Swiss Supreme Court Research Articles

Creating equality through differentiation in doping control

Awareness of human rights and related principles, such as equality and non-discrimination, is growing in sports. While debates on doping regulation typically target the contours of the prohibition and the sanctioning regime, much less attention has been given to how anti-doping detection impacts the level playing field, i.e. whether equality is realised in the manner in which the substances and methods are detected in athletes’ samples, or whether athletes are all equal when it comes to the analytical cut-offs that the regulations set. This article seeks to fill this gap and explores the implications of differentiation—or non-differentiation—in anti-doping detection for principles of equality and non-discrimination. After discussing notions related to equality in anti-doping detection, the article presents case studies from current anti-doping analytics, to make differentiation in that context tangible. Based on case law of the European Court of Human Rights, the Swiss Supreme Court and the Court of Arbitration for Sport, we submit that anti-doping authorities should resort to an operational ‘discrimination test’ when drafting technical regulation for anti-doping, in order to incorporate these principles ‘by design’ into the detection system. The article also demonstrates that—apparently—technical rules are not value-neutral, but that scientific data and policy choices are entwined in a way that warrants debate on the political scene, and creates duties of transparency and justification on part of the decision-makers.

Swiss estates and (offshore) trusts: information gathering—recent Swiss case law

Abstract Trustees, foundations, banks, asset managers or tax advisors are often confronted with information requests from heirs of a Swiss estate. In this article, the author provides an overview of the heirs’ rights to information under Swiss contract law and Swiss succession law. She then focuses on a recent decision of the Swiss Federal Supreme Court (case 5A_30/2020), which addresses a claim for information by an executor against a financial institution in possession of trust information. The Swiss Supreme Court clarified in this decision on which basis an heir or an executor of a Swiss estate may lodge an information claim against a Swiss bank with regard to trust accounts or similar financial institutions holding financial information, of which the deceased was not the legal owner but only the beneficial owner.

Rewriting Investors’ Claim Labelled in USD in Near Worthless Syrian Pounds not Extra Petita or Violation of Public Policy. Swiss Supreme Court Decision 4A_516/2020 of 8 April 2021

Rewriting Investors’ Claim Labelled in USD in Near Worthless Syrian Pounds not Extra Petita or Violation of Public Policy. Swiss Supreme Court Decision 4A_516/2020 of 8 April 2021

Irreconcilable perspectives like in an Escher’s drawing? Extension of an arbitration agreement to a non-signatory state and attribution of state entities’ conduct: privity of contract in Swiss and investment arbitral tribunals’ case law

Abstract A matter of perspective? When a dispute arises and on the government’s side a non-signatory to the arbitration agreement or investment treaty adopted the contested action, privity of contract and rules of attribution of conduct may apply. Both have been interpreted in different manners. When one put all these interpretations together, the result is a picture of impossible spaces and irreconcilable scenarios like in a drawing of Escher. If Escher expressed his artistic inspiration by challenging gravity and visual logic, practitioners may nowadays find challenging solving the dilemma of when and how an arbitration agreement can be extended to a non-signatory state or the conduct of a state entity be attributed to the state. In its recent decision 4 A_636/2018, the Swiss Supreme Court confirmed its case law that exceptions to the doctrine of privity of contract exist under Swiss law, but these are limited in number and scope. The same applies regardless of whether private or public entities are concerned. This article will examine decision 4 A_636/2018 in light of Swiss case law and draw a comparison with investment arbitral tribunals’ jurisprudence applying rules of attribution of conduct of customary international law when privity of contract lacks on the government’s side.

Fact or Fiction? How to Deal with Allegations of Simulation Case Note on Swiss Supreme Court Decision of 1 October 2018, 4A_550/2017

Fact or Fiction? How to Deal with Allegations of Simulation Case Note on Swiss Supreme Court Decision of 1 October 2018, 4A_550/2017

36-Months follow-up assessment after cessation and resuming of enzyme replacement therapy in late onset Pompe disease: data from the Swiss Pompe Registry.

Although not curative, enzyme replacement therapy (ERT) with recombinant human acid alpha-glucosidase enzyme has shown to be effective in the treatment of late-onset Pompe disease (LOPD). For this potentially life-long treatment, little is known on the clinical effect of cessation and resuming ERT. Due to a Swiss supreme court decision on ERT reimbursement, a temporary stop of ERT occurred in our study population. The aim of this study was to report the 36-months follow-up assessments after resuming ERT. After resuming ERT, seven patients suffering from genetically and enzymatically confirmed LOPD had periodic, mandatory, prospective assessments of pulmonary function tests, muscle strength summary scores, distances walked in timed walking tests, and patient-reported questionnaires. Data were statistically analyzed for significant differences between time points at ERT cessation, at ERT resuming, and 36 months thereafter. After resuming ERT forced vital capacity (p = 0.007) and distance walked in the 6min walk test (6-MWT, p = 0.011) significantly increased at 36 months. Compared to before ERT cessation, distance walked in 6-MWT at 36 months still remained significantly lower (p = 0.005). Self-reported scores in the fatigue severity scale significantly declined at 36 months after resuming ERT (p = 0.019). No other functional or reported parameter significantly changed at 36 months after resuming ERT. Our data suggests that long-term interruption of ERT in LOPD may lead to deterioration of clinical meaningful parameters and quality of life. In addition, a clinical restoration after ERT cessation is possible for most of the LOPD patients within a 36 months follow-up.

