The case involved a complicated dispute between the partners of a private bank a plan to carry out a complex set of agreements. This triggered the first arbitration, held in Geneva on the basis of the applicable arbitration clause. In July 2009, a new arbitration was initiated. As you will see from the statement of facts in the opinion, the Claimants were essentially requesting that the Respondent bring certain shares into a company, as this was a necessary requirement of the implementation of the previous agreement, at least in their view.
A three member Arbitral tribunal was constituted in Geneva with Alexis Mourre as Chairman and Henry Peter and this writer, Charles Poncet, as arbitrators. On December 10, 2010, the arbitral tribunal found that it had jurisdiction as to the company into which the shares were to be brought and ordered the Respondent in the arbitration proceedings to do so.
Under Swiss law, a party can cause another party to perform in favor of a third party. This contractual pattern is known as stipulation pour autrui in the Swiss Code of obligations and constitutes in fact a contract in favor of a third person (see section B of the opinion to see a summary of the way the Arbitrators put it).
The issue in this case was whether or not the third party is bound by or entitled to rely on the arbitration clause. The Federal Tribunal set forth its previous approach to similar issues (see section 2.4.1 of the opinion in the respect) and found in favour of the Respondents in this respect (see section 2.4.2 of the opinion).
This case concerns a long standing dispute between the members of X.________ family, which has been active in private banking and asset management in Switzerland and abroad, particularly in France, for several generations. It originates in the unsuccessful attempt by B.X.________ and his two sons A.X.________ and C.X.________ (hereafter collectively the B.X.________ branch) to exclude D.X.________, B.X.________’s brother, from Bank W.X.________ and Cie (hereafter: the Bank).
After that attempt failed the members of the X.________ family entered into discussions with a view to organizing a friendly separation of the interests of the respective branches of the two brothers, B.X.________ and D.X.________. Besides the aforesaid Bank and the group of companies affiliated to it, they also controlled the Dutch company R.________ NV (hereafter: R.________), which owned the entirety of the capital of V.X.________ BV (hereafter: VX.________). The latter company, also governed by Dutch law, had a majority participation in Z.X.________, a company under French law, which itself owned an important part of the capital of Y.________ company, a French financial company listed on the stock exchange.
The contemplated separation would take place in two steps: the first, which was carried out, was the acquisition by B.X.________ and his two sons of D.X.________’s shares in the Bank and the other companies of the group. The second, so far unfinished, anticipated that D.X.________ would be bought out from R.________ by the repurchase of his shares in the various companies of the group, against payment of a certain amount of money and delivery of the Y.________ shares belonging to Z.X.________. The fulfillment of that second step required that the money and the Y.________ shares held by Z.X.________ should be assigned to V.X.________. For that purpose, Z.X.________ had to reduce its capital by acquiring its own shares from V.X.________ (to annul them eventually) against payment of a certain amount and delivery of the Y.________ shares. As to the separation of the D.X.________ branch from the B.X.________ branch, it was to take place through an increase of capital of V.X.________. B.X.________, C.X.________ and A.X.________ would subscribe the new V.X.________ shares by assigning their Z.X.________ shares to V.X.________, A.X.________ having to deliver Z.X.________ 70,187 shares in exchange for the V.X.________ shares. Once this was done, D.X.________ would sell his R.________ shares to V.X.________ and receive the Y.________ shares and the cash acquired by V.X.________ in the interim.
In order to formalize the project, D.X.________, B.X.________, A.X.________ and C.X.________ (hereafter collectively the X.________ partners) entered into a Protocol and a specific reiterative Agreement on November 23, 2007, (hereafter designated globally as the Agreements). They attached a number of spreadsheets to the first of these two documents spelling out the fourteen steps to be taken in order to allow D.X.________ to leave the R.________ group (Step Plan). These two Agreements, governed by Swiss law, contain an arbitration clause of similar contents, entrusting a three-member arbitral tribunal, sitting in Geneva, with deciding all disputes arising from them according to the applicable rules of the Geneva Chamber of Industry and Services (GCIS).
The numerous steps purporting to enable D.X.________ to leave the R.________ group were carried out in part. The necessary permits from the competent French administrative bodies, required as a consequence of Y.________’s legal status, were applied for and issued; the reduction of the Z.X.________ capital was approved and so was the increase of the capital of V.X.________.
On May 5, 2009, the partners of the Bank decided to put an end to A.X.________’s management position and to exclude him from the company. A dispute arose as a consequence and an arbitral tribunal found against A.X.________.
Since his exclusion from the Bank, A.X.________ stopped collaborating on the implementation of the two aforesaid Agreements. He refused to subscribe to the increase of capital of V.X.________ and to bring his 70,187 shares of Z.X.________ to that company. Instead, he expressed a wish to participate in the reduction of the capital of Z.X.________ by assigning the aforesaid shares to the latter against payment of a certain amount, which was not consistent with his undertaking in this respect. Moreover, A.X.________ initiated legal proceedings in the Netherlands, which paralyzed the implementation of the alternate solution devised to substitute for his refusal to collaborate (transfer by V.X.________ to R.________ of the Y.________ shares and of an amount in cash as dividends, then purchase by R.________ of his own shares held by D.X.________ against payment in cash and assignment of part of the Y.________ shares). Finally, in a letter of December 8, 2009, he invalidated the entirety of the Agreements entered into in 2006 and 2007, claiming material error, the rules of good faith, and the theory of unforeseeable consequences; he eventually pointed out that the latter also meant that the aforesaid Agreements were terminated for breach.
D.X.________ is still to receive the amount of EUR 1,448,513,70 and the Y.________ shares to which it is entitled, namely 183,796 shares. These shares are mainly held by V.X.________ presently.
On July 17, 2009, B.X.________, D.X.________ and C.X.________ as well as V.X.________ filed a request for arbitration against A.X.________ with the GCIS. They essentially submitted that he should be ordered to bring the 70,187 Z.X.________ shares he possesses into V.X.________ within 45 days from the award, to cease any action purporting to block the implementation of the Agreements, and to pay damages.
A.X.________ submitted that the arbitral tribunal should decline jurisdiction over V.X.________, find that the company has no standing to sue and hold that the Agreements were terminated ex nunc, consequently finding that he is no longer bound by his obligation to bring the Z.X.________ shares he owns into V.X.________, and finally, to reject all submissions by B.X.________, D.X.________ and C.X.________.
A three-member arbitral tribunal was constituted under the aegis of the GCIS. In a final award in French of December 10, 2010, the arbitral tribunal found that it had jurisdiction as to V.X.________, that A.X.________ was bound by the Agreements and was not entitled to terminate them unilaterally, ordered him to bring the 70,187 Z.X.________ shares to V.X.________ within 45 days after the award, issued a decision on the costs of the arbitration, and rejected all other submissions by the Parties.
As to the issue of jurisdiction towards V.X.________ and that company’s standing to act, the arbitral tribunal recalled the principles of case law applicable in this respect and found that A.X.________, with the latter being aware of it, had irrevocably undertaken to participate in the increase of capital of the company by delivering his Z.X.________ shares to V.X.________ for that purpose. As the addressee and the beneficiary of that commitment V.X.________ accordingly sought its implementation. In law, the arbitrators held that the aforesaid commitment was a contract in favor of a third person within the meaning of Art. 112 (2) CO,2 adding that A.X.________ had specifically conceded in one of his pleadings that the agreement contained such a contract in favor of a third person. Accordingly, in their view, V.X.________ had its own right to obtain performance of what he had promised in its favor. It was accordingly entitled to rely on the arbitration clause in the Agreements. The arbitral tribunal adds that its jurisdiction as to V.X.________ is even more certain because the aforesaid company, which recognizes and claims that jurisdiction, participates in the implementation of the Agreements in several respects (although it is not a signatory of them), a circumstance indicating the common intent of the Parties to see V.X.________ bound by the arbitration agreement.
