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Chapter 4 I The nature of sports required that the envisaged dispute resolution system be fast. This continues to be an important element, particularly when it Sports Arbitration and the Inherent Need I comes to disciplinary and eligibility decisions where it is neither possible nor desirable for an athlete to wait months (or even years) before knowing the for Speed and Effectiveness outcome of his or her case. Antonio Rigozzi* Indeed, sports disputes often involve questions of eligibility to compete in an event (whether in terms of the selection criteria of a relevant sport or as a result of a disciplinary sanction) and it is of no use to an athlete to be allowed to compete once the event is already over. It is an unfortunate reality that most athletes' careers are comparatively short, and thus it is important to ensure that there is a dispute resolution system that can deal How does sports arbitration work and what lessons can be drawn from it in with sports-related matters in the most efficient way possible. seeking to streamline and expedite arbitration in the broader sense? In addition to disciplinary and eligibility matters, the sports world needed a II_ INTRODUCTION forum that could deal efficiently with disputes arising from sports governance matters,3 and in connection with the hosting of events.4 There are many methods of dispute resolution in sport, perhaps the most well-known being arbitration before the Court of Arbitration for Sport With speed comes an inevitable limitation of the right to be heard. Hence, (CAS) and the Basketball Arbitral Tribunal (BAT). the key challenge for a sports arbitration body such as the CAS or BAT is to find the right balance between expeditiousness and the parties' (particularly Both these tribunals deal with financial disputes in the world of sport, the athletes') rights. however the CAS also deals with disciplinary matters, such as anti-doping disputes, and more general matters relating to the organisation of sports The manner and extent to which sports arbitration has managed to balance and the application of sports specific regulations. those inherently competing interests is certainly of relevance for more traditional forms of arbitration, which are often considered to have become Matters before the BAT are conducted according to the BAT Arbitration overly formalistic and thus to have 'betrayed' (or failed in achieving) the 1 Rules (BAT Rules), and those before the CAS according to the CAS Code original idea of arbitration.5 of Sports-related Arbitration (the CAS Code).2

Both systems have been extensively examined by commentators. Here, I will B. CAS in general discuss some of the main features of sports arbitration, both before the a. Structure , CAS and the BAT, which I think are of relevance for the topic of this book. In The CAS as we now know it is made up of two distinct bodies (Article Sl so doing, I will be guided by the following questions: CAS Code): Examples of expedited procedures already exist in the world of arbitration, > The International Council of Arbitration for Sport (ICAS); and in areas such as domain name and sports disputes. How do these work in practice and what lessons can we learn from them in seeking to streamline > The Court of Arbitration for Sport (CAS) proper. and expedite arbitration in the broader sense? What has experience taught 1. The ICAS us within these specific areas? Can the lessons learned be used to good advantage in crafting solutions fn the wider field of commercial or One could say that the ICAS is the CAS's "equivalent" of the ICC Court of treaty arbitration? Arbitration for ICC arbitration. Before examining the extent to which this equivalence is real, it is worth recalling the historical reasons behind the II__ COURT OF ARBITRATION FOR SPORT (CAS) creation of the ICAS. A. Raison d'etre The ICAS was created in 1994 as a way to structurally reduce the influence of the International Olympic Committee (IOC) on the CAS following the Sports arbitration was created by the sports-governing bodies to deal with Gunde/ decision.6 In Gunde/, the Swiss Supreme Court had stated that CAS the realities of a world that does not easily fit into the traditional state would not qualify as a genuine arbitration system if one of the parties to a court system. dispute before it had an overwhelming influence on the manner in which the The key historical reasons that sports arbitration was considered necessary panel hearing the case was composed. Back then, the IOC (potentially a were: (i) to avoid athletes bringing sports disputes before the state courts, party to disputes brought before the CAS) appointed all the individuals which would have disrupted the smooth running of competitions; and (ii) to appearing on the CAS list of arbitrators, from which panel members were provide for a measure of uniformity for athletes who were competing across (and still are) mandatorily to be appointed. jurisdictions with different systems of law. According to the CAS Code, the purpose of the ICAS is to "facilitate the resolution of sports-related disputes through arbitration or mediation and to

Partner, Levy Kaufmann-Kohler, Geneva, Switzerland

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safeguard the independence of CAS and the rights of parties". The ICAS is generally with all other sports-related disputes.10 Both divisions are headed also responsible for the administration and financing of the CAS (Article S2 by a President, who can undertake the initial steps in an arbitration before CAS Code). an arbitral panel is appointed. The ICAS is composed of 20 members who must be "experienced jurists". 3. The CAS Secretary General and the CAS Court Office The appointment of members is as follows: The CAS Secretary General supervises the CAS Court Office. In this sense his function is not fundamentally different from that of the Secretary > Four members are appointed by the International Federations; 7 General of the ICC Court of Arbitration with the following main exceptions: > Four members are appointed by the Association of the National (i) the CAS Secretary General is personally in charge of the scrutiny of the Olympic Committees (ANOC); awards; and (ii) fixes the amount of the arbitration costs.11 This > Four members are appointed by the International Olympic Committee concentration of prerogatives was originally intended to avoid delays, given (IOC); the paramount need for speed in sports arbitration, but the reality is that it > These 12 members then appoint another four members "after has probably had the opposite effect. Evidently, this particular feature of appropriate consultation with a view to safeguarding the interests of the CAS arbitration is not something that other arbitration institutions should athletes"; and take as an example. > These 16 members then appoint a further four members "chosen from 4. The CAS List of