In X v. Y, 4A_524/2009 (5 March 2010), the Federal Tribunal ruled on a petition to set aside a decision by a tribunal at the Court of Arbitration for Sport. One of the issues for review was the allocation of costs. Apparently deciding this issue of the case on the basis of ex aequo et bono (what is fair and equitable), the arbitral tribunal had held that each party would bear its respective costs, and that the costs of the arbitration would be divided equally among the parties. The petitioner claimed that this allocation of costs violated substantive public policy, in particular because it had succeeded on the merits on an important issue in dispute.

The Federal Tribunal rejected the petition. It reasoned that in theory, it was not inconceivable that a decision on costs by an arbitral tribunal might be contrary to substantive public policy. However, the Federal Tribunal would approach the issue of costs in international arbitration with "the greatest reservation", especially where, as in the present case, the arbitral tribunal had decided on an ex aequo et bono basis.

This decision clarifies that although a costs decision may involve principles of substantive public policy, the Federal Tribunal will adopt a very restrictive approach to this issue.

In X v. Y, 4A_584/2009 (18 March 2010), the Federal Tribunal ruled on a petition to set aside a partial award on the merits rendered by an ICC arbitral tribunal by a majority of 2-1, with one dissenting arbitrator. The arbitral tribunal had issued a partial award on the merits and had reserved the issues of quantum and costs for later decisions.

The Federal Tribunal reaffirmed its jurisprudence that petitions to set aside partial awards stricto sensu (just like final awards) can be brought based on any of the grounds contained in Article 190(2) of the Private International Law Act. In fact, a petition to set aside a partial award stricto sensu must be filed immediately, or the right to do so will be waived.

The petitioner raised a violation of its right to be heard, arguing that the arbitral tribunal ignored what the petitioner claimed was a key factual element in its claim that the counterparty to a joint venture contract had failed to conduct price negotiations in good faith.

The Federal Tribunal rejected this argument. It emphasised that the arbitral tribunal in "over 60 pages" recited and analysed the conclusions, argument and allegations of fact and law presented by each party, and that the arbitral tribunal stated that it had taken all of them into consideration. Apparently, the arbitral tribunal had come to the opposite conclusion of the petitioner on what constituted the starting point for the price negotiations between the parties.

The Federal Tribunal held that disagreement with the outcome of the arbitral tribunal's analysis or with its evidentiary assessment could not be enough to make out a right-to-be-heard claim. Nor could the petitioner benefit from the co-arbitrator's dissent. The Federal Tribunal emphasised that "a dissenting opinion remains an independent opinion, foreign to the award, which affects neither the considerations or the holding."

In any event, the arbitral tribunal held that its decision would have been the same even if the parties' earlier contract had constituted the starting point for the price negotiations as alleged by petitioner. Under these circumstances, it could not be claimed that the arbitral tribunal had not fulfilled its duty to examine and deal with the key issues.