Costs and fees of an appeal that became moot after admission of a revision request for a recusal ground discovered late in a CAS award

Facts

The appellant, Sun Yang, filed a civil law appeal on 28 April 2020 against the arbitral award rendered on 28 February 2020 by the Court of Arbitration for Sport (CAS, case CAS/2019/A/6148) in an international sports arbitration.

The respondents are the World Anti-Doping Agency (WADA, the respondent foundation) and the International Swimming Federation (FINA, the respondent association). The respondent foundation requested dismissal of the appeal to the extent it was admissible, while the respondent association left the matter to the court's discretion. The CAS proposed dismissal of the appeal.

On 15 June 2020, the appellant filed a request for revision of the award. On 12 June 2020, the President of the First Civil Law Court noted that the appellant had voluntarily paid CHF 30'000 (less CHF 12 in fees) to the Federal Supreme Court cash office, as security for the costs requested by the respondent foundation on 26 May 2020.

By judgment of 22 December 2020 (case 4A_318/2020), the Federal Supreme Court admitted the revision request, annulled the arbitral award of 28 February 2020 and granted the recusal request against the president of the arbitral tribunal. The recusal ground had been discovered by the appellant on 15 May 2020 at the earliest, that is after the expiry of the time limit for appeal.

By presidential order of 23 December 2020, the parties were invited to state their position on the allocation of costs and fees of the appeal proceedings. The appellant requested that the judicial costs be borne by the respondent foundation and claimed compensation of CHF 30'000 as legal fees. The respondent foundation requested that costs and fees be borne by the appellant.

As the appeal had become moot, the only remaining issue concerns the allocation of costs and fees.

Considerations

Under art. 32 para. 2 FSCA, the instructing judge decides as sole judge on the removal from the docket of proceedings that have become moot. The appeal has become moot since the challenged award has been annulled; the case must therefore be removed from the docket.

For the allocation of costs in proceedings that have become moot, art. 72 FCPA applies by analogy (cf. art. 71 FSCA). The court rules by a summarily reasoned decision, taking into account the state of affairs existing before the event that ended the dispute. It relies primarily on the probable outcome of the proceedings, based on a summary review of the file, without issuing a judgment on the merits. Where such a prognosis is not possible, general principles generally lead to costs being borne by the party that caused the proceedings or that is responsible for the grounds that rendered them moot. The judge has broad discretion.

In this case, the Federal Supreme Court cannot prejudge the outcome of the dispute, as the CAS must render a new award. There is therefore no need to forecast the chances of success of the appeal.

The proceedings became moot due to the admission of the revision request based on a recusal ground discovered after the expiry of the time limit for appeal. Neither the appellant, nor the respondent association, nor the respondent foundation is responsible for this ground. According to general principles, however, the costs must be borne by the appellant, as the party that caused the proceedings that…