Arbitrators among personalities independent of the bodies designating the other The CAS maintains a closed list of arbitrators, from which the "Panels members of the ICAS" (Article S4 CAS Code). composed of one or three arbitrators" deciding the disputes are to be According to Article SS of the CAS Code, ICAS members are appointed for appointed (Article S3 CAS Code). renewable periods of four years and must sign a declaration "undertaking to As just seen, the arbitrators on the list are designated by the ICAS (Articles exercise their function personally, with total objectivity and independence in S6(3) and S14 CAS Code) and appear on the CAS list for one or several conformity with [the Code]." They are bound by confidentiality obligations, renewable period(s) of four years (Article SS CAS Code). To be considered and may not appear on the list of CAS arbitrators, or act as counsel to any for inclusion in the list, arbitrators must have appropriate legal training, party in proceedings before the CAS. recognised competence with regard to sports law and/or international The functions of the ICAS are: (i) adopting and amending the Code; 8 (ii) arbitration, a good knowledge of sport in general and a good command of electing (from within the ICAS members) the President and Vice-Presidents English or French (Article S13 CAS Code). of the ICAS as well as the Presidents and their deputies for both the The number 0f arbitrators has significantly increased over the years to take Ordinary and appeals divisions of the CAS; (iii) appointing and removing the into account: (i) the need to provide for a real choice;12 (ii) the increasing arbitrators and mediators who serve on the CAS closed list; (iv) deciding on number of cases; (iii) the risk of recurrent appointments; (iv) the need to challenges and requests for the removal of arbitrators from cases; (v) address gender imbalance; and (iv) geographical distribution. supervising the financing of CAS; (vi) appointing the CAS Secretary General; (vii) supervising the activities of the CAS Court Office; (viii) It remains to be seen whether the CAS list's extension still achieves what the providing for "regional or local, permanent or ad hoe arbitration"; (ix) Swiss Supreme Court had identified as the main justifications of its creating a legal aid fund and legal aid guidelines;9 and (x) taking "any other mandatory character, namely the need to: (i) ensure that the arbitrators are action which it deems necessary to protect the rights qf the parties and to experienced and knowledgeable in sports and arbitration matters; and (ii) promote the settlement of sports-related disputes through arbitration and promote the consistency of the case law. mediation" (Article S6 CAS Code). Before being confirmed to sit in a specific arbitration, CAS arbitrators must The ICAS operates either +n its full composition or through its Board (being sign a declaration of independence in which they also confirm that they the President and two Vice-Presidents of ICAS and the Presidents of the have sufficient time to devote to the matter. Arbitrators who fail to make CAS Ordinary and Appeals divisions). It meets "whenever the activity of the themselves available for appointment may theoretically risk not being 13 CAS so requires, but at least once a year" (Articles S7 and S9 of the Code). reconfirmed by ICAS. The Secretary General of CAS "takes part in the [ICAS's] decision-making with a consultative voice and acts as Secretary to ICAS [and the ICAS b. Legal Framework Board]" (Articles S8(4) and Sl0 CAS Code). The seat of both the ICAS and the CAS is Lausanne, Switzerland. Article R28 ofthe CAS Code further provides that the seat of all CAS Panels is in 2. The CAS Lausanne, irrespective of whether the hearing takes place outside CAS comprises two arbitration divisions: (i) the Appeals Arbitration Division, Switzerland. This is considered as a mandatory CAS rule - similar to the which - as the name suggests - deals with appeals from decisions of scrutiny of the award under Article 34 of the ICC Rules - which means that sports bodies; and (ii) the Ordinary Arbitration Division, which deals CAS will not administrate the arbitration if the parties were to decide that the seat of the arbitration is elsewhere.

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The main consequence of the seat being mandatorily fixed in Lausanne is distinctive aspects of the CAS Ordinary Procedure are that the arbitrators that all CAS proceedings will be governed by Swiss arbitration law, 14 notably must be selected from the CAS List (Article R38 CAS Code), that Swiss law Chapter 12 of the Swiss Private International Law Act (PILA). This is not an is applicable to the merits "by default", i.e. absent a choice of law by the insignificant choice, as Switzerland is known for being particularly parties (Article R45 CAS Code), and that the arbitration costs are arbitration friendly in terms of both arbitrability and the validity of significantly lower compared to those of the main institutions active in arbitration agreements. Jurisdictional issues will thus be resolved in a commercial arbitration. consistent way, ensuring that athletes around the world will have the same access to arbitration. Of greater interest for present purposes are the rules governing the CAS Appeals Procedure. CAS appeals arbitration deals with appeals filed against As far as the arbitral procedure is concerned, the application of Swiss decisions issued by other arbitral or disciplinary tribunals, typically either arbitration law grants a great deal of discretion to the arbitrators, while national sports arbitration bodies or the internal disciplinary or judicial mandatorily requiring the observance of equal treatment, the parties' right bodies of international sports federations. to be heard and procedural public policy. The way in which this procedural discretion is exercised by the CAS will be discussed in the next sub-sections. c: CAS appeals proceedings From a sports arbitration perspective, the most notable features of Swiss As mentioned; the rules applicable to CAS appeals proceedings are found in arbitration law in this respect are that: (i) the right to be heard does not Article R47 et seq of the CAS Code. CAS appeals arbitration is a de novo include the right to an oral hearing; (ii) the right to produce evidence must procedure, meaning that the arbitral tribunal has "full power to review the be exercised in accordance with the applicable arbitration rules; (iii) the facts and the law" (Article R57 CAS Code), even when the lower instance right to invoke a breach of procedural rights is deemed to have been waived body was itself an arbitral tribunal.17 if the breach is not immediately raised during the arbitration; and (iv) there is no absolute right to a reasoned award. Perhaps the most important aspect of CAS appeals proceedings is that they are punctuated by short (and generally