These three judgments analyzed the reasons of inadmissibility from the procedural point of view, and there was no accusation of recklessness in the appeal. The first appeal lost its meaning because the arbitrator Michael Beloff voluntarily withdrew from the arbitral tribunal. The misreading of the judgment as appeal has no meaning originated from the wrong understanding of device of purpose. The correct interpretation should be the cause of appeal no longer exists; the second and third appeals were not accepted. The reason given by the Swiss high court was without object. The correct interpretation was There is no admissible cause of appeal.
Zhao Kuo: thats ridiculous. The Supreme Court of Switzerland does not depend on the attitude of judges, but has special legal provisions: in principle, the losing party shall bear the court costs and the other partys responding costs (Article 66, paragraph 1, Article 68, paragraph 2 and Article 71 of the Swiss Federal Court Regulations, Article 72 of the Swiss federal civil procedure, etc.). In addition, the judgment of the three interlocutory appeals clearly cited the relevant laws as the criteria for their distribution of expenses. It can be seen that there is a law to follow in the allocation of expenses, which has nothing to do with likes and dislikes.
Reporter: you have spent a lot of time studying Sun Yangs case. According to your analysis, what is the probability of accepting the appeal?
Zhao Kuo: Ill leave no room - Sun Yangs appeal will be accepted 100%.
Zhao Kuo: the logic of the Swiss high courts review of case acceptance is like carrying things in a pocket. There are five big pockets in the final appeal: (I) the composition of the arbitral tribunal; (II) jurisdiction; (III) omission of arbitration; (I V) violation of the principle of reciprocity or the right of action; and (V) violation of public policy; the appeal is basically to the relevant pocket. As long as any cause of action matches its pocket, the Supreme Court of Switzerland has to accept the case; in other words, there is only one case of inadmissibility - the Supreme Court of Switzerland can empty all pockets. The difficulty of the appeal lies in that although the legal interpretation and application of CAS arbitration are reversed and unreasonable, the problems related to the case entity cannot be put into any pocket, because the Swiss high court only deals with the errors in the arbitration procedure. Fortunately, CAS arbitration courts appearance is too ugly, leaving too many flaws. Sun Yangs team can chime, cymbal and cymbal into No. 4 pocket of destroying the principle of reciprocity or infringing the right of action:
The international standards for testing and investigation issued by the International Anti Doping Agency (WADA) clearly stipulates that blood test procedures must comply with local laws, regulations and industry norms (Annex E, Article 4.1 of the international standards for testing and investigation). Therefore, Professor Pei Yang, an expert witness of Sun Yangs side, put forward the guidance of nurse practice in different places, which is the core issue to confirm whether Sun Yang is anti drug. No matter whether the nurses practice in another place is illegal or not, the arbitration tribunal will
This must be discussed, otherwise it will constitute a procedural error of omission of relevant evidence. According to the jurisprudence of the Swiss high court, the arbitration result must be revoked. CASs ruling did not discuss the practice of nurses in different places, so it was a procedural error of violating Sun Yangs right of action.
(2) Serious mistranslation of testimony results in infringement of litigation right:
Translation is a big problem in Sun Yangs case. Regardless of the ability of the translator hired by Sun Yang Fang at the beginning of the hearing, the translation of other witnesses of Sun Yang Fang was completed by a substitute translator appointed by CAS arbitration tribunal, and this MS Cui is the Department Manager of Wada. This is in violation of CASs own requirement that translation be independent and not in the interest of all parties. In addition, a careful study of the hearing video shows that at least 20% of Ms. Cuis translations are erroneous; in particular, the questions of multiple mistranslation lawyers mislead or directly mistranslate the responses of witnesses. This seriously distorts the testimony of Sun Yangs witnesses, and it is also a procedural error of infringing the right of action. On the issue of translation, it is necessary to cite specific examples of mistranslation and its adverse effects on the testimony of witnesses. If necessary, I will give details in another article.
It only requires a prima facie to put the complaint in the pocket; in other words, as long as there is no sheeps head to sell dog meat, it can stay in the pocket smoothly. Even if CAS can squeeze out some defense reasons, it can only be used in the trial stage after the case is accepted.
But will the Swiss high court, like CAS, bend the law and favor Wada? Although the cultural hostility caused by the new crown epidemic is inevitable, I dont think it will affect the acceptance of Sun Yangs appeal. First, in the west, the social status of judges is far higher than that of lawyers. Therefore, the judges of the Swiss high court should cherish their feathers more than the CAS Arbitration Court (after all, the work of arbitrators is temporary part-time, and the judges have their own professional reputation).
Second, in view of the increasing attention paid by the European Court of human rights to procedural justice in recent years, judges of the Swiss high court will choose a trial stage with more room for operation, rather than an acceptance stage with a very low fault tolerance rate, even if they want to play tricks.
Similarly, Darren Kane, executive chairman of finas Legal Committee, wrote in the Sydney Morning Herald a week ago that Sun Yangs appeal would be accepted. Mr. Kane, who has never participated in Sun Yangs case or attended the hearing, thinks that it is not easy for him to win the appeal without considering the specific case and only from the surface analysis of legal provisions. In this regard, I will further communicate with him, sort out the case and share ideas.
Source: beiqing.com - editor in charge of Beijing Youth Daily: Lu Ting, ns5242