On January 21, 2011, A.X.________ filed a civil law appeal with the Federal Tribunal relying on Art. 190 (2) (b), (d) and (e) PILA,3 with a view to obtaining the annulment of the aforesaid award and a finding that the arbitral proceedings which led to the award are themselves annulled.
In their answer of February 25, 2011, the Respondents submitted that the appeal should be rejected and cast doubt as to the capability of the matter to be appealed.
The request for a stay of enforcement contained in the appeal was granted by decision of the presiding judge of February 24, 2011.
In the field of international arbitration a civil law appeal is possible against the decisions of arbitral tribunals under the conditions set forth by Art. 190 to 192 PILA (Art. 77 (1) LTF).4 The seat of the arbitration was in Geneva. At least one of the parties (in this case V.X.________) did not have its domicile in Switzerland at the decisive time. The provisions of chapter 12 PILA are accordingly applicable in principle (Art. 176 (1) PILA).
Insofar as the appeal was filed in the legally prescribed format (Art. 42 (1) LTF) and in a timely manner (Art. 100 (1) LTF in connection with Art. 46 (1) (c) LTF) as legally required against a final award, the appeal is based exclusively on the grounds stated at Art. 190 (2) PILA and is accordingly admissible. However, the submission by which the Appellant seeks a finding by the Federal Tribunal that “the international arbitration proceedings which led to the award [under appeal] are themselves void and annulled” is not admissible. Such a submission indeed disregards that a civil law appeal against an international arbitral award as stated at Art. 77 (2) LTF may only seek the annulment of the award. This Court could at most issue a finding of lack of jurisdiction of the arbitral tribunal as to V.X.________ if it admitted the corresponding grievance contained in the appeal (see ATF 136 III 605 at 3.3.4 p. 616). Moreover, the Respondents deny that the matter is capable of appeal in respect of some of the arguments contained in the appeal and a review of that issue must be reserved.
First, the Appellant argues that the arbitral tribunal was wrong to assume jurisdiction as to V.X.________. The analysis of that argument, which is based on Art. 190 (2) (b) PILA, requires a summary of the reasons in support of the argument and those which the Respondents submit in defense.
2.1.1 First of all, the Appellant argues that the existence of a contract in favor of a third person, namely V.X.________, cannot be inferred from the Agreements. According to him, the complex mechanisms devised by the signatories of the Agreements – in particular his bringing the Z.X.________ shares to V.X.________ in the framework of the increase of capital of that company – were in favor of the X.________ partners themselves and particularly D.X.________, by allowing the latter to leave the family group and the members of the B.X.________ branch to buy his shares. As to V.X.________, entirely dominated by the X.________ partners, its only purpose was as a cog in the implementation of these mechanisms, similar to other companies of the X.________ group (R.________, Y.________, Z.X.________, etc.) without any economic interest in its favor from the purchase of the Z.X.________ shares.
According to the Appellant, if V.X.________ was not the beneficiary of the commitments made by the X.________ partners, then it was even less entitled to claim a personal right to the implementation of such commitments from them, so that the very idea of a contract in favor of a third person in its favor could not be taken into account in this case.
Finally and above all, the Appellant argues that an alleged contract in favor of a third person could not compel its beneficiary to submit to the arbitration agreement contained in the contract containing that particular pattern of implementation of the obligation, contrary to what prevails in case of the assignment of a claim, in the assumption of an obligation, or the transfer of a contractual relationship.
2.1.2 For their part, the Respondents begin by casting doubt on the Appellant’s legally protected interest to invoke the alleged lack of jurisdiction of the arbitral tribunal as to V.X.________. In their opinion, should the argument of lack of jurisdiction ratione personae be admitted, only the first point of the award under appeal should be annulled, which finds jurisdiction of the arbitral tribunal in favor of that company. As to the other points of the award, particularly the one ordering the Appellant to bring his Z.X.________ shares into V.X.________ according to the commitment underwritten in favor of D.X.________, B.X.________ and C.X.________ in the Agreements, they should be maintained, particularly because the Appellant too had made submissions on the merits in their respect. On the basis of the arbitral award confirming the validity and the enforceability of that commitment, the Respondents may demand from the Appellant that he brings his Z.X.________ shares to V.X.________. Thus, according to the Respondents, the Appellant has no legally protected interest to obtain the annulment of the first item in the award as this would change nothing to his obligation to bring the shares, which would nonetheless remain.
The Respondents then dispute the argument as to the lack of jurisdiction of the arbitral tribunal as to V.X.________. They point out, as the arbitrators did, that the Appellant himself admitted the existence of contracts in favor of a third person in the Agreements, in his post-hearing brief. According to them, all parties except the Appellant would moreover consider that the intent of the signatories of the Agreements was to create a contract in favor of X.________. That common intent would also appear from the circumstances of the case. V.X.________ had to play an active part in the process of restructuring group X.________; in that framework it had some rights but also some obligations for the implementation of which it had to be able to obtain the Z.X.________ shares, if necessary through arbitral proceedings; its situation was different from that of the other companies of the X.________ group to the extent that it was the only company with commitments to third parties, in this case the French regulator. Consequently, it cannot be denied the right to act in the arbitration next to the other Respondents in order to obtain implementation of the Appellant’s commitments.
As to the extension of the arbitration clause to V.X.________, the Respondents point out that case law of the Federal Tribunal is not formalistic in this field, particularly as to the opportunity to bring a third party into an arbitration which is involved in the implementation of the contract containing the arbitration clause. This would be the case of the aforesaid company, which is directly affected by the implementation of the Agreements, and which intervened repeatedly in their implementation. Moreover, according to the Respondents, if it is true that the beneficiary of a contract in favor of a third party cannot be compelled to participate in the arbitration where the beneficiary has been inserted into a contract containing an arbitration clause, that specific requirement is not applicable to the present case, because the beneficiary of the contract in favor of a third party was a claimant in the arbitral proceedings. Hence the Respondents (and the arbitrators) hold the view that the arbitration clause contained in the Agreements bound V.X.________ as well.
2.2 Seized of the grievance of lack of jurisdiction the Federal Tribunal may freely review the legal issues, including the preliminary issues determining jurisdiction of the arbitral tribunal or lack thereof (ATF 134 III 565 at 3.1). However, this Court may only review the factual findings on which the arbitral award under appeal rests only if one of the grievances spelled out at Art. 190 (2) PILA is raised against them or when some new facts or evidence are exceptionally taken into account in the framework of the civil law appeal (judgment 4A_234/2010 of October 29, 2010, at 2.1).
2.3 A matter is capable of civil law appeal only to the extent that the appellant has a legally protected interest to the annulment or to the modification of the decision under appeal (Art. 76 (1) (b) LTF in the wording prior to the amendment of January 1, 2011), which implies that the appellant should have failed to obtain his submissions as to rights belonging to him and that he should still have an interest to the modification of the decision (judgment 4A_503/2008 of April 7, 2009 at 2.3 and the writer quoted).