strict) deadlines. This is The fact that the seat is in Switzerland is also relevant with respect to the particularly true of the time limit to appeal the relevant decision, as the CAS supervisory role of Swiss courts. With specific respect to speed and will not hear an appeal that is out of time. efficiency, it is worth noting that there is no immediate appeal against a decision on the challenge of an arbitrator. The Swiss Supreme Court applies a. Time Limit to Appeal and Written Phase this principle, which was developed to prevent dilatory appeals in In the absence of a time limit set in the statutes or regulations of a commercial cases, also in sports arbitration, even though this might lead to federation (or absent a previous agreement), the default time limit to bring a situation where an athlete is not in a position to have his or her challenge an appeal is 21 days from the receipt of the impugned decision (Article R49 of an arbitrator heard by a court before he or she has actually already CAS Code). Most sports federations have adopted the 21-day time limit for served the ban. appeal, reflecting the CAS Code's default rule, in their own regulations. Finally, under Swiss law the action to set aside the award is a "one shot" However, it should be noted that some federations' regulations provide for appeal, to be brought directly before the Swiss Supreme Court. The Court much shorter time limits: the UEFA Statutes, for instance, require that has proven to be sufficiently fast in ensuring that matters are finally resolved appeals to the CAS be filed within a 10-day time limit.18 within a reasonable time frame and it is very rare that the stay of a CAS In commercial arbitration, it is rare for the arbitration agreement to contain award is ordered during setting aside proceedings. Furthermore, the very time limits. Where time limits do exist, such agreements are not narrow interpretation of the concept of public policy that the Court has unproblematic, in particular as to the question of whether the time limit developed for the purposes of reviewing awards in setting aside must be interpreted as an issue of admissibility or jurisdiction.19 In sports proceedings entails that the likelihood of an award being set aside is arbitration, the time limit to appeal is considered to be preclusive in nature, quite low. 15 meaning that the matter cannot be appealed at a later point in time; it is 20 c. Arbitration Proceedings res Judicata. The CAS Code contains two distinct sets of procedural rules: the provisions After the filing of the Statement of Appeal (the equivalent of a request for governing the CAS Ordinary Procedure (Articles R38 et seq), which apply in arbitration) there is only one exchange of written submissions by the parties cases allocated to the CAS Ordinary Division, and the CAS Appeals (the Appeal Brief and the Answer). Exceptions are possible if the matter is Procedure rules (Articles R47 et seq), which apply in cases where a party not urgent or if further information is essential to deciding the dispute, but challenges a decision by a sports-governing body, allocated to the CAS this is rarely ordered in practice. 16 Appeals Division. The deadlines for the parties to file their written submissions are short, The CAS Ordinary Arbitration Procedure is not fundamentally different from reflecting the need to bring the matter to a close quickly. The Appeal Brief traditional commercial arbitration proceedings, which is not a surprise as is to be filed within 10 days of the deadline to file the Statement of Appeal the cases that are allocated to the Ordinary Division often concern and the respondent is required to file its Answer within 20 days of receipt of commercial disputes which happen to be related to sport. The only the Appeal Brief.21 Short extensions of these deadlines are possible (and not

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uncommon) but they must be requested before the expiry of the initial ground that it ensures that the arbitrators are specialists in the area of deadline. Generally, the CAS will accommodate a first extension request of sports and will thus be able to issue fast and consistent decisions.24 In recent up to five working days, but additional or longer extensions are only granted years challenges to the legitimacy of the CAS framework, including the restrictively, either where the opposing party has agreed or where justified closed list of arbitrators, have arisen from the fallout of a case involving grounds have been demonstrated (e.g. where documents German ice skater Claudia Pechstein, who had her doping sanction upheld require translation). by CAS. 25 Ms Pechstein challenged the CAS framework through both the A paramount consideration is that all the evidence that a party wishes to Swiss and the German courts, and in June of last year the German Supreme rely upon must be put forward with its first (and generally final) written Court ultimately dismissed her challenges, finding that the CAS was a 26 submission. There are very limited exceptions to this requirement. If a party genuine arbitral tribunal. Yet, the issue is not finally resolved as the case is wishes to introduce new evidence after the filing of its written submission currently before the German Constitutional Court, and a separate (absent the opposing party's consent) it is necessary to demonstrate that application by Ms Pechstein (against Switzerland) is also still pending in the European Court of Human Rights.27 exceptional circumstances exist entitling the party in question to supplement its filing (e.g. commonly the party would have to convince the A relatively recent reform in the CAS system has been the prohibition on panel that the new evidence either did not exist or could not have been arbitrators from also acting as counsel for parties in CAS arbitrations.28 This identified at the time of the original filing).22 is a welcome development in the relatively specialised area of sports The short time limits have the effect of limiting the sophistication of written arbitration as it reduces the possibility and perception of conflict of interest submissions, however a positive consequence of the restrictive approach of issues. It is important to note however that this prohibition is only effective CAS arbitration to allowing further submissions is that parties are forced to against the arbitrator ad personam and does not extend to the law firm be diligent in their evidence gathering. where the arbitrator works. The nomination of the appellant's arbitrator in appeal proceedings must be b. Hearing made with the filing of the Statement of Appeal. The Statement of Appeal is Unless both parties indicate that a hearing is not necessary (which is rare), then communicated to the opposing party which is given 10 days to or in the unlikely event that the panel indicates that it does not consider it nominate its own arbitrator. One disadvantage for