Publications
Global Rejection of “Fishing Expedition” Upheld
Simon Gabriel;
in: dRSK, 27.05.2021
Commentary on Swiss Federal Tribunal decision 4A_438/2020 on March 15, 2021
The Swiss Federal Tribunal confirmed that an arbitral tribunal, which had rejected several document production requests as undue «fishing expedition», did not infringe the right to be heard. The decision also touches on the question to what extent procedural decisions must be reasoned without, however, offering a final answer.
I. Background
[1] A professional football player (B) sued a professional football club (A) based on his employment contract for certain payments as a result of an alleged breach of contract. After a first decision by FIFA’s Dispute Resolution Chamber, the dispute was appealed and referred to CAS arbitration proceedings with seat in Lausanne, Switzerland (sec. A and B).
[2] During the CAS arbitration proceedings, a document production phase took place. A submitted several document production requests which also included documents in connection with B’s subsequent employers (football clubs C and D) and his agent (E):
«In relation to D.________ FC
- Employment contract (s) signed with D.________ FC in January 2018 as well as any and all annexes to said contract and/or side-agreements;
- Any and all emails exchanged between the Player, his agent and D.________ FC leading up to the conclusion of the employment contract with D.________ FC;
- Copy of any and all pre-contractual documents, offers, memorandum of understanding exchanged and/or signed with D.________ FC;
In relation to C.________:
- Employment contract (s) signed with C.________ in August 2018 as well as any and all annexes to said contract and/or side-agreements;
- Any and all emails exchanged between the Player, his agent and C.________ leading up to the conclusion of the employment contract in August 2016;
- Copy of any and all pre-contractual documents, offers, memorandum of understanding exchanged and/or signed with C.________ as of July to August 2016;
In relation to his Agent E.________
- Representation Agreement (s) signed with Mr. E.________ and any other third agent in relation to his agency activities with regards to him signing an employment contract with A.________ and/or in force during said time period.»
(Sec. 4.2)
[3] By letter dated 6 January 2020, the arbitral tribunal granted one of A’s document production requests and rejected the remaining requests with the sentence: «All other requests for production of documents are rejected». Upon inquiry of A, the arbitral tribunal confirmed on the following day that A’s remaining requests were indeed rejected (sec. 4.2).
[4] On 4 February 2020, A submitted that it «reserves all its rights in connection with the decision of the Panel notified on 6 January 2020…» (sec. B).
[5] On 14 February 2020, during the arbitral hearing, the president of the arbitral tribunal explained that the arbitral tribunal was of the view that the rejected document production requests amounted to a kind of «fishing expedition» (sec. 4.2).
[6] At the end of the hearing, both parties stated that they had no objections to the manner in which the proceedings had been conducted and that their respective right to be heard was consistently respected (sec. B).
[7] Finally, an arbitral award was rendered and A submitted a setting aside application to the Swiss Federal Tribunal on the ground of infringement of its right to be heard concerning the partial rejection of its document production requests (sec. C).
II. Decision
[8] The Swiss Federal Tribunal dismissed A’s setting aside application and upheld the award for the following reasons in particular:
[9] First, the Swiss Federal Tribunal did not accept A’s argument that its document production requests were not sufficiently considered by the arbitral tribunal.
[10] The Swiss Federal Tribunal considered that the sentence «All other requests for production of documents are rejected» clearly showed that the arbitral tribunal had not overlooked these requests, but rather decided them (sec. 4.2).
[11] Moreover, the Swiss Federal Tribunal considered that requests with the «overly broad» phrasing of «any and all» documents on certain topics without further specification of the relevance for the decision may be globally rejected as a «fishing expedition» without any further explanations (sec. 4.2).
[12] Second, the Swiss Federal Tribunal also emphasized that after the explanation of the president during the hearing, A had not further insisted on its production requests and also refrained from making an objection or a caveat for infringement of the right to be heard (sec. 4.2).
[13] For these reasons, the Swiss Federal Tribunal considered that the arbitral tribunal had not infringed A’s right to be heard.
III. Comments
[14] Three points are of particular importance for arbitration practitioners who are active in arbitral proceedings with place of arbitration in Switzerland:
[15] First, the case illustrates that arbitral tribunals in civil law jurisdictions often apply a fairly strict standard to requests for production of documents. Requests referring to «any and all documents» without detailed further specification of the relevance for the decision are often rejected as overly broad, even if the requested category of documents in principle shows a connection to the case. The Swiss Federal Tribunal expressly confirmed that such an approach does not per se infringe the parties’ right to be heard. It is thus advisable for counsel to define categories of documents sought for production in Swiss arbitration proceedings as narrowly and precisely as possible and specifically demonstrate (e.g. with reference to the merits submissions) why these documents are indeed relevant for the decision of the case.
[16] Second, Swiss lex arbitri provides for a strict onus of the parties to instantly and expressly object to procedural directions, if they consider that the arbitral tribunal thereby infringes their procedural rights (such as the right to be heard; Art. 182.4 Swiss Private International Law Act; «PILA»). In particular, the parties must not keep potential objections in reserve and only submit them in setting aside proceedings when they are not satisfied with the outcome of the proceedings on the merits.
[17] Indeed, it is not uncommon that the president of an arbitral tribunal sitting in Switzerland asks at the end of the hearing whether the parties have any objections to the manner in which the proceedings were conducted. For a party that placed objections during the proceedings it is advisable to expressly and clearly state that those objections are upheld. Otherwise, there is a considerable risk that these past objections will be considered as waived and thus cannot form the basis of a potential future setting aside application (BGer 4A_407/2012, sec. 3.2.1;AXEL BUHR, Hohe Anforderungen an mündliche Verfahrensrügen in Schiedsverhandlungen, in: dRSK, published on 19 March 2013).
[18] Third, the decision also touches on the question to what extent procedural decisions (such as the present decision on document production requests) need to be reasoned by the arbitral tribunal. It can be concluded from the considerations of the Swiss Federal Tribunal that a minimal reasoning is expected for procedural decisions (see above, para. 11). At the same time, the threshold to be met appears as fairly low as the global reference to a fishing expedition was considered as sufficient, in order to reject several document production requests.
[19] It would be informative to know whether the Swiss Federal Tribunal applies the same or a different standard to the reasoning of procedural decisions than it applies to the reasoning of arbitral awards. In the latter case, the Swiss Federal Tribunal has held in constant jurisprudence that the principle of the right to be heard in the sense of Article 190.2 lit. d PILA does not entail a right of the parties to a reasoned award in international arbitration proceedings (BGE 134 III 186, sec. 6.1). In the view of the author, the requirements for the reasoning of a procedural decision should not be stricter than for an arbitral award. Nevertheless, in view of the present case, it appears as advisable for arbitrators to give at least a brief reasoning also for procedural decisions.