From that point of view, in this case, it is not certain that the matter is capable of appeal. At paragraph 4 of the award, the arbitral tribunal ordered the Appellant to assign the 70,187 Z.X.________ shares he owns to V.X.________. It did so after emphasizing in the reasons of the award that the Appellant does not deny being bound by the Agreements to assign his Z.X.________ shares to V.X.________ (nr. 227) and does not make a procedural challenge to the authority of the arbitral tribunal to issue an injunction (nr. 228). Faced with an action by all natural persons having entered into the Agreements imposing the duty to fulfill that obligation in favor of a third party with him, the Appellant cannot escape from that duty simply because the third party would not be bound by the arbitration clause contained in the aforesaid Agreements. Hence, the issue as to whether or not the existence of a contract in favor of a third party can be inferred from a contract and whether or not it is possible to make submissions in favor of that third party on the basis of a contract in favor of a third party, or perhaps for another reason, has no relationship to the issue of jurisdiction; instead it belongs to the merits and must be resolved by the arbitrators (judgment 4P.141/1989 of November 20, 1989, at 2b/cc, reproduced by PATRICK KRAUSKOPF, Der Vertrag zugunsten Dritter, Fribourg 2000, p. 454 s.). In this case, they decided that issue in the affirmative. The Appellant rightly refrains from arguing that the three other signatories of the Agreements and V.X.________ were necessary Respondents towards him, an issue which could have an impact on the jurisdiction of the arbitral tribunal. Consequently, one hardly sees in what way he could still have a present and legally protected interest to obtain a finding that the Arbitrators allegedly had no jurisdiction to order him to fulfill the obligation at hand, insofar as the specific request came from V.X.________ when he does not deny that they had jurisdiction to issue the same injunction against him at the request of the other Claimants.
However the Appellant also argues that the undue participation of V.X.________ in the arbitral proceedings had serious consequences which would justify annulling the award, if not the arbitral proceedings as such. Assuming therefore that he is right, he has an interest to obtain a finding by this Court that the arbitral tribunal had no jurisdiction as to V.X.________. Consequently the matter is capable of appeal from that point of view.
2.4.1 When examining whether or not it has jurisdiction to decide the dispute at hand, the arbitral tribunal must resolve the issue of the subjective bearing of the arbitration agreement among other issues. It must determine which are the parties bound by that agreement and, as the case may be, whether one or several third parties not mentioned nonetheless fall within its scope. That issue of jurisdiction ratione personae, which belongs with the merits, must be resolved in the light of Art. 178 (2) PILA. The aforesaid provision embodies three alternate connections in favorem validitatis, without creating a hierarchy between them, namely the law chosen by the parties, the law governing the object of the dispute (lex causae) and Swiss law (ATF 134 III 565 at 3.2 p. 567).
In view of the principle of relativity of contractual obligations, the arbitration agreement contained in a contract binds only the contractors. However, in a number of hypotheses such as the assignment of a claim and the assumption of an obligation or the transfer of a contractual relationship, the Federal Tribunal has long held that an arbitration agreement may bind even those who did not sign it and are not mentioned in it. Moreover, the third party which implicates itself in the performance of the contract containing the arbitration clause is deemed to have been decisively bound by it if its intent to be bound by the arbitration agreement can be inferred from that participation. However, when it comes to guarantees, such as a contract of guarantee, a contract to the charge of a third person or a bank guarantee, it has been held that an arbitral tribunal cannot assume jurisdiction as to the creditor’s rights towards the guarantor merely because the contract between the creditor and the debtor contains an arbitration agreement (ATF 134 III 565 at 3.2 and references).
As to the contract in favor of a third party, legal writers principally examined the issue as to whether or not the beneficiary of such a contract is bound by an arbitration clause inserted into the contract by the other parties with a view to creating some obligations, so that he could be drawn into the arbitral proceedings concerning the obligation stipulated in his favor against his will. The answers given, often with nuances, are not unanimous. For some writers, the beneficiary of the third party contract is bound by the arbitration clause in principle only if he consents to the dispute being submitted to arbitration (Fouchard/Gaillard/Goldman, Traité de l'arbitrage commercial international, n° 498 p. 298; Wenger/Müller, in Commentaire bâlois, Internationales Privatrecht, 2e éd. 2007, n° 66 ad art. 178 LDIP; apparently agreeing: Kaufmann-Kohler/Rigozzi, Arbitrage international, 2e éd. 2010, p. 146 note 172). Other legal writers hold the view that the arbitration agreement contained in the contract generating the obligations can bind the third party ipso jure (Schwab/Walter, Schiedsgerichtsbarkeit, 7e éd. 2005, n° 36 ad chap. 7; Jens-Peter Lachmann, Handbuch für die Schiedsgerichtspraxis, 3e éd. 2008, n° 502 p. 141; Rüede/Hadenfeldt, Schweizerisches Schiedsgerichtsrecht, 2e éd. 1993, p. 81; Krauskopf, op. cit., n° 1043) or, at the very least, when the beneficiary accepted the rights stipulated in his favor (Poudret/Besson, Comparative Law of International Arbitration, 2e éd. 2007, n° 289 and the writers quoted in footnote 658 p. 252). As to Berger/Kellerhals (International and Domestic Arbitration in Switzerland, 2e éd. 2010, nos 455 et 514) they examine the issue from another perspective. They ask whether the arbitration agreement itself can be entered into in favor of a third party. However, there is no need to examine the issue any further. In the case at hand, the issue is not whether to impose a duty to participate in the arbitral proceedings on the beneficiary of the alleged contract in favor of a third party because it took the initiative to join the other Claimants in the filing of the arbitration request. Providing that the contract in favor of a third party which V.X.________ claims actually existed, one does not see why the Appellant, who signed the Agreements containing the arbitration clause, could argue that the beneficiary of the contract in favor of a third party should not be able to bring his claim into the same proceedings that the other parties to the Agreements chose to resolve any possible disputes, namely arbitration. Moreover, except for an agreement to the contrary not existing in this case, the beneficiary of a contract in favor of a third party within the meaning of Art. 112 (2) CO acquires a claim against the debtor (or the promisor) with all preference and accessory rights connected thereto, including the arbitration agreement (mutatis mutandis ATF 128 III 50 at 2b/bb p. 56 as to the assignment of a claim). If he intends to use such rights in arbitral proceedings it is not in the power of the other parties to prevent him from doing so.
2.4.2 A contract in favor of a third person within the meaning of Art. 112 CO is a contract by which a party, the stipulator, causes another party, the promisor, to commit in favor of a third party, the beneficiary (Pierre Engel, Traité des obligations en droit suisse, 2e éd. 1997, p. 417). When such was the intent of the parties, the third party or its successors may seek performance personally (Art. 112 (2) CO). In that case, the contract in favor of a third person is perfected.
It must be granted to the Appellant that the circumstances of the case at hand are not typical of that legal pattern, certainly very frequent in practice but generally in other fields of the law than that involving companies or the relationships between partners, such as insurance or the relationship between the banks and their clients (for some examples see Engel, op. cit., p. 422 to 424). Thus the real purpose of the Agreements was to enable D.X.________ to leave the family group and for the members of the B.X.________ branch to buy back his shares. As to B.X.________, D.X.________ and C.X.________ (the stipulators), their prime intent was not to give V.X.________ (the beneficiary) the right to claim personally from A.X.________ (the promisor) that he should deliver his 70,187 Z.X.________ shares when it would increase its capital. Such a contribution was only one of the fourteen steps of the significant transactions that had to be carried out with a view to reaching the goal sought and which also implicated other companies than V.X.________. It would also remain to be shown that the latter would itself have found an advantage in the acquisition of the Z.X.________ shares held by A.X.________ against delivery to him of its own newly issued shares.
However it appears from the award under appeal that, notwithstanding the appearance, the signatories of the Agreements did indeed want to give to V.X.________ its own right to obtain the promised performance and that accordingly there is a contract in favor of a third party. Indeed the arbitrators draw such a conclusion from the fact that the Appellant specifically admitted this in his post-hearing memorandum (award nr. 142 ff). Moreover they find, on the basis of the Appellant’s statements in the various Agreements, that he irrevocably committed to participate in the increase of capital of V.X.________, which was aware of the commitment, by the delivery of his Z.X.________ shares (award nr. 137 to 139). These conclusions of the arbitrators, based on the Appellant’s statements before and after the arbitration was initiated, show the true intent of that party, consistent with that of the others incidentally, and accordingly bind the Federal Tribunal as they are within the scope of facts (ATF 131 III 606 at 4.1 p. 611).