the respondent in this necessary, a hearing is normally held in Lausanne. In the vast majority of procedure is that it is required to select an arbitrator without having had the CAS appeals arbitrations, the hearing is scheduled for a single day, unless opportunity to see the Appeal Brief and thus without knowing exactly the the case is particularly complicated (with a large number of witnesses and/ case that will be put forward by the appellant. This procedural imbalance or experts). could (and arguably should) be cured by introducing a rule providing that the time limit to nominate the respondent's arbitrator runs from the The usual format of the hearing is to have a relatively short opening notification of the Appeal Brief (and not the Statement of Appeal). followed by an evidentiary phase where witnesses and experts are heard before both parties almost immediately present their oral closing submissions. Under Article R54 of the CAS Code the CAS Court Office (through the As time considerations routinely arise, this format forces the parties to focus President of the CAS Appeals Division) appoints the Panel President after on the most important aspects of the case and the most relevant witnesses having consulted with the two party appointed arbitrators. This is a and experts. Moreover, the panel "may decide to conduct the hearing by controversial rule in CAS appeals arbitration. Historically, this process was video-conference or to hear some of the parties, witnesses and experts via implemented to avoid the well-known delays that chair selection can entail tele-conference or video-conference. With the agreement of the parties, [it] when the parties' appointed arbitrators have to agree, in particular when it may also exempt a witness or expert from appearing at the hearing if [he/ is accepted that they will consult with the parties to make sure that the she] has previously filed a statement" (Article R44.2 CAS Code). chair they select is acceptable to both of them. No hearing transcript is provided, but the hearing is recorded and the audio However, as the appointment by the CAS can still take quite a long time, file is made available to the parties upon request. Save for the rare case of one fails to see why the party appointed arbitrators could not be given a post-hearing briefs in CAS appeals arbitrations, the principal relevance of short time limit to agree upon a panel president before the CAS Court the audio is in case of an appeal to the Swiss Supreme Court. Office intervenes.

c. Appointment of Arbitrators d. Challenge of Arbitrators Article R33 of the CAS Code provides that "[e]very arbitrator shall appear The CAS Code's time limit of seven days to bring a challenge against an on the list drawn up by the ICAS", i.e. the CAS List of Arbitrators. As arbitrator is very short, so it requires the parties' counsel to act quickly to mentioned, this is a closed list (currently containing 368 names)23 and all investigate any potential conflicts. arbitrators who sit on CAS panels must be appointed from this list. The CAS In the event of a challenge a final decision is taken by ICAS. The reasoning in policy of maintaining a closed list of arbitrators effectively limits the these decisions (which are not published) tends not to be very fundamental freedom of the parties to appoint the arbitrator of their choice, sophisticated. This is unfortunate as experience shows that sports but was upheld by the Swiss Supreme Court in the Lazutina case on the

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arbitration raises interesting issues, in particular with respect to (i) recurrent three months after the transfer of the file to the Panel'.31 In practice, unless appointments and (ii) public statements by arbitrators on issues arguably there is an obvious need to issue a decision very quickly, in which case the 29 related to the subject matter of the proceedings. operative part of the award is issued firs( the CAS Code-prescribed time Recurrent appointments can be particularly problematic as the sports­ limit to communicate the award is very rarely met. governing bodies are de facto 'repeat users' of CAS arbitration and are thus The issuance of an unreasoned award (consisting only of the operative part) unavoidably perceived as more 'interesting' for arbitrators in terms of is a necessity in some CAS cases and could potentially be an avenue worth possible future appointments. While the CAS has managed to have a exploring also in commercial arbitration in order to accelerate the process. tailor-made exception included in footnote 5 of the IBA Guidelines on After all, state courts routinely adjudicate cases this way without any due Conflicts of Interest in International Arbitration (2014),30 it has also realised process concerns being voiced. With that said, it is also true that the more the potentially damaging nature of recurrent appointments, and has complex the cases are, the more likely it is that some potentially pivotal enacted a guideline that requires the arbitrators to systematically disclose issues will be fully appreciated only in the course of the award-drafting their previous appointments by the same parties and the same lawyers. process. In any event, the notification of the operative part of the award As noted above, institutional decisions on arbitrator challenges are not should not become an incentive to delay the notification of the reasons. immediately appealable. This means that the independence and impartiality Indeed, it is only with the notification of the reasons that an appeal against of the arbitrators can only be reviewed in the context of an application for the award is possible.32 Any undue delay in the issuance of the reasons the annulment of the award. In sports matters, a court judgment on the could potentially deprive a party (for instance an athlete serving a ban) of regularity of the composition of the Panel may thus not be available within a any meaningful right to challenge the award.33 meaningful time frame (for instance because the ban will have already been If the arbitrators do not avail themselves of the possibility to issue the fully served by then). operative part of the award first, Article R59(5) provides that the three­ month time limit to render the full award 'may be extended by the President e. Applicable Law of the Appeals Arbitration Division upon a reasoned request from the With regard to the applicable substantive law, Article R58 of the CAS Code President of the Panel'. As a matter of fact, the time limit is routinely provides that the arbitral tribunal 'shall decide the dispute according to the extended sua sponte by the CAS (as the ICC Court may also do).34 applicable regulations and, subsidiarily, to the rules of law chosen by the The CAS is increasingly criticised for delays in rendering the awards. The parties or, in the absence of such a choice, according to the law of the reasons for such delays