Although Chapter 12 of the Swiss Private International Law Act (PILA) does not contain any express provisions regarding the revision of arbitral awards, it is established that the provisions of the Swiss Supreme Court Act (FSCA), on the revision of decisions of the Supreme Court, apply by analogy to international arbitral awards rendered in Switzerland.

Article 123(2) FSCA permits an application for revision, when the party seeking revision has discovered new facts or new evidence that existed at the time the award was rendered, and which if known by the arbitral tribunal at the time would be likely to have had an impact on the outcome of the proceedings.

Pursuant to Article 124(1)(d) FSCA, the application for revision of an arbitral award must be filed within 90 days of the discovery of the ground for revision.

In 2007, a football player was transferred to Club W against the payment of EUR 400,000 to Club V. When Club Y learned of the transfer of the player, it claimed compensation from Club W for the eight years that the player had been trained by Club Y. The dispute was brought before the FIFA Dispute Resolution Chamber (DRC) and subsequently to the CAS.

On 6 May 2010, the CAS sole arbitrator rendered a final award, ordering Club W to pay compensation of EUR 480,000 to Club Y.

On 4 April 2011, Club W brought an application for revision of the CAS final award based on the ground that new evidence had emerged, which proved that the player had not been trained for eight years by Club Y.

The Supreme Court rejected the application.

With regard to new facts, the 90 day time limit for filing a revision application provided for in Article 124(1)(d) FSCA, begins when the applicant has gained sufficient knowledge of such new facts to decide whether to file a petition for revision. The Supreme Court noted that the application was based on a new material fact and not, contrary to the applicant's argument, on new evidence. Therefore, the 90 day deadline started to run from when the applicant had sufficient knowledge of the new fact, notwithstanding that at the time of the application, the applicant may not be in a position to prove the relevant facts with conclusive evidence. In this case, the application for revision was inadmissible, since the application had been filed more than one month after the 90 day deadline expired.

More specifically, the court reasoned that Club W was, for the first time, alleging that the player was not trained for eight years by Club Y. The application was therefore based on a new fact. According to the court, the evidence attached to the application was only aimed at proving that new fact. Furthermore, the court found that Club W had gained sufficient knowledge of the ground for revision on 23 November 2010 at the latest, which meant that the 90 day deadline had expired by the time that the application was brought on 4 April 2011.

Finally, in somewhat unconvincing, subsidiary reasoning, the court observed that Club W lacked any actual interest, since Club Y was the only one entitled to claim the eight year compensation because of an alleged assignment of claim to the benefit of Club Y.

This is the first time that the Supreme Court has rejected an application for revision of an arbitral award because the 90 day deadline had lapsed. This case underlines the importance for the applicant of distinguishing between new facts and new evidence. If the argument is raised for the first time in the application for revision, it relates to a new fact and not to new evidence. In such case, the deadline starts running as soon as the applicant obtains sufficient knowledge of that fact, irrespective of the applicant's capacity to prove the new fact at that time.

4A_222/2011.