Entitled to claim performance from the Appellant, V.X.________ was accordingly entitled to sue the promisor to obtain performance. As it used the arbitral method foreseen in the Agreements in order to do so, the Appellant is wrong to argue that the arbitral tribunal had no jurisdiction over that party (see here above at 2.4.1 in fine). Similarly, it unsuccessfully challenges the latter’s standing to act as to the claim arising from the contract in favor of a third party.
2.4.3 Be that as it may, even if that legal concept were to be set aside, the jurisdiction of the arbitrators towards V.X.________ would have to be admitted. Even the arbitral tribunal held that the aforesaid company was supposed to participate actively in the implementation of the Step Plan and specifically in its Steps 6 and 7. In its opinion “such a participation in the implementation shows the common intent of the Parties to see V.X.________ bound by the arbitration agreement.” By bringing to light their real intent to extend the arbitration agreement to that third party the arbitrators made a final finding of facts which prevents one of those parties to challenge a posteriori the right of V.X.________ to participate in the arbitration.
This being so, the argument based on a violation of Art. 190 (2) (b) PILA is unfounded, even if the matter is capable of appeal.
Under the heading “Importance and Consequence of the Errors of the Award” the Appellant makes three additional criticisms of the arbitral tribunal.
3.1.1 First, is the Appellant argues that the arbitrators disregarded the fact that that the unlawful participation of V.X.________ in the arbitral proceedings severely and materially affected the locus standi in the case and the resolution of the dispute within the meaning of Art. 190 (2) (d) PILA. The participation of that company caused the debtor to be held as a debtor defaulting towards a third party – V.X.________ - to which he could oppose nothing. Thus, the arbitral tribunal focused on that third party, thereby forgetting the very nature of the dispute, namely the liquidation of a partnership, therefore harming the Appellant, in contrast to D.X.________, in the liquidation process. This would explain its erroneous decision not to admit that the Agreements had been invalidated or terminated by the Appellant.
3.1.2 With the Respondents, one may seriously doubt that the matter is capable of appeal with regard to the first argument. As it is presented, it makes it impossible for the Federal Tribunal to know what the Appellant really argues the arbitrators failed to do pursuant to Art. 190 (2) (d) PILA. In reality, under the guise of an alleged procedural error, which would affect the award under appeal, the Appellant appears to attempt to question the resolution reached by the arbitral tribunal as to the issues before it on the merits, such as the effectiveness of the invalidation or of the termination of the Agreements. Yet determining whether the solution was materially correct does not fall within the aforesaid provision or within public policy as provided by Art. 190 (2) (e) PILA (which, incidentally, was not invoked in this context).
It is also true, as the Respondents point out, that at the end of the hearing each Party stated that it had no objections as to the conduct of the proceedings (award nr. 37), so the Appellant is hardly acting in a manner consistent with the rules of good faith when he argues unequal treatment or the violation of his right to be heard now that the arbitral proceedings are closed.
Be this as it may, the argument also relies on the unsubstantiated assumption that V.X.________’s participation in the proceedings was “unjustified.” The argument thus cannot succeed.
3.2 Furthermore the Appellant argues that drawing V.X.________ into the arbitral proceedings also sought to obtain an enforceable decision, in the format of an arbitral award, which would allow the X.________ partners to spare ordinary law suits that the aforesaid company and Z.X.________ would have to conduct in France if they wanted to force him to bring his Z.X.________ shares into V.X.________ with a view to the latter’s increase of capital or to enjoin him from assigning the aforesaid shares to Z.X.________ within the framework of the reduction of capital of that company through the acquisition of its own shares. In summary, according to the Appellant, the award under appeal would unduly provide V.X.________ with an enforceable title against him, thus depriving him of his customary judicial forum.
The matter is not capable of appeal in this respect. Not only does it rely on an allegation – the goal sought by Claimants X.________ – which corresponds to no finding of fact in the award under appeal but it also fails to establish a nexus with the violation of Art. 190 (2) (d) PILA. In particular, the Appellant does not indicate what relationship there would be between that provision and the goal which the Claimants sought when they drew him before the arbitral tribunal.
3.3 Finally, the Appellant argues that the Respondents created an artificial international character to the arbitration by introducing V.X.________ into the proceedings, thus depriving him of the appeals provided by the Intercantonal Convention on Arbitration of August 27, 1969, (hereafter: the Concordate). That “subterfuge” by the Respondents would be contrary to public policy, according to the Appellant, and he points out that the Swiss and ordinary concept of public policy should be taken into account because in reality the guarantees of Art. 30 Cst5 were “flouted” in this case.
The matter is not capable of appeal in this respect as well. Indeed the Appellant is barred from raising that argument because he did not invoke the protection of the rules of the Concordate during the arbitral proceedings. To the contrary, he specifically referred to PILA in the briefs which are part of the record of the arbitration, for instance under paragraphs 51 and 53 of his answer of March 15, 2010.
In conclusion, the appeal must be rejected to the extent that the matter is capable of appeal. In such an outcome of the proceedings, the judicial costs shall be borne by the Appellant (Art. 66 (1) LTF) and he shall compensate the Respondents who are entitled to claim from him severally in this respect (Art. 68 (1) and (2) LTF).
The judicial costs, set at CHF 15,000, shall be borne by the Appellant.
The Appellant shall pay to the Respondents as creditors severally an amount of CHF 17,000 for the federal judicial proceedings.
This judgment shall be notified to the Representatives of the Parties and to the Chairman of the GCIS Arbitral Tribunal.
1. Translator’s note : Quote as A.X._____ v., B.X._____ et al. 4A_44/2011. The original decision is in French. The text is available on the website of the Federal Tribunal www.bger.ch.
2. Translator’s note : CO is the French abbreviation for the Swiss Code of Obligations.
4. Translator’s note : LTF is the French abbreviation for the Federal Statute of June 17, 2005 organizing the Federal Tribunal, RS 173.110.
5. Translator’s note : Cst is the French abbreviation for the Swiss Constitution.


UNITED STATES OF AMERICA v. ZACHARY LAMONT DIXON, Defendant.
[ ] This matter shall be set for hearing before the United States Magistrate Judge who set the conditions of release for determination, by clear and convincing evidence, of whether the defendant is likely to flee or pose a danger to any other person or the community if released under § 3142(b) or (c) .
[ ] The defendant is not ordered detained pursuant to 18 U.S.C. § 3143(a)(2) because the defendant has filed a motion alleging that there are exceptional circumstances under § 3145(c) why he/she should not be detained under § 3143(a)(2). This matter shall be set for hearing before the United States Magistrate Judge who set the conditions of release for determination of whether it has been clearly shown that there are exceptional circumstances under § 3145(c) why the defendant should not be detained under § 3143(a)(2), and whether it has been shown by clear and convincing evidence that the defendant is likely to flee or pose a danger to any other person or the community if released under § 3142(b) or (c).
SIGNED this 17th day of October, 2017.