are multiple: (i) the cases have become increasingly country in which the federation, association or sports-related body which complex and the parties' representation increasingly sophisticated, (ii) the has issued the challenged decision is domiciled or according to the rules of parties understandably tend to appoint the most experienced arbitrators on law the Panel deems appropriate. In the latter case, the Panel shall give the list, who in turn are busy people, (iii) scrutiny of all the awards by a reasons for its decision'. In practice, the vast majority of issues will be single person (the Secretary General, as provided in Article R59(2) of the decided according to the regulations each international federation has CAS Code) is no longer feasible within short timeframes in view of the enacted, however as n;:iost international sports federations are domiciled in growth in the caseload. While this last aspect could be easily fixed, a Switzerland, Swiss law is also applied as the substantive law in the majority solution to the arbitrators' delays is less straightforward to conceive. A of cases before the CAS. reduction of the arbitrators' compensation, in line with the practice of other Article R58 is a particularly convoluted choice-of-law provision, and its arbitral institutions, does not seem realistic. Indeed, CAS hourly rates are application is far from being straightforward. It is my understanding that its already far from being competitive and the CAS Court Office even retains wording is meant to reflect that sports disputes should be primarily the power to reduce the applicable rates "if circumstances make this resolved according to the relevant sports rules, without completely ruling necessary".35 Reducing the fees even further might have the undesirable out the application of national law, and at the same time avoiding that consequence of discouraging experienced arbitrators from sitting on CAS national idiosyncrasies result in an uneven field of play as far as the panels. Exclusion from the list of arbitrators would seem to be an overly treatment of athletes competing internationally against each other is draconian sanction, in particular without prior formal notice. concerned. As the foregoing makes clear, Article R58's rule is not something that ought to be replicated in commercial arbitration, where such need for --l!:. Expedited Procedure consistency does not exist. An additional feature of CAS arbitration is the possibility for a CAS panel to proceed on an expedited basis, provided the parties have all so agreed f. Time Limit to Render the Award (Article R52(4) CAS Code).36 The tight time limits for the various procedural steps discussed above would Where the parties do agree, the Panel (or the relevant Division President) make little sense, for the purpose of ensuring a speedy resolution of the will then issue directions to be followed for the procedure. This can be dispute, if the arbitrators would not then proceed to render an award in a particularly useful in the context of (i) sporting tournaments and timely fashion. Hence, Article R59(5) of the CAS Code provides that '[t]he operative part of the award shall be communicated to the parties within

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(ii) elections, where both the individual/team and the event organiser/ President have the possibility to issue decisions on an ex parte basis (Article governing body may well have a shared interest in a speedy resolution of R37 (fourth paragraph) CAS Code). Moreover, exchanges of procedural the dispute. correspondence can be done by fax and/or e-mail (Article R31 CAS Code) enabling the CAS to issue decisions in exceptionally short time frames, h. Provisional Measures without even having to decide on an ex parte basis.39 Under Swiss law arbitral tribunals and the state courts have concurrent With respect to effectiveness, it is true that only state courts have the jurisdiction to grant interim measures. Article 183(1) PILA provides that power to compel a party to comply with an order on provisional measures. unless the parties provide otherwise, the 'arbitral tribunal may [ ... ] order However, the CAS is still an effective forum for provisional measures provisional [or conservatory] measures', which may be taken to imply that predominantly because sports governing bodies spontaneously abide by its until the moment the arbitral tribunal is constituted, jurisdiction to issue orders, meaning that there is no need to resort to state courts to enforce such orders lies exclusively with the state courts.37 such orders. The intervention of a national court even for the purposes of provisional It is doubtful that arbitral institutions other than the CAS will be able to measures before the constitution of the arbitral tribunal. can be problematic provide for such effectiveness, which derives from the specificities of the in the context of sports disputes as it can irremediably affect equal pyramidal organisation of sports and the requirement (as set out in the treatment among athletes, in particular if an athlete happens to be majority of international federations' regulations) that CAS decisions are domiciled in the same country as the relevant governing body or the respected. However, it is also true that the need to avoid national cowt country in which the relevant competition is taking place. To overcome this intervention may be less of a pressing concern in commercial arbitration. potential difficulty, the CAS Code provides that provisional and conservatory measures may be ordered by the arbitral institution (namely the president of the relevant CAS Division), pending the constitution of the D. CAS Ad Hoe Division(s) panel (Article R37 CAS Code). While this power is not necessarily in line There are situations where even the possibility to agree on an expedited with the wording of Article 183(1) PILA, which refers to the "tribunal" and procedure does not allow for the timely adjudication of a sports dispute and not to the institution, to the extent the institutional body in charge of a "resolution" through provisional measures is not satisfactory, in particular making the order offers sufficient guarantees of independence, this pre­ given the stakes. The most obvious example regards disputes that might arbitral mechanism is accepted as valid under Swiss law. Indeed, this system arise during a mega event like the Olympics and which are extremely has been used at CAS level for several years without problems and has now time-sensitive. As they often affect the athletes' right to participate in the been replicated by a significant number of traditional commercial arbitration event and given the intrinsically inflexible nature of the schedule of institutions, which have put in place an emergency arbitration system (see, competitions, the dispute must be resolved within the shortest possible for instance, Article 29 ICC Rules). time frame