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On July 28, 2015, the Swiss Federal Supreme Court had to decide a rather unusual case concerning the alleged violation of the right to be heard and arbitrary decision (decision 2C_1073/2014 of July 28, 2015).

At the annual cow fights in the canton of Valais, Switzerland, the cow “Gentiane” competed against the cow “Shakira” in the final fight. According to the rules, the cow which backs down from the fight first loses. When Gentiane wanted to start the fight, Shakira shied away, and the organizing committee, therefore, declared Gentiane to be the winner and the “Queen of Queens”. The crowd, however, disagreed with this decision and the committee’s instructions to have Gentiane tied to the railings for the victory ceremony. As a reaction to the whistles and shouting of the public, the herders standing in the arena untied Gentiane under the eyes of her owners in order to let the fight continue. Then, after a short fight, Gentiane drew back, so that Shakira was declared the winner.

Following the final, the organizing committee issued a warning to Gentiane’s owners because they had released Gentiane and had let her continue the fight, thereby disregarding the jury’s decision. Gentiane’s owners did not agree with this warning and filed a complaint with the Cantonal Commission for Agricultural Matters. After the Cantonal Commission had confirmed the warning, the owners took the case to the Swiss Federal Supreme Court and alleged that their right to be heard had been violated and that the decision was arbitrary.

The fight had been recorded on a video, on which the Cantonal Commission had relied when rejecting the complaint of the owners. The owners argued that they had not been given an opportunity to review and comment on the video and that this would constitute a violation of their right to be heard. However, the Swiss Federal Supreme Court rejected this argument on the ground that the description of facts given by the Cantonal Commission in its decision were in line with the facts that could be seen on the video: it was clear that the owners under the pressure of the public had, while not being actively involved in the unbinding of Gentiane, also not objected to it. The refusal of the Cantonal Commission not to involve the owners in the review of the video was, therefore, not in violation of their right to be heard.

But the Swiss Federal Supreme Court accepted the second argument of the owners according to which the decision of the Cantonal Commission was arbitrary. The herders, who had unbound Gentiane, are appointed by, and take orders from, the jury, and they must thus be considered as agents or organs of the organizing committee. As a result, the herders’ actions had to be attributed to the organizing committee, rather than to the owners of the cows. As the owners of Gentiane had remained passive, one could not reasonably accuse them of having disregarded the orders of the jury. Hence, there was also no reason for a disciplinary warning by the organizing committee, and the decision of the Commission for Agricultural Matters was, therefore, arbitrary.


Dr. Urs Zenhäusern is a Partner in the Dispute Resolution team at Baker McKenzie in Zurich. He practices mainly in the areas international arbitration and litigation. He advises clients on antitrust law and sports law, as well as legal matters related to unfair competition and distribution, agency and licensing contracts. He is a frequent writer and speaker at seminars on litigation and arbitration law, as well as intellectual property law topics. He has also been appointed as lecturer at the University of Fribourg and the Swiss Federal Institute of Technology in Zurich, and for the MBA Post-Graduate Program at the University of St. Gallen. Dr. Urs Zenhäusern can be reached at [email protected] and + 41 44 384 1243.


Karin Scharding is a member of the Dispute Resolution Team at Baker & McKenzie in Zurich. Karin Scharding can be reached at [email protected] and +41 44 384 12 55.