text:
Simpson fell off an upper bunk while incarcerated in the Bartholomew County Jail for a drunken driving conviction. Simpson was intoxicated when he reported to the jail to serve his weekend stay. Officers placed him in a holding cell. After they thought he was sober, they assigned him to an upper bunk, although he was obese. While sleeping, Simpson went into convulsions and fell off the bunk on to the concrete floor. He died from his injuries. His estate sued, arguing that the conditions under which the jail kept Simpson and the care he received were inadequate under the Eighth Amendment. The district court found insufficient evidence to show the defendants were aware of, but disregarded, a risk to Simpson’s health and safety and granted them summary judgment. The Seventh Circuit affirmed. The defendants tailored their care for Simpson to account for his intoxication, even asking Simpson if he was experiencing any withdrawal symptoms. Simpson said no. The deputies believed he was sober when they moved him. Had they known about Simpson’s alcoholism and the risk posed by withdrawal, they might have taken additional steps to protect him. Without any indication that they knew of a serious risk, they cannot be held liable under section 1983 for either the conditions of confinement or the medical treatment they provided.
In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16 2899 ESTATE OF DENNIS SIMPSON, et al., Plaintiffs Appellants, v. MARK E. GORBETT, JAMES TINDELL, JARED WILLIAMS, JOHNNY YORK, TRAVIS HARBAUGH, and CORY LEHMAN, Defendants Appellees. ____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:14 cv 01035 SEB MJD — Sarah Evans Barker, Judge. ____________________ ARGUED JANUARY 6, 2017 — DECIDED JULY 14, 2017 ____________________ Before WOOD, Chief Judge, and BAUER and ROVNER, Circuit Judges. WOOD, Chief Judge. This case concerns the death of Dennis Simpson, an inmate who fell off an upper bunk while incar cerated in the Bartholomew County Jail for a drunken driving conviction. Simpson was intoxicated when he reported to the jail to serve his weekend stay, prompting officers initially to place him in a holding cell. After they thought he was sober, 2 No. 16 2899 they assigned him to an upper bunk in a two person cell, even though he was obviously obese. While sleeping, Simpson went into convulsions and fell off the bunk on to the hard con crete floor. He died from his injuries. His estate sued six county employees—five officers and the sheriff—arguing that the conditions under which the jail kept Simpson and the care he received were inadequate under the Eighth Amendment. The district court found there was in sufficient evidence to show the defendants were aware of, but disregarded, a risk to Simpson’s health and safety, and so granted them summary judgment. We affirm. I Simpson reported to the Bartholomew County Jail around 10:30 a.m. on Friday, November 29, 2013. He was there to serve his second of three weekends of confinement as punish ment for a May 2013 drunk driving violation. Anyone could see that Simpson was obese. Although the officers did not know Simpson’s precise weight (368 pounds) because they did not weigh him at check in, one of the defendants correctly guessed that Simpson weighed between 350 and 400 pounds. Simpson also was intoxicated that morning. The deputy processing him upon his arrival, Officer Johnny York, smelled alcohol on Simpson’s breath. York tested Simpson’s blood alcohol content (BAC), and found it was 0.23%, just short of three times Indiana’s legal limit for driving. York notified his supervisor, Sergeant James Tindell, who in turn asked Simpson whether he was experiencing withdrawal symptoms. Simpson said he was not. Bartholomew County Jail policy called for intoxicated inmates with BACs under 0.25% to be placed in holding cells until they were sober. In No. 16 2899 3 accordance with that rule, Simpson was placed in a holding cell containing only benches—no beds. At some point Simpson complained to York about his placement, to no avail. York responded that Simpson was too intoxicated to be placed in a cell with bunk beds at that time. York served Simpson lunch around 11:20 a.m.; this was apparently the last time those two had contact. Officer Travis Harbaugh, another defendant, replaced York that evening. At some point when Harbaugh checked on Simpson, Simpson reported that he had blood in his stool. Harbaugh informed a supervising officer, Jared Williams, about Simpson’s condition. Around 11:30 p.m., Harbaugh moved Simpson to a cell that had two bunk beds. Harbaugh and York said that it was common practice to use a burn off chart to estimate how many hours it takes a person’s blood alcohol level to reach zero. (While blood alcohol content is certainly relevant in these situations, if the person is an alcoholic, so are with drawal symptoms such as delirium tremens; the latter symp toms do not normally manifest themselves until withdrawal happens—that is, when BAC nears zero. We address this briefly below.) At the time of transfer, the defendants appar ently believed Simpson was sober, although they did not re test him. The lower bunk in Simpson’s new cell was occupied, and so Simpson was given the upper bunk. Simpson’s bed was affixed to a wall of the jail cell a little more than four feet off the ground. It was only 30 inches wide. (To put this in con text, we note that a standard twin bed is about 25% wider, at 38 inches.) Simpson slept on his assigned upper bunk for some time. But around 3:15 a.m., he suddenly began experiencing sei zure like convulsions. He rolled out of the bunk and fell to the 4 No. 16 2899 concrete floor, hitting his head. Officers Harbaugh and Cory Lehman witnessed Simpson’s fall and ran into the cell to check on him. Finding him unresponsive, they performed CPR on him until paramedics arrived and rushed him to a nearby emergency room, where he was pronounced dead at 4 a.m. For the purposes of the summary judgment motion, the defendants concede that Simpson died of injuries sustained from his fall, and that his fall was precipitated by an alcohol withdrawal seizure. Simpson’s estate asserts that at the time of Simpson’s fall, jail policy “required inmates weighing more than 350 pounds to be placed in lower bunks.” It supports this contention with an indirect citation to an undated order apparently from the Bartholomew County Sheriff’s Department concerning the jail’s medical care policies for inmates. But the only indication of any such policy comes from Advanced Correctional Healthcare, which did not enter into a contract to provide medical services for the jail until November 2013. Thus, we see no evidentiary support for the Estate’s contention that jail policy called for obese inmates to be given lower bunks and accordingly disregard that possibility. After Advanced Correctional came on the scene, which was several months after Simpon’s death, it promulgated medical guidelines for the jail. Included in the Advanced Cor rectional guidelines was a list of “criteria for Bottom Bunks.” The list called for certain people to be given lower bunks, in cluding inmates who are elderly, have diagnosed seizures or diabetes, or, as relevant here, were obese, defined as weighing over 350 pounds. Another rule called on the facility to “[a]ddress ‘serious’ medical, dental, and mental health is sues.” No. 16 2899 5 In the wake of Simpson’s unfortunate death, Simpson’s son, Devon Simpson, and sister, Gloria Skinner, brought this section 1983 action against six county officials in their individual and official capacities, on Simpson’s behalf as representatives of his estate. The lawsuit named as defendants Sheriff Mark E. Gorbett—the head of the jail—and deputies York, Williams, Harbaugh, Lehman, and Tindell. The complaint alleged that the defendants were deliberately indifferent to Simpson’s serious medical needs and that they subjected him to inhumane conditions of confinement, in violation of the Eighth Amendment. The district court construed the Estate’s deliberate indifference claim as embracing three theories of liability: one concerning the conditions of Simpson’s confinement, another concerning the failure to provide adequate medical care, and the third against Gorbett in his official capacity for failure to train adequately his deputies. The defendants filed a motion for summary judgment on September 21, 2015. The district court granted the motion on June 22, 2016, for all defendants and all claims. Lehman and Williams prevailed because, as the Estate acknowledged, neither officer had been involved with Simpson’s care