The Swiss Constitution and a weak-form unconstitutional amendment doctrine?

Direct democracy is a long-standing feature of the Swiss constitutional system, but it is increasingly being deployed in ways that threaten basic commitments to constitutional democracy in Switzerland. This article considers possible constitutional responses to this problem, and in particular whether there is scope for an unconstitutional amendment doctrine (UCA) to constrain the scope of popular initiatives in Switzerland. It suggests limited legal and political-cultural support for a substantive or “strong” UCA in Switzerland, given the tradition of relatively narrow and weak judicial review by the Swiss Supreme Court. At the same time, it argues for the plausibility of a weaker, more procedural version of the UCA doctrine, whereby the Court suspends the effect of a proposed initiative, and gives Parliament the final word on whether to give it affect via subsequent implementing legislation. While closely related to existing, procedural versions of the UCA doctrine, this version of the UCA doctrine is distinctive in its combination of judicial suspension and legislative implementation of a proposed amendment, or its connection to theories of weak form review. It also has an important connection to current European human rights law-based constraints on amendment in Switzerland: it draws on European and global standards as a basis for determining what constitutes a democratic minimum core in Switzerland, and further reinforces the status of those standards as an unamendable feature of the current Swiss constitutional order.

Decision 4A_386/2015 (ATF 142 III 521) Swiss Supreme Court, 1st Civil Law Chamber

Decision 4A_386/2015 (ATF 142 III 521) Swiss Supreme Court, 1st Civil Law Chamber

Consequences Of A Failure To Comply With Compulsory Pre-Arbitral Steps Note on the Swiss Supreme Court’s Decision 4A_628/2015 of 16 March 2016 (ATF 142 III 246)

Consequences Of A Failure To Comply With Compulsory Pre-Arbitral Steps <i>Note on the Swiss Supreme Court’s Decision 4A_628/2015 of 16 March 2016 (ATF 142 III 246)</i>

Swiss Supreme Court to rule on Saint-Gobain bid for control of Sika in October

Swiss Supreme Court to rule on Saint-Gobain bid for control of Sika in October

Swiss Supreme Court Confirms Form-over-Substance Approach in Stamp Duty Matters

Swiss Supreme Court Confirms Form-over-Substance Approach in Stamp Duty Matters

The Swiss Constitution and a Weak-Form Unconstitutional Amendment Doctrine?

Direct democracy is a longstanding feature of the Swiss constitutional system, but is increasingly being deployed in ways that threaten basic commitments to constitutional democracy in Switzerland. This article considers possible constitutional responses to this problem, and in particular whether there is scope for an ‘unconstitutional amendment doctrine’ (UCA) to constrain the scope of popular initiatives in Switzerland. It suggests limited legal and political-cultural support for a substantive or ‘strong’ UCA in Switzerland, given the tradition of relatively narrow and weak judicial review by the Swiss Supreme Court. At the same time, it argues for the plausibility of a weaker, more procedural version of the UCA doctrine, whereby the Court suspends the effect of a proposed initiative, and gives Parliament the final word on whether to give it affect via subsequent implementing legislation. While closely related to existing, procedural versions of the UCA doctrine, this version of the UCA doctrine is distinctive in its combination of judicial suspension and legislative implementation of a proposed amendment, or its connection to theories of weak form review. It also has an important connection to current European human rights law-based constraints on amendment in Switzerland: it draws on European and global standards as a basis for determining what constitutes to democratic minimum core in Switzerland, and further reinforces the status of those standards as an unamendable feature of the current Swiss constitutional order.

Enforcement of Arbitral Awards under the New York Convention in Switzerland – An overview of the current practice and case law of the Swiss Supreme Court

This article presents an overview of the current practice and case law of the Swiss Supreme Court in relation to the implementation of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. More specifically, this article examines the decisions rendered by the Swiss Supreme Court over the period 2000-2016. Decisions are discussed in relation to the relevant provision of the Convention on an article-by-article basis. For each provision of the Convention, a short commentary is included highlighting the relevant requirements and thresholds that need to be met in light of the recent case law of the Swiss Supreme Court in order for a party to obtain or to successfully resist the recognition and enforcement of a foreign award in Switzerland. The decisions of the Swiss Supreme Court rendered during the period under review are of particular interest as the Supreme Court has examined several Convention provisions for the first time, whilst confirming, clarifying and even overturning its earlier case law. These decisions confirm that Swiss courts continue to take a liberal, pragmatic and pro-enforcement approach to the New York Convention in practice.

