In a domestic arbitration, Article 396(1)(a) of the Swiss Code of Civil Procedure (SCCP) permits a petition for revision of domestic arbitral awards when "the applicant has subsequent knowledge of important facts or discovers decisive evidence that it was not able to invoke in the arbitration, excluding facts and evidence that only came into existence after the decision."

This provision is identical to the provision which applies to the revision of international arbitration awards (Article 123(2)(a) of the Federal Statute on the Swiss Supreme Court).

The Supreme Court examined the requirements for granting revision of an arbitral award in Article 396(1)(a) SCCP. It confirmed that:

In this case, the petitioner introduced a new expert report which challenged the conclusions of the reports submitted in the arbitration. Given the wording of Article 396(1)(a) SCCP, it is doubtful whether any expert report established after the award was rendered could be admitted in support of a request for revision, as the provision excludes "evidence which was established after the decision".

The Supreme Court referred in this regard to the hotly debated issue of whether an expert report which makes use of scientific methods discovered or developed after the award was rendered is admissible as "newly discovered" evidence justifying a revision. This question was at the centre of the much-publicised Pechstein case, in which the ice-skater Claudia Pechstein requested the revision of an award of the Court of Arbitration for Sport confirming a doping-related competition ban. She produced a medical report based on a new scientific method which allegedly showed that the results of her doping test could be explained by a genetic condition. At the time, the Supreme Court left open the issue of whether such a report could be admitted as "newly discovered" evidence (see Case 4A_144/2010, discussed in Legal update, Swiss Supreme Court rejects two petitions for revision).

In a decision of 10 February 2011, the Supreme Court seemed to have clarified the issue. It held that only evidence which actually existed at the time of the award, but was discovered subsequently, could serve as evidence in support of a request for revision. A witness statement which was made after the award was therefore considered inadmissible (see Case 4A_212/2010, discussed in Legal update, Supreme Court clarifies concept of "new" evidence as ground for revision of arbitral awards).

In the present decision, the Supreme Court examined but, as in the Pechstein case, ultimately left open the issue of whether or not an expert report made after the award should, per se, be excluded as a basis for revision of the award. Referring to its case law on the revision of state court decisions, the Supreme Court held that, in any event, a new expert report such as the one submitted by the petitioner, which merely provides a different interpretation of facts known at the time of the decision, cannot justify a revision of such decision. The request for revision was dismissed on those grounds.