before his fall. York, Tindell, and Harbaugh were entitled to summary judgment on the official capacity claims because those claims duplicated the official capacity claim against Sheriff Gorbett, who was in charge of the jail. The Estate’s claim against Gorbett in his individual capacity foundered because Gorbett was not personally involved in Simpson’s care. That left the individual capacity claims against York, Tindell, and Harbaugh, and the official capacity claim against 6 No. 16 2899 Gorbett for failure to train employees about how to care for drunken or obese inmates. The court found no evidence that would allow a factfinder to conclude that the deputies were deliberately indifferent in the care they rendered and the conditions of Simpson’s confinement. Finally, it dismissed the official capacity claim against Sheriff Gorbett on the ground that no evidence in the record could support a finding that a top bunk assignment posed a substantial risk to obese inmates, and so the sheriff could not be liable for failing to train his officers about such a risk. II The Estate appeals from the district court’s adverse rulings on its claims of deliberate indifference for failure to provide adequate medical care claims and constitutionally defective conditions of confinement claims. (It does not appeal the re jection of its failure to train claim.) It is not clear which de fendants, and in what capacity, its appeal covers. Nonetheless, with the failure to train claim out of the case, the duplicative nature of the official capacity claims indisputable, and the acknowledged fact that Lehman, Williams, and Gorbett were not personally involved in Simpson’s care, we conclude that this appeal can be limited to the individual capacity claims against York, Tindell, and Harbaugh (the “deputy defend ants”). Because this is an appeal from the grant of summary judg ment, our consideration of the case is de novo. Petties v. Carter, 836 F.3d 722, 727 (7th Cir. 2016). We evaluate the record in the light most favorable to the non movant, the Estate, and draw all inferences in its favor. Id. Summary judgment is warranted if the movant “shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment No. 16 2899 7 as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250–51 (1986). A genuine issue of material fact exists when “the evidence is such that a rea sonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. A We turn first to the conditions of Simpson’s confinement. The Estate contends that the deputies’ assignment of Simpson—a drunk and obese man—to the two and a half foot wide upper bunk was unsafe and inhumane. A jail’s conditions violate the Eighth Amendment when “(1) there is a deprivation that is, from an objective standpoint, sufficiently serious that it results in the denial of the minimal civilized measure of life’s necessities, and (2) where [jail] officials are deliberately indifferent to this state of affairs.” Gray v. Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016) (internal quotation marks omitted) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). We begin with the first requirement. Unacceptable condi tions include those that pose a “substantial risk to inmate health or safety.” See Farmer, 511 U.S. at 837; Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002). Jail conditions “may be un comfortable, even harsh, without being inhumane.” Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 664–65 (7th Cir. 2012) (citing Farmer, 511 U.S. at 832). This means that to defeat sum mary judgment the plaintiff must show that a factfinder rea sonably could conclude that the conditions of Simpson’s con finement “exceeded mere discomfort and were constitution ally unacceptable.” Rice, 675 F.3d at 664–65. 8 No. 16 2899 Before we can analyze the Estate’s claim, we must give a more precise account of the relevant conditions of confine ment. The Estate contends that Simpson was drunk when the defendants transferred him to the upper bunk. But the record does not permit that inference. While Simpson indisputably was intoxicated when he reported to Bartholomew Jail, the deputy defendants kept Simpson in the holding cell for nearly 13 hours to give his body what they believed was sufficient time to process the alcohol in his system. The Estate provides no evidence that Simpson was still intoxicated when he finally was given a bed. Although it challenged the accuracy of the “burn off” chart because the document did not account for Simpson’s obesity, it has not revived that attack here. That is just as well: whether the chart is a good general guide is not enough, by itself, to show what Simpson’s blood alcohol level was when he was moved. A plaintiff must meet a motion for summary judgment with evidentiary materials that show there is a genuine issue for trial. Siegel v. Shell Oil Co., 612 F.3d 932, 937 (7th Cir. 2010). The Estate has failed to do so with respect to Simpson’s intoxication at the time of the bunk as signment. The record does support a finding that the officers as signed Simpson, a visibly obese man who had been highly in toxicated 13 hours earlier, to the narrow upper bunk. We as sume that there are some circumstances where a small, ele vated bed might pose a “substantial risk of serious harm” to an inmate’s health or safety. Farmer, 511 U.S. at 834. But the Estate has not provided evidence that (if accepted) would show the requisite level of risk and harm here. We do not un derstand the Estate to be arguing that 30 inch bunks, or top bunks, are unconstitutional for all inmates; the Estate is chal No. 16 2899 9 lenging the assignment of a morbidly obese man to this nar row, upper bed. But its argument that the bunk was unreason ably dangerous to Simpson rests almost entirely on hind sight—that is, what happened after Simpson had been sleep ing in apparent safety for several hours, when he suddenly had convulsions, tumbled off, and suffered his fatal injury. But because our inquiry is objective, we cannot base our con clusion exclusively on what came to pass. Based on this rec ord, we cannot conclude that Simpson’s bunk assignment ob jectively was so dangerous that it denied Simpson “the mini mal civilized measure of life’s necessities.” Id. (internal cita tion omitted). The bottom bunk policy does not save the Estate’s claim, even if we were to assume that it was in place at the time of Simpson’s fall. Section 1983 protects against “constitutional violations, not violations of … departmental regulation and … practices[.]” Scott v. Edinburg, 346 F.3d 752, 760 (7th Cir. 2003). The Estate argues that a jury could use the policy as circumstantial evidence of the defendants’ knowledge of the risk. It is mistaken. It is one thing to say that circumstantial evidence may support an inference that the defendants had actual knowledge of a condition, see Farmer, 511 U.S. at 842; Hall v. Bennett, 379 F.3d 462, 464 (7th Cir. 2004), but it is quite another thing to say that the policy also supports an inference that the defendants knew that the condition in question was unreasonably dangerous or otherwise in violation of the Eighth Amendment. In any event, even if we were to assume that a trier of fact could find in the Estate’s favor on the objective part of the con stitutional inquiry, it would still be out of luck. A jail or prison 10 No. 16 2899 official may be found liable only if he “knows of and disre gards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 838. This means that the defendants must have acted with more than simple or even gross negligence, alt hough they do not need to act purposefully or knowingly in flict harm. Washington v. LaPorte Cnty. Sherriff’s Dep’t, 306 F.3d 515, 518 (7th Cir. 2002). The requisite level of knowledge may be inferred in instances where the risk posed by the condition is obvious. Farmer, 511 U.S. at 842; Hall, 379 F.3d at 464. There is a dearth of evidence suggesting deliberate indif ference. Even if we assume that assigning a man as large as Simpson, who obviously had an alcohol problem, to a narrow top bunk was objectively dangerous, there is no indication that the deputy defendants were aware of the risk posed by that assignment or that they knew the risk was excessive. The Estate argues that a factfinder could infer the requisite knowledge because it was plain at a glance that Simpson’s bed was too small to accommodate his frame. But there is a differ ence between discomfort and danger, and that glance could not reveal to the deputies whether the poor fit created a “sub stantial risk.” See Farmer, 511 U.S. at 844. The Eighth Amend ment demands