The relationship between international arbitration, human rights and pluralism remains, to this day, controversial and only partially unresolved. Arbitration is traditionally conceived as a mechanism grounded in party autonomy and consent, aimed at ensuring the swift and effective resolution of disputes. Human rights, by contrast, even when invoked in contentious proceedings, display an inherent public-law dimension, as they protect interests that transcend the purely individual sphere. The so-called “Semenya saga” offers, from this perspective, a particularly significant illustration of the tensions that may arise between these two domains.

The central figure in the case is Caster Semenya, a South African Olympic athlete born with a variation in sex characteristics resulting in naturally higher testosterone levels than the average female athlete. The international athletics federation, World Athletics, adopted regulations conditioning eligibility for women’s competitions on compliance with a specified testosterone threshold and, where that threshold was exceeded, requiring its reduction through hormonal treatment.

Considering this regulatory framework detrimental to her rights, Semenya initiated proceedings before the Court of Arbitration for Sport (CAS), seeking a declaration that the obligation to undergo hormonal treatment as a condition for continued participation in competitions was unlawful. In its 2019 award, the CAS dismissed her claim, holding that the regulation was justified by the need to ensure fairness in women’s competitions.

The award was subsequently challenged before the Swiss Federal Tribunal, the court of the State of the seat of the arbitral tribunal. As is well known, judicial review of international arbitral awards is confined to the grounds for setting aside provided under domestic law and is characterized by a restrictive approach. In the present case, Semenya argued that the award was contrary to Swiss public policy as well as to her fundamental human rights. The Swiss Federal Tribunal nevertheless dismissed the challenge, finding that the requirements for annulment were not satisfied.

Having exhausted domestic remedies, the dispute was brought before the European Court of Human Rights (“ECtHR”). In its 2023 judgment, the Court found a violation of Article 14 ECHR (prohibition of discrimination), taken in conjunction with Article 8 ECHR (right to respect for private life), as well as of Articles 6 and 13 ECHR in relation to the right to a fair trial. In particular, the Court emphasized that in cases involving discrimination based on sex or sex characteristics, States enjoy a particularly narrow margin of appreciation and that the Swiss authorities had failed to ensure an effective and adequate judicial review of the applicant’s complaints.

Following this first judgment, Switzerland requested that the case be referred to the Grand Chamber of the ECtHR. This possibility is provided for under Article 43 ECHR in exceptional circumstances. In its referral request, Switzerland sought reconsideration of the 2023 judgment insofar as the Court had held that the Swiss judicial authorities, in refusing to set aside the CAS award, had violated the right to a fair trial.

In its judgment of 10 July 2025, the Grand Chamber confirmed, in its essential aspects, the violations previously identified. The Court observed that within the international sports system, recourse to arbitration before the CAS is, in practice, mandatory: an athlete wishing to participate in competitions governed by federation rules has no real alternative to the arbitration clause. In such a context, judicial review by the national court of a potential annulment of the award cannot be limited to a merely formal and restrictive assessment of compatibility with public policy, but must entail an effective examination of complaints grounded in Convention rights. The limited scope of review exercised by the Swiss Federal Tribunal was therefore found to be incompatible with the guarantees of Article 6 ECHR.

The Semenya case thus highlights, in emblematic terms, the tension between the consensual logic of arbitration and the need to ensure full and effective protection of fundamental rights, particularly in contexts where contractual autonomy is structurally constrained.

(Foucs by Pietro Campana)

 

Selected bibliography:

 

L. Hinz,The ECtHR's Final Ruling in Semenya v Switzerland: A Missed Opportunity to Uphold Human Rights in Sports?, European Papers, 2025.

 

F. Toral and T. Schulz,The State, a Perpetual Respondent in Investment Arbitration? Some Unorthodox Considerations, in M. Waibel, A. Kaushal, K. L. Chung and C. Balchin (eds.),The Backlash Against Investment Arbitration: Perceptions and Reality, Kluwer Law International, 2010.

 

A. Kumar, G. Mourya, P. Mishra, P. Agewal,The Intersection of Human Rights and Mandatory Arbitration: An Overview, in Social Sciences & Humanities Open, 2026.

 

J. Cooper, Intervention: Semenya v Switzerland (European Court of Human Rights, Grand Chamber), No. 10934/21, July 10, 2025, in Entertainment and Sports Law Journal, 2025.

 

A.K. Bjorklund, The Emerging Civilization of Investment Arbitration, in Penn State Law Review, 2008.

 

S. Bastianon, Judicial Scrutiny in Sports Arbitration: Lessons from Semenya (ECtHR) and Seraing (CJEU), in Football Legal, 2025.

 

S. Bastianon, The Semenya v. Switzerland and ECtHR Grand Chamber Judgment: Jurisdiction, Procedural Rights and Sports Arbitration, in Rivista di diritto ed economia dello sport, 2025.

 

A. Duval, Righting the Lex Sportiva: The Semenya v Switzerland Case and the Human Rights Accountability of Transnational Private Governance, in European Convention on Human Rights Law Review, 2025.

 

 

Related case law:

 

Semenya v. Switzerland, No. 10934/21, ECtHR (Third Section), 11 July 2023.

 

Semenya v. Switzerland, No. 10934/21, ECtHR (Grand Chamber), 10 July 2025.