to avoid disrupting the event (either by a late decision on the merits or by a decision on provisional measures that would then CAS arbitration has pushed the principle of party autonomy a step further be repealed). with regard to provisional measures, as Article R37 (third paragraph) provides that in agreeing to submit to arbitration under the CAS Code "the Starting with the 1996 Summer Olympic Games in Atlanta, the IOC has parties expressly waive their rights to request any such measures from state requested the CAS to constitute an ad hoe division of a selected number of authorities or tribunals". The validity and enforceability of a waiver of the arbitrators who will go on site and be available to adjudicate disputes parties' right of access to the state courts is controversial and the limited according to a very expedited arbitration procedure. Since then, a so-called Swiss jurisprudence in point as well as the opinions expressed by some CAS ad hoe division has been put in place for every Olympic Games (both commentators, suggest that the waiver is only enforceable when it is the winter and the summer games), and the same 'device' was extended to included in the arbitration agreement itself (which is understood to be the other mega events like the Commonwealth Games (since 2014). the Asian case for Article R37(3), by virtue of the governing sports regulations' Games (since 2014), the FIFA World Cup (since 2006) and the UEFA reference to the CAS Code).38 However, it is submitted that the pertinent European Championship (since 2012).4° For every such event the ICAS (and critical) issue in sports arbitration is the lack of consent, as it can enacts a specific edition of the Ad Hoe CAS Rules and selects the CAS hardly be said that the athletes, who have no choice but to agree to CAS arbitrators who will be dispatched on site.41 Over the years, the Ad Hoe arbitration, have really consented to a waiver contained in the CAS Division has been chaired by very prominent figures of international arbitration rules. Such lack of (real) consent is justifiable only to the extent arbitration (including Prof. Gabrielle Kaufmann-Kohler and the late Dr. that the arbitral mechanism in place (either the Panel or, prior to its Robert Briner, former President of the ICC Court of Arbitration). constitution, the Division President) is in a position to deal efficiently with Again, the seat of the arbitration is Lausanne, irrespective of where the the request for provisional measures and to offer the parties an effective competition takes place. This has important benefits, for instance allowing remedy in case of real urgency and need. Efficiency relates both to the the CAS Ad Hoe Division for the 2006 Winter Olympics in Torino, Italy to speed of the process and to its effectiveness. issue decisions on provisional measures even though under Italian law As far as speed is concerned, not only can the CAS act at the same speed arbitrators would not have had the power to order such measures.42 as state courts, but in urgent cases, both the Panel and the Division

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The importance of the role of the CAS ad hoe divisions for the Olympics has inescapable extent, a "compromise" between due process and fast become evident through the work of the earliest ad hoe divisions, which proceedings.48 When a quick decision is as important as a correct decision earned a solid reputation for their expertise, fairness and expeditious the parties can validly agree to reduce their procedural rights in order to decision-making.43 In the above mentioned Lazutina decision, the Swiss expedite the process.49 Supreme Court observed that: If this premise is accepted, then there is room to rethink what is now In competitive sport, particularly the Olympic Games, it is vital both for considered the standard(ised) conduct of international arbitration athletes and for the smooth running of events, that disputes are resolved proceedings and to allow the parties who want a quick decision to willingly quickly, simply, flexibly and inexpensively by experts familiar with both relinquish part of their procedural rights. This could open a variety of new legal and sports-related issues .... Thanks in particular to the creation of ad hoe divisions, [the CASJ enables the parties concerned to obtain a decision opportunities that would give new vitality to the paramount principle of quickly, following a hearing conducted by persons with legal training and party autonomy, which underpins the idea of arbitration. Further inspiration recognised expertise in the field of sport, while protecting their right to a could be found in the rules of the Basketball Arbitral Tribunal (BAT), to 44 fair hearing. · which I will now turn. The proceedings before the Ad Hoe Division are aimed at issuing a final reasoned decision on the merits after hearing from the parties within a time m__ BASKETBALL ARBITRAL TRIBUNAL (BAT) limit of 24 hours from the filing of the appeal.45 To constitute a tribunal and A. Raison d'etre to render a decision in such a time frame is a striking feat which is and most The BAT, previously known as the FIBA (Federation lnternationale de likely will remain unprecedented in international arbitration. Such a Basketball Amateur) Arbitral Tribunal or FAT, was established in 2007 with "performance-enhanced arbitration"46 is possible (i) because jurisdictional the principal aim of offering.a mechanism for the independent, simple, quick hurdles are reduced by the mandatory signing of an arbitration agreement and inexpensive resolution of contractual disputes arising in the world of in the Entry Form to the Olympics; and (ii) by the operation of the following basketball.50 procedural rules, 47 which the parties accept when entering the competition: In providing an international forum to resolve such disputes, the BAT sought > The Panel is directly appointed by the President of the Division with no to overcome (unfortunately common) situations where: (i) a party was input whatsoever by the parties (Article 11 CAS Ad Hoe Rules). This reluctant to bring a case against another party in a particular country or it appointment is based on a preventive conflict check and, if properly was difficult to bring such a case due to the characteristics of and applied, will de facto exclude any challenge. unfamiliarity with the legal system of that country; and/or (ii) a party relied > Standard forms exist to make sure that an application is complete and on the inconvenience of state court proceedings to avoid honouring their can be notified to the respondents without delay. contractual commitments (knowing that the other party would not be > The President of the Division will sua sponte also notify interested willing to file a claim). parties that might be affected by the case even if they are not listed as As discussed below, with BAT, parties have a simple and accessible means