NEWSLETTER-2019-metin

356 NEWSLETTER 2019 the SFT. The main reason for this is that the termination order ends the arbitration on procedural grounds, which also constitute a final and substantive decision. The SFT admitted that a decision of the CAS President, rather than an Arbitral Tribunal/Panel, can be considered to be an arbitral award when it concludes the arbitration. The WADA’s appeal was considered admissible by the SFT in this respect 6 . Right to be heard One of the main arguments in the WADA’s appeal is the alleged violation of theWADA’s right to be heard before the CAS proceedings, since the CAS did not examine an essential argument put forward by the WADA, namely, whether strict application of the relevant provi- sion was justified in light of the circumstances of the case. In its decision, the SFT clarified that the right to be heard al- lows the panel to consider the essential arguments, facts and evidence; however, it does not force the panel to take into consideration every single claim of the parties. The SFT also found that the examination of whether the President of the Appeals Division had correctly inter- preted Article R64.2 of the CAS Code falls outside of the scope of its review. The STF further noted that the termination order set out the facts upon which the President of the CAS Appeals Division based the termination, particularly the fact that the WADA was unable to rely upon its own error to explain its failure to make the payment necessary within the time limit set by the CAS. With this regard, the SFT found that before the termination order, the WADAwas completely informed by the CAS about the results of late payment, and only complained about the strict penalty. Therefore, the SFT concluded that the CAS 6 Termination of proceedings for failure to pay advance, not excessively for- malistic (Swiss Supreme Court) by Prof. Dr. Nathalie Voser (Partner) and Dr. Philip Wimalasena (Associate), https://www.swlegal.ch/media/filer_public/c7/ b1/c7b1dff1-1572-42a8-8c37-ae96bf821df4/2017_nathalie_voser__philip_wi- malasena_termination_of_proceedings_for_failure_pay_advance_not_exces- sively_formalisti.pdf (Access date: November 2019).