Sovereign bond market reactions to no-bailout clauses and fiscal rules – The Swiss experience

We analyse the effects of a credible no-bailout policy and stringent sub-national fiscal rules on the risk premia of Swiss sub-national government bonds in the period from 1981 to 2007. In July 2003, the Swiss Supreme Court decided that the canton of Valais is not liable for municipal debt. This landmark decision reduced cantonal risk premia by about 26 basis points and cut the link between cantonal risk premia and the financial situation of the municipalities that existed before. The result demonstrates that a not fully credible no-bailout commitment can entail high costs for the potential guarantor. Additionally, strong and credible balanced budget rules reduce risk premia.

Beneficial Ownership: Concept, History and Perspective

This article traces the evolution of the beneficial ownership concept, both internationally and within the European Union, in the context of two decisions of the Swiss Supreme Court handed down in May 2015, wherein it was held that two Danish banks, involved in derivative transactions, should be denied a withholding tax refund, as they are not the beneficial owners.

How Much Assistance Is Permissible? A Note on the Swiss Supreme Court’s Decision on Arbitral Secretaries and Consultants

This case note discusses the Swiss Supreme Court’s May 2015 decision on the use of arbitral secretaries and legal consultants. It places the ruling in the context of the current international debate about arbitral secretaries, spurred by the Yukos appeal, the Young ICCA and other surveys, and institutional guidelines and notes, focusing on the central issues of appointment, payment, and scope of duties. It concludes that while the decision has certain shortcomings, it represents a milestone and an appropriate, endorsement of the use of arbitral secretaries in arbitration.

Tax Litigation before the Swiss Supreme Court

The author, in this article, describes the organization and functioning of the Schweizerisches Bundesgericht/Tribunal fédéral suisse (Swiss Federal Supreme Court) and considers its significance with regard to the Swiss Constitution and Swiss tax law.

The Code of Arbitration for Sport, Commentary, Cases, and Materials,by Despina Mavromati and Matthieu Reeb

The Code of Arbitration for Sport, Commentary, Cases, and Materials, by Despina Mavromati and Matthieu Reeb, Wolters Kluwer, 2015 (708 pp). The appearance of this detailed Commentary on the rules and practices of the Court of Arbitration for Sport (CAS) is a further demonstration that the CAS is now a major arbitral institution, both in size and sophistication. Until fairly recently the CAS—to the extent it was known or discussed by the wider arbitration community—was considered an obscure and closed domain for ‘sports lawyers’. Many factors have and still are coming together to change that perception: significant opening up and reform of the CAS Rules and its ‘closed’ list of arbitrators, the number of CAS awards that have gone before the Swiss Supreme Court ( ‘ Tribunal federal ’ ), the high profile of some of the CAS cases, and, last but not least, the huge growth in the number of CAS arbitrations. Indeed many readers unfamiliar with the CAS might be surprised to learn that, with some 400 cases per year, it is by far the biggest arbitral institution in Switzerland, and should now be considered an important international arbitral institution in its own right. There is, of course, nothing unusual about book-length commentaries on arbitration rules. Craig, Park, and Paulsson’s commentary on the ICC Rules and practices is in its third edition; and there are at least four other commentaries on the ICC Rules, including the recent ‘Secretariat’s Guide to ICC Arbitration’.1 Other, more regional, rules have also been the subject of commentaries: a Swiss Rules of International Arbitration commentary is into a successful second edition,2 an LCIA Rules commentary and a handbook on the VIAC Rules3 have recently been published. This CAS Commentary is similar inasmuch as it contains a rule-by-rule explanation and analysis, but it is more than that. First, the authors—Matthieu Reeb and Despina Mavromati—are, respectively, the long-time CAS Secretary General and the Head of … nicolas.ulmer{at}budin.ch

The Limits of Arbitrators' Powers to Adjudicate Fees and Expenses: Commentary on the Swiss Supreme Court Decision 136 III 597 of 10 November 2010

In decision 136 III 597 the Swiss Supreme Court decided that arbitrators cannot force the parties to pay the advance on costs or compel them to pay their fees by issuing an award against the parties. Since no one may be judge in their own cause, the arbitrators’ adjudicational powers are limited to deciding disputes that arise out of the contract containing the arbitration agreement and do not extend to disputes which arise out of the arbitrators’ agreement (receptum arbitri) between parties and arbitrators. Thus, the cost decision in an award binds the parties as to the allocation of those costs between parties; but not as to the amount of fees demanded by the arbitrators. The indication of the amount of the arbitrators’fees in the operative part of the award is nothing more than the arbitrators’ invoice of their fees and expenses, which must be adjudicated by the ordinary courts if those fees or expenses are contested by one or both parties.

The Swiss Supreme Court’s thoughtful decision regarding insurance of expensive medications for rare diseases

The Swiss Supreme Court’s thoughtful decision regarding insurance of expensive medications for rare diseases