that officials ensure “reasonable safety,” not that they protect against all risks. Id. at 844–45. The risk of in jury from a fall onto a concrete floor is obvious, but the chance that someone would fall is not. Perhaps tellingly, the record reveals no evidence showing that other obese inmates (or oth ers suffering from alcohol withdrawal) fell off their bunks in Bartholomew Jail, or that anyone else sustained serious inju ries. The rule is that an official who should have, but failed, to perceive a significant risk cannot be held liable. See id. at 838. It applies to these defendants. No. 16 2899 11 B That leaves us with the Estate’s Eighth Amendment deliberate indifference claims for failure to provide adequate medical care for Simpson’s obesity and alcoholism. Because the Eighth Amendment requires that inmates receive adequate medical care, officials violate the Constitution when they are deliberately indifferent to inmates’ serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103–05 (1976). A claim of deficient medical care requires proof of an objectively serious medical condition, and the official’s deliberate indifference to that condition. Duckworth v. Ahmed, 532 F.3d 675, 679 (7th Cir. 2008). The defendants concede that Simpson’s obesity and alcoholism were objectively serious medical conditions. We thus turn immediately to the deliberate indifference inquiry. See Zentmyer v. Kendall Cnty., Ill., 220 F.3d 805, 810 (7th Cir. 2000). The plaintiff has the burden of demonstrating that there is evidence from which a factfinder could conclude that the de fendants acted with a sufficiently culpable state of mind. Farmer, 511 U.S. at 834. In deliberate indifference claims based on inadequate medical care, one way of satisfying that burden is to show that the risk from a course of treatment—or a lack of treatment—is obvious enough that a factfinder could infer that the defendant knew about the risk, yet disregarded it. Petties, 836 F.3d at 729. We take into account what risk the de fendants knew of, and whether the treatment they rendered “was so far afield” from what one would expect that a jury could infer deliberate indifference. Duckworth, 532 F.3d at 680. We begin with the deputies’ response to Simpson’s obesity. Although they did not know about his medical diagnosis or his precise weight, a reasonable jury could conclude that the 12 No. 16 2899 defendants knew Simpson was obese based on his physical appearance. But the Estate leaves us in the dark as to what risk Simpson’s obesity presented or what care the deputy de fendants should have furnished to Simpson during his week end stay. Perhaps the Estate believes that Simpson should have been given a lower bunk or no bunk altogether; but if this is so, it has just re stated its conditions of confinement claim. We cannot discern a free standing medical treatment claim related to obesity. In the absence of some indication of what care was owed, but not rendered, the defendants cannot be held liable. The Estate’s claims regarding Simpson’s intoxication and “chronic alcoholism” come closer to the mark, but in the end they fare no better. The Estate marshals no evidence to suggest that Officers York, Tindell, and Lehman knew that Simpson was an alcoholic. They knew only—at most—that he was serving a relatively lenient sentence for driving while intoxicated, and that he was inebriated when he showed up for his second weekend. Absent any indication that the defendants knew that Simpson was addicted to alcohol and thus was likely to suffer from serious withdrawal symptoms, we may consider only whether a jury could find that the deputies rendered constitutionally defective care for his intoxication. We conclude, as did the district court, that this record would not support such a finding. The undisputed record shows that the defendants tailored their care for Simpson to account for his intoxication. After Officer York smelled alcohol on Simpson’s breath, he promptly tested his alcohol level and notified his supervisor, Tindell, of the result. In turn, Tindell asked Simpson if he was experiencing any withdrawal No. 16 2899 13 symptoms. Simpson said no. The deputies then held Simpson in a bunk less holding cell for more than half a day, until they believed he was sober. They did not observe Simpson exhibiting any signs of distress during this time. Unfortunately, the risk posed by Simpson’s intoxication did not pass as he sobered. Withdrawal symptoms may occur hours, if not days, after a heavy, long term drinker stops or reduces his alcohol consumption—long after his blood alcohol level zeroes out. See, e.g., Louis A. Trevisan et al., Complications of Alcohol Withdrawal, 22 ALCOHOL HEALTH & RES. WORLD 61, 62 (1998); Marc A. Schuckit, Recognition and Management of Withdrawal Delirium (Delirium Tremens), 371 NEW ENG. J. MED. 2109, 2109–10 (2014). Seizures most often occur within 48 hours after a person stops drinking alcohol, al though they may occur several days later. Trevisan, at 62. Other withdrawal symptoms, such as delirium tremens— disturbances in cognition and attention, which may include hallucinations—similarly can manifest days after a dependent person stops consuming. Id.; Christopher Pelic & Hugh Myrick, Who’s at Greatest Risk for Delirium Tremens, 2 CURRENT PSYCHIATRY 14, 17 (2003). But there is no indication that the deputies were aware of the extent of Simpson’s drinking problem, or of the protracted risk period that follows when a heavy drinker experiences withdrawal. In the absence of such evidence, it is impossible to conclude that the defendants were deliberately indifferent. Even the Estate fails to argue what care defendants should have rendered, but did not, for Simpson’s intoxication. 14 No. 16 2899 III Had the deputies known about Simpson’s alcoholism and the risk posed by withdrawal, they might have taken addi tional steps to protect Simpson from accidental harm. But in the absence of any indication that they knew of a serious risk, they cannot be held liable under section 1983 for either the conditions of confinement or the medical treatment they pro vided. We AFFIRM the judgment of the district court.
Jail staff cannot be held responsible for harm to detainee who fell out of bunk because of convulsions during alcohol withdrawal.

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5522 = TBC² 763 , 1039 . do-da-scara, YBL 121b11 . 3 pl.
tascrat, O'Dav. 1526 . Ipv. 3 s. [na]chib-tascrad, Wb. 22b1 .
3116 . nothascérad, TTr.² 852 . Pret. 3 s. tascrais, LL 108a14 .
thar, LU 4937 = TBC² 452 . toscarthar, O'Mulc. 573 . Pass.
35being the established form in late Mid. and in Mod.Ir. Pass.
fut. trascērthar, PH 6063 . Pret. 1 s. rothrascrus, LL 146b45 .
40(= doroscarsat), Ériu ii 3.4 ; pret. pass. dorascrad, Met.
45 gabais A. a láim ┐ dostascar ┐ dogéni a coblige, RC ix 452 .
bec . . . nach aram-trascair dar m'aiss, TBC² 3115 (leg.
nacham-t.). benid fona maccu . . . doscara .l. macc dīb, 398 .
TBC² 1716 . do bhuail in fer . . . gur thresgair go lár é, SG 278 .
he trascras in crand, Laws v 474 Comm. fogur gaeithe . . .
55indar lem nothascérad (sic leg.) fidbada in betha, TTr.² 852 .
gáeth . . . rothascair na toirthe anúas, Met. Dinds. iii 182 .
thascair a seilb huile .i. a oenboin, ZCP iii 4 § 8 v.l. (R).
poured her tears, E. O'Rahilly xvi 42 .
85tascrat .i. . . . co fastaid[-er] fiadain `they bind' (?), O'Dav.
the Scriptures you pull to pieces', Content. vi § 17 .
mischief (?), LL 146b45 ( PRIA xix 544 ).
Y Cymm. xiv 114 § 13 .
25dhosgartha steadfast (?), Luc. Fid. 3 .
bounds: dodath scenn toscen, Thes. ii 248.5 , see Ped. ii 617 .
Aililla Óloim invaded (?), SG ii 457 (perh. a different compd.).
35 Thes. ii 39.29 . tosceuli, 25 . ni toscelai , BVn. 56 ( Thes. ii 35 ).
Ml. 95c4 . 3 pl. dussceulat, 83b8 . Fut. 1 s. dusceulub, Ml.
59a2 . 3 pl. nachat-toscelfat, 107c11 . Part. taiscéltae. Vn.
taiscélad. Later as simple vb. taiscélaid.
perienced, CCath. p. 46 n. 1 .
? doscich: ind d. ¤ furbaide ferr cach fer fuirri, Thurn. zu Ir.
Hdschr. 52 § 24 (disgich, v.l.).
70doscrúdaigh[the], Prov. xxv 3 .
do-scuich v(*to-scuich-? Cf. do-foscaig) moves: slige . . .
chad , vn. of scuichid?) = doscuet, Corm. Y 1082 (see téit).
v.l.) don tír, RC ix 462 .
175 ( Tig. 621 poem).
leg.), Laws v 206.16 .
do-seinn v(*to-senn-, Ped. ii 625 ) Ipv. 3 s. toibned, Ml. 44a13 .
85ned, Ml. 41d10 . Subj. pres. 1 s. cu dusésa , Ml. 61c16 . Impf.
Ml. 36d17 . dosephain (dosefain, v.l.), Hy. v 57 .
3 pl. dosefnatar, Hy. v 62 . tafnetar, 60 . Perf. 3 pl. (perh.
LL 146a26 . do-r-raiffnetar, 285a7 .
10 viii 103.22 . Impf. s. lasse dusente , Ml. 142b4 . Subj. impf. s.
§ 26 ) (dosesa, v.l.).
vi 2216.11 . Pret. rotoifneadh, 2130.19 . ? toibnide, Lec. 77a15 .
(b) tafn-: Indic. pres. 3 s. tafnid, PH 2587 . Impf. 3 s.
rotafnitis, Cog. 180.18 . Condit. 3 pl. rothaféntais, TTr.² 1467 .
20 Perf. 3 s. rothafind, SR 6405 . rotafuind, RC xvii 19.24 (Tig.).
Keat. ii 719 , 3590 . tafnis, TFerbe 492 . 3 pl. rothaffniset, 317 .
25(c) taifn- (taibn-, taipn-) Pret. 3 s. taifnes, CCath. 194 .
PH 7223 . rotaipnedh, CCath. 5769 .
Vn. tafann. IGT Verbs § 54 . See 2 taifnigid.
lat cloénmíla Cerna, RC xxii 391 ( BDD app. 14 ), cf.
rostafainn ó a thír, i 114 . taifnes slúogh Bretan uadh, CCath.
. . . rotafnitis rigmilid Clanni L. a hinnib . . . na claidium, 180 .
50 Fig. tafnid in recht n-atharda drives out the law, PH 2587 .
ro-s-tafaind a n-ires-sin dispelled their faith, 2532 .
In later lang. barks, yelps: taifnid re n-a mbeul, Ps. lix 7 .
taifnedís amhuil madradh, 14 .


Preservation of error is often seen as a “gotcha” trick or something of interest only to appellate attorneys. But preservation rules can also help trial attorneys narrow broad claims and make sure they are able to address a defendant’s actual arguments. Moreover, it can keep a hearing focused on the issue at hand and prevent the State from being ambushed by additional arguments long after the fact.
The Court of Criminal Appeals does not often address simple preservation arguments, but in Douds v. State, it considered a preservation analysis in a mandatory blood draw case.1 The principles laid out by the court in this review can be applied broadly, both in suppression hearings and in trials in general, to make sure the arguments the defendant raises are addressed and time is not wasted on generic global claims.
Mr. Douds was arrested for driving while intoxicated. He rear-ended another car while driving with his wife after a party. His wife complained of chest and rib pain and said she could not move her right arm, but she refused to be transported to the hospital by EMS. The officer suggested after EMS left the scene that she needed to be checked out, and her companions in another car said, “We’re taking her.” Officer Tran believed that meant they were taking Mrs. Douds to a hospital or emergency care. Thus, after he conducted field sobriety tests and arrested Mr. Douds for DWI, he determined Douds was subject to a mandatory blood draw.2 He took Douds to a medical center, where blood was drawn without a warrant and showed a blood alcohol level of 0.209.
On appeal, Douds again argued that the statutory requirements of the mandatory blood draw were not met because his wife did not seek medical treatment. He also argued that the statute, as applied to him, had resulted in a warrantless seizure of his blood. The Fourteenth Court of Appeals originally denied his claims.4 Douds applied for en banc reconsideration, which was granted. In June 2014, eight months after the original opinion, a closely divided court vacated the prior judgment and issued a new opinion concluding there were no exigent circumstances justifying the warrantless seizure of Douds’s blood.5 The court concluded that Douds had preserved this complaint because he raised the issue of warrantless seizure; thus, it was the State’s burden to prove the search was reasonable. Because there were “no facts from which to conclude” that a reasonable officer would have decided that obtaining a warrant was impractical, it reversed Douds’s conviction.
The Court of Criminal Appeals acknowledged that, read in isolation, Douds’s first written motion could be construed as raising a challenge based on Officer Tran’s failure to obtain a warrant.8 But complaints cannot be considered in isolation. The reviewing court must consider the entire context of the suppression hearing. The evidence and arguments at the hearing were focused solely on whether Officer Tran reasonably believed Mrs. Douds was being transported for medical care. Douds and the State even submitted post-hearing trial briefs arguing the reasonableness of the officer’s belief. Douds never mentioned a general Fourth Amendment challenge and discussed Fourth Amendment law only briefly as part of his explanation for why the mandatory blood draw statute should be narrowly construed. The question of whether a warrant was required or the possibility of obtaining one was never discussed at all.
Although the Fourth Amendment was mentioned in passing, such a broad complaint cannot be said to have fairly raised a McNeely-type complaint. Not only did Douds himself limit all of his argument and evidence to the issue, but the State and the trial court did as well. No one considered at the time that Douds was raising any other complaint than the Transportation Code violation. Therefore, Douds did not preserve this error on appeal.
While it’s rather interesting to appellate attorneys, what relevance does this case have for the trial prosecutors out there? It is important to remember that the Court of Criminal Appeals can pick and choose its cases, unlike the lower courts, so while the intermediate appellate courts address preservation routinely, it much more rarely makes its way to Austin. This session has also been fairly light on opinions issued. For the Court to choose to address a simple error preservation issue particularly shows the importance it places on the issue.
Many suppression motions throw out a long laundry list of objections, complaining generally that the detention and/or stop and/or seizure and/or search and/or arrest and/or statements were all illegal. This can certainly be a challenge for the prosecutor attempting to prepare for the hearing. Indeed, some judges have been reluctant to ask a defendant to specify his precise complaint, leaving prosecutors guessing exactly what they are preparing for. The lower court opinion in Douds shows exactly the danger inherent in this for the State—the court ruled against the State because there was no evidence presented on an issue that was never brought up during the hearing.
Fortunately, the Court of Criminal Appeals recognized the impossible situation in which the lower court placed the State. Its opinion in Douds sends a message to trial courts and attorneys alike that complaints must be specific to preserve error. Prosecutors are entitled to know what arguments they are responding to and thus what evidence they must present to prevail. Trial courts are entitled to know what they are being asked to rule upon. And a good defense attorney should want to specify his exact complaint so the judge can rule on it. Trial attorneys should not be afraid to ask a defense attorney to clarify the exact nature of his complaint if they are left guessing what to respond to, and Douds gives trial courts support in requiring the defense attorney to do so.
Although it does not lay out any new law, Douds reminds attorneys and judges alike of the importance of a clear objection, both for its own sake and for the importance the appellate courts place on it. It is a useful tool to ensure that a trial prosecutor is able to spend his time preparing for the right issues and make sure suppression hearings are not mere exercises in frustration. Far from being an esoteric concept of appellate law, rules of error preservation can make a trial clearer on the ground so there are no nasty surprises later.
It is important to remember that this case was argued two years before McNeely, so the defense did not raise any arguments that the blood draw was not justified by exigent circumstances. That issue was thus not before the Court of Criminal Appeals here. This case will not be useful for arguing any McNeely or Villareal9 issues or in resolving when a warrantless blood draw was justified.
1 Douds v. State, No. PD-0857-14, 2015 WL 5981121, at *1 (Tex. Crim. App.—Oct. 14, 2015).
2 See Tex. Transp. Code §724.012(b)(1)(C), which requires an officer to collect a blood specimen if he reasonably believes that the suspect has caused a car accident that resulted in bodily injury to another person requiring that person to be transported to a medical facility for treatment.
3 Missouri v. McNeely, 133 S.Ct. 1552 (2013).
4 Douds v. State, No. 14-12-00642-CR, 2013 WL 5629818 (Tex. App.—Houston [14th Dist.] Oct. 15, 2013).
5 Douds v. State, 434 S.W.3d 842 (Tex. App.—Houston [14th Dist.] June 5, 2014).
6 Tex. R. App. P. 33.1(a)(1)(A).
7 Douds, slip op. at 8-99.
8 Douds, slip op. at 9-13.
9 State v. Villareal, ___ S.W.3d ___ (Tex. Crim. App. Dec. 16, 2015).