Evidentiary Issues Before Cas
EVIDENTIARY ISSUES BEFORE CAS Antonio Rigozzi1, Brianna Quinn2 If it is a miracle, any sort of evidence will answer, but if it is a fact, proof is necessary. Mark Twain Introductory Remarks Evidentiary issues, whilst sometimes overlooked in the wider scheme of an arbitra- tion, are often the very element upon which a party’s case will turn.3 Whilst one may arguably have the best entitlement to a particular right, or objectively the most just cause, it is the reality of arbitration (and in fact any legal proceedings) that such right or cause must be pursued with the aid of admissible and relevant evidence. The neces- sity of producing sufficient evidence and convincing the relevant arbitration tribunal that the alleged facts “are true, accurate and produce the consequence envisaged by the party”4 cannot be overstated. It is an unfortunate fact that, despite the merits of the 1 Antonio Rigozzi is Law Professor at the University of Neuchâtel Law School and is a founding Partner at LÉVY KAUFMANN-KOHLER, Geneva. 2 Brianna Quinn is an associate at LÉVY KAUFMANN-KOHLER, Geneva. 3 In fact it has been suggested that approximately 60 to 70% of cases in international arbitra- tions turn on facts rather than the application of the relevant principles of law. See Blackaby et al., Redfern and Hunter on International Arbitration, Fifth Edition, p. 384. It is submitted that such percentage might be even higher in sports disputes. 4 See CAS 2007/A/1380, MKE Ankaragücü Spor Kulübü v. S. 1 Antonio Rigozzi/Brianna Quinn claim in question, if a party is unable to provide evidence to the requisite standard of proof, or such evidence is deemed inadmissible, such party will be incapable of con- vincing the arbitrators that the disputed issue or issues in the case ought to be re- solved in its favour.
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