respondent by the applicant. of dispute resolution, together with an effective internal enforcement > Notification can be made by either e-mail or fax and athletes can be mechanism. notified through their National Olympic Committee or National Federation (Article 9 CAS Ad Hoe Rules). s. BAT in general > The procedure strieto sensu is very flexible; the Panel is free to tailor it to As noted in a prior publication on the BAT: 51 the level of urgency: "The Panel organises the procedure as it considers By all standards, the BAT has been a successful 'experiment'. So much so appropriate while taking into account the specific needs and that it is now a well-established arbitral institution and a significant circumstances of the case, the interests of the parties, in particular their presence in the landscape of sports dispute resolution. More importantly, it right to be heard, and the particular constraints of speed and efficiency has undeniably made a difference in the world of professional basketball, specific to the present ad hoe procedure. The Panel shall have full helping players, coaches and agents to keep clubs (and vice versa) to their control over the evidentiary proceedings" (Article 15b) CAS Ad Hoe contractual engagements. A sports agent declared in 2011 that, by then, Rules). A hearing is held on a very short notice when appropriate but is 99% of his clients had a FAT /BAT clause in their contracts. The BAT caseload statistics speak for themselves: from 2 requests for arbitration not mandatory. filed in 2007, the tribunal has gone on to register 150 in 2015, with the total > The issue of the applicable law is governed by a more straightforward number of requests filed adding up to 793 over that nine-year period. choice of law (Article 17 CAS Ad Hoe Rules) than that contained in Article R58 CAS Code, without reference to any national law (the a. The Nature of Cases before the BAT contents of which might be difficult to establish without delays). The BAT deals solely with contractual disputes, and the FIBA Regulations It could be asked whether such a compression of the parties' procedural expressly provide that FIBA, its Zones and/or their respective divisions are rights is still compatible with the concept of arbitration. It has been not directly involved in the disputes brought before the BAT.52 convincingly suggested that any adjudicative process constitutes, to an

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Thus, while FIBA continues to deal with disciplinary, eligibility and technical a. Sole Arbitrators, Appointment by Rotation and Closed List disputes, the BAT is tasked with enforcing - through voluntary arbitration As mentioned above, BAT arbitrators are appointed by the President to - basketball parties' contractual obligations. hear cases on a rotational basis. All BAT cases are conducted by a Sole b. Structure and Organisation Arbitrator from the closed list of BAT arbitrators (Article 8.1 BAT Rules). Although it was established by FIBA, the BAT is designed to be self­ The number of cases that BAT arbitrators deal with each year - in addition financings3 and, as mentioned, FIBA and its related parties do not take part to the requirement that they have legal training and experience in sport in the relevant disputes. - means that each case is decided by an arbitrator who has (or quickly comes to have) quite specialised knowledge in the field of basketball In terms of its structure, the BAT is composed of a President, Vice­ contractual disputes. Indeed, BAT arbitrators are regularly exposed to President, and a roster of arbitrators who are appointed to hear cases on a recurrent issues and, through this, come to learn and expect certain rotating basis.s4 intricacies of the basketball world that might be missed were a closed list The BAT President and Vice-President are appointed by FIBA for a not used. renewable term of four years and are required to have legal training_ss The While this feature is therefore very useful in the basketball setting, it is less duties of the BAT President are to: (i) ensure the proper functioning of the relevant to general commercial arbitration - unless, of course, specialised BAT (including with respect to administration and the approval of tribunals were established to deal with particular (and recurrent) types amendments to the BAT Rules); (ii) establish a list of at least five arbitrators of disputes. for a renewable term of two years and to re-appoint or remove arbitrators from the list; (iii) appoint, on a rotational basis, a BAT arbitrator to each case b. Single Exchange of Submissions; Procedural Orders filed with the BAT; (iv) establish a system of remuneration for the arbitrators; and (v) exercise the functions assigned to the President under In order to achieve its stated aim of having simple, quick and inexpensive the BAT Rules. 56 arbitration proceedings, the general rule in BAT cases is that there is only one exchange of written submissions.61 According to the FIBA Regulations, each BAT arbitrator is required to have "legal training and experience with regard to sport".57 At present there are With that said, BAT arbitrators are authorised to issue procedural orders seven arbitrators on the BAT list.sa and, in particular, to 'order the production of (additional) evidence or the parties' responses to specific questions'.62 This faculty is often used by BAT Like CAS, the BAT is seated in Switzerland (in Geneva), and thus benefits arbitrators to delimit the issues in a case and to ensure that the most from the above-mentioned advantages of the Swiss arbitral system.59 relevant facts and evidence are brought forward in the proceedings. Moreover, the BAT operates according to the BAT Arbitration Rules, which, c. Decision as discussed in the following section, contain several features designed to ex aequo et bono promote efficiency and expeditiousness. Perhaps one of the most distinctive features of BAT arbitration is that, as a rule, BAT arbitrators decide disputes ex aequo et bono.63 Finally, the administrative organisation of the BAT is both effective and efficient.60 Arbitrators have access to an online platform which contains all Indeed, according to the BAT Rules: information necessary for the progression of cases, and proceedings are 15.1 Unless the parties have agreed otherwise, the Arbitrator shall decide conducted primarily by e-mail, adding to the ease of resolving disputes. the dispute ex aequo et bono, applying general considerations of justice and fairness without reference to any particular national or c. Noteworthy features of BAT arbitration international law BAT arbitration has a number of interesting features designed to streamline 15.2 If according to the parties' agreement the Arbitrator is not authorised to decide ex aequo et bono, he/she shall decide the dispute according the arbitral process. to the rules of law chosen by the parties or, in the absence of such a The Preamble to the BAT Rules summarises these features, and the choice, according to such rules of law he/she deems appropriate underlying 'BAT philosophy', in the following terms: The key benefit of this is obvious, namely that there is no need for the Parties wishing to have their disputes decided by the BAT recognise that arbitrators to delve into intricate issues of national law (and perhaps even the BAT Arbitration Rules (hereinafter the "Rules") are designed to provide be required to review expert opinions on same). for a simple, quick and inexpensive means to resolve these disputes. As a consequence, these Rules require cooperation by the parties and their Considering that BAT arbitrations concern coaches, clubs, players and 64 counsel or representative, in particular with respect to the limited number agents from all around the world, this is certainly a helpful feature. In terms of written submissions (as a rule one submission per party) and the short of whether ex o2quo decisions could be useful elsewhere, it is notable that time limits to be observed. In the interest of speed, the parties recognise the transnational nature of modern commercial arbitration lends itself quite that BAT arbitration proceedings are conducted before a single arbitrator well to this type of dispute resolution. Indeed, while many lawyers are appointed by the BAT President, that the BAT arbitrators decide ex aequo uncomfortable with having a case decided outside of traditional legal et bono (see Article 15.1 below) and that hearings will be held only upon a decision by the Arbitrator. frameworks on the basis of equitable considerations, the most important users of arbitration - the parties - may be quite happy with this as a

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solution. That said, one should not overlook that the nature of ex aequo f. Internal enforcement mechanism decisions may be difficult to grasp in advance, and any party is likely to be As with CAS, one of the most advantageous features of BAT arbitration is unhappy with an equitable decision where it would have otherwise been the relative ease of enforcement. In fact BAT arbitration has an effective able to win a case on a technical and/or national point of law. and well-utilised internal enforcement system.

d. Proceedings Conducted by e-mail, in English Specifically, according to Articles 3-335 to 3-337 of the FIBA Internal As a rule, and to the extent possible, BAT proceedings are conducted by Regulations (Book 3) a party can be sanctioned if it fails to honour a BAT e-mail from the very beginning of the procedure (i.e. the filing the Request award. Sanctions are serious and include: (i) monetary fines, (ii) withdrawal for Arbitration) (Article 6.1 BAT Rules). 65 of FIBA licences; (iii) a ban on international transfers of players; (iv) a ban on participation in international competitions; and (v) a ban on the Furthermore, the working language of BAT is English and documents registration of new players (see Article 3-335 of the FIBA Internal provided to BAT in a different language must be accompanied by a certified Regulations (Book 3)). While this feature is worth noting insofar as the translation unless the Arbitrator decides otherwise (Article 4 BAT Rules).66 efficiency of BAT arbitration is concerned, it is clearly much less relevant - The standard use of one language - and the clear rules in this respect and transferable - to international commercial arbitration. - add to the efficiency of proceedings. This feature is also useful to those wishing to learn more about BAT arbitration and its "jurisprudence" (to the ~ Notification of Awards extent one can speak of jurisprudence in ex aequo et bono arbitration) - as In a new development in the 2017 BAT Rules, notification of the award has awards are all published in the same language. also become more streamlined, as follows:

e. Unreasoned Awards, No Hearings, Time Limit to Render the Award BAT awards shall be deemed to have been made at the seat of the BAT and and Costs shall be final and binding upon communication of the award to the parties by e-mail, fax, courier or registered letter, whichever comes first. If the Again to save both costs and time, the BAT has established the following award cannot be delivered to a party (or a third-party appointed under rules: Article 6.4), the award shall be final and binding for that party if and when published on the website of FIBA, provided that the party was duly notified > In addition to only having one round of submissions, "no hearings are of the arbitration and of the appointment of the arbitrator. held in [BAT] arbitration proceedings unless the Arbitrator decides to hold a hearing after consultation with the parties" (Article 13.1 BAT While this development is quite novel and useful in the world of basketball Rules). arbitration, its success is also highly dependent on the internal enforcement mechanisms in BAT arbitration. Indeed, as noted above, FIBA can ensure > The BAT Rules provide that the Arbitrator shall endeavour to render the that once a party is "notified", sanctions can be used in order to ensure a award within six weeks from the completion of the arbitral proceedings party's compliance with the award. or payment of any outstanding advance on costs, whichever comes last (Article 16.3 BAT Rules). h. Publication of Awards To keep party costs under control, the BAT Rules provide for a cap on > Finally, according to Article 16.4 BAT Rules, BAT awards are not confidential the maximum contribution to "a party's reasonable legal fees and other unless ordered so by the Arbitrator or the BAT President.68 expenses" (Article 17.4 BAT Rules). BAT's standard practice is to publish awards on the FIBA website as soon as > Only the operative part of the award (i.e. the ruling without the reasons) possible after they have been issued, thus BAT awards (where reasoned) is issued where the value of the dispute does not exceed €100,000. A are readily accessible by the public. This is clearly beneficial and, with party may, however, request a reasoned award within 10 days after the appropriate adjustments to take into account confidentiality concerns, notification of the decision, which will be subject to the payment of an would be equally useful in the context of commercial arbitration, where additional advance on costs (Article 16.2 BAT Rules). clear principles and app1"1cations of law could be solidified through a It has been reported that the cumulative result of these features is that the non-binding system of precedent. average duration of BAT arbitrations is just over six months (2014 figures), 67 and the cost/value ratio of cases a moderate 5.3% (also in 2014). o. Exporting BAT's experience In view of these statistics, it is worth considering whether similar features The experience of the BAT, and in particular the possibility to have the could be useful in commercial arbitration. While perhