Astute Dispute Resolution lawyer Nhu-Hoang Tran Thang will participate in a panel on “arbitration in the era of social media” at the IBA Arb40 Symposium in Singapore. She will address in particular the impact of the Swiss Federal Tribunal’s decision of late 2022 in the case (Swiss Federal Tribunal’s decision 4A_318/2020 of 22 December 2020).
In this decision, the Swiss Federal Tribunal navigated the tension between arbitrators’ freedom of expression and their duty to remain impartial in the context of social media, when Chinese Olympic swimmer Sun Yang applied for the revision of an award that had imposed an eight-year competition ban on him. The request for revision was prompted by newly discovered tweets from the arbitral tribunal’s president which contained egregious racist insults towards Chinese nationals.
Although these comments were purportedly tied to the president’s anti-animal cruelty activism, the Federal Tribunal deemed the tweets' tone, language, and timing “inadmissible,” leading to the approval of Sun Yang’s revision request. Despite the “duty of curiosity” imposed on parties to arbitration, the Federal Tribunal acknowledged that neither Sun Yang nor his counsel could have been expected to review all tweets made by the president prior to his appointment.
This decision has sparked a global discussion among arbitration professionals, raising essential questions about the level of due diligence required for arbitrators' social media activities and concerns about potential challenges based on online behaviors and connections.
The symposium promises to be an engaging forum for exploring these uncertainties and discussing potential best practices for the arbitration community.
The IBA Arb40 Symposium will be held at the Shangri-La hotel in Singapore on 22 February 2024. More information on the conference here.