evidence that Ms Pechstein had not submitted before the CAS (such as a new expert report allegedly explaining the blood anomalies), holding that pursuant to the applicable Article 99 (1) of the Federal Tribunal Act, new allegations and evidence could only be considered if they had been prompted by the award (which was not the case).

Violation of constitutional and human rights: The Federal Tribunal also refused to consider Ms Pechstein arguments alleging violations of her rights under the Swiss Federal Constitution, the European Convention of Human Rights (ECHR) and further human rights treaties. The Federal Tribunal explained that the only valid challenges that can be invoked in this context are stipulated in Article 190(2) PILA. It explicitly rejected Ms Pechstein's attempt to rely for her challenges on Article 29a of the Swiss Federal Constitution, which provides that each person is entitled to a judicial review of their legal disputes.

Independence and impartiality: The Federal Tribunal also refused to consider Ms Pechstein's complaints regarding alleged lack of independence and impartiality of the CAS or the arbitrators. Ms Pechstein had been aware of the basis for her complaints in this regard during the proceedings before the CAS, and she should have raised her complaints at that time according to the principle of good faith. She had not done so and could not now raise them before the Federal Tribunal. Nevertheless, the Federal Tribunal emphasised that, according to its own case law, the CAS was in fact sufficiently independent from the IOC.

Public hearing before the CAS: not required by law, but "desirable": The Federal Tribunal rejected Ms Pechstein's argument that she had a right to a public hearing before the CAS. It held that the rights contained in the Swiss Federal Constitution, the ECHR and a UN treaty do not apply in arbitral proceedings. While explicitly denying a legal right to a public hearing in arbitration, the Federal Tribunal stressed the importance of the CAS in sport matters and of the public confidence in its impartiality and fairness, and stated that it would be "desirable" if the CAS allowed public hearings if requested by the athlete concerned.

Right to be heard and unsolicited submissions: The Federal Tribunal also rejected Ms Pechstein's allegations that her right to be heard had been violated by the CAS's refusal to comprehensively consider a submission made by Ms Pechstein after written briefs had already been exchanged. More specifically, Ms Pechstein had wished to comment in writing on the ISU's brief. This request was rejected by the CAS, on the basis that the applicable procedural rules did not provide for a second exchange of briefs. However, the CAS had exceptionally granted Ms Pechstein the right to "present any new evidence deriving from medical investigations performed on her, with comments thereto" until eight days before the hearing before the CAS. Subsequently, Ms Pechstein filed a submission against which the ISU objected, claiming that it covered mainly issues outside the scope granted by the CAS. The ISU's objection was upheld by the CAS, which would only consider exhibits filed with Ms Pechstein's submission that fell actually within the scope of its concession to Ms Pechstein, and disregarded the rest of her submission.

The Federal Tribunal held that, as in state courts proceedings, parties to arbitral proceedings are not entitled to submit new allegations and evidence without limitation. Rather, the procedural rules can validly limit the admissibility of submissions by the parties. As Ms Pechstein had not demonstrated that her full submission was valid under the procedural rules, the Federal Tribunal held that it could not see how her right to be heard had been violated. Also, the Federal Tribunal pointed out that subsequently, an oral hearing had taken place before the CAS, and that Ms Pechstein had not demonstrated that she had been barred from making such comments during this oral hearing.

Contradictory reasoning is no valid ground for public policy challenge: The Federal Tribunal did not consider Ms Pechstein's argument that the CAS' reasoning in the award was contradictory and that the award thus violated public policy. The Federal Tribunal held that contradictory reasoning does not constitute a valid ground for a public policy challenge, confirming its most recent case law in this respect (and retreating from some of its earlier precedents).

From a procedural point of view, the Federal Tribunal's efficiency in dealing with the petition is remarkable. The Federal Tribunal succeeded in rendering its decision on 10 February 2010, just two months after the petition was filed, and two days before the start of the 2010 Winter Olympics in Vancouver. This is even more remarkable considering that the Federal Tribunal issued several decisions on Ms Pechstein's applications for preliminary measures while her petition was pending. However, as regards the Federal Tribunal's decision not to invite the ISU to comment on Ms Pechstein's petition in order to speed up the proceedings, it should be noted that this appears only admissible in a case where the petition is going to be fully rejected. In other cases, this course of action would appear to conflict with the counterparty's right to be heard, and more specifically, with Article 102(1) of the Federal Tribunal Act, according to which the Federal Tribunal – if and as far as necessary – has to invite the counterparty to comment on the petition.

Furthermore, the Federal Tribunal's judgment in the "Pechstein" case confirms its strict approach to petitions to set aside: