In a recent decision of the Swiss Federal Tribunal (TF 4A_254/2023 of 12 June 2023), which will be published shortly, the judges were asked to rule on the misadventure of a party who had used the electronic platform of the Court of Arbitration for Sport (CAS) to upload its statement of appeal and exhibits.
Due to alleged technical difficulties, the briefs were sent by e-mail but not uploaded to the CAS electronic platform. The party only realised its mistake after the appeal deadline had passed. CAS then issued a closure order for the late filing of the appeal.
In their ruling, the federal judges considered that it was not overly formalistic to declare the appeal inadmissible despite the fact that technical problems had allegedly prevented the submission of the briefs on the CAS online platform, bearing in mind that the technical failures had not been proven. Strict compliance with the rules regarding the time limit for filing appeals is essential for reasons of equal treatment and legal certainty. Moreover, the respondents are entitled to expect the CAS to apply and comply with the provisions of its own rules.
The appellant also complained that the CAS had not acted in good faith and that the contested decision was therefore contrary to substantial public policy. The Swiss Federal Tribunal held that the CAS had not breached the rules of good faith, without questioning the fact that such a breach, if proven, would be likely to be contrary to substantial public policy.
The lesson to be learned from this ruling is that it is the party's responsibility, if it chooses to use the CAS electronic platform, to ensure that the submissions and exhibits are actually uploaded, either by emailing the CAS or by logging back on to the platform after filing to check that the documents have actually been transmitted. The CAS cannot be lax in respecting deadlines without running the risk of undermining the principle of equal treatment of the parties. Finally, any procedural bad faith on the part of the CAS may be qualified as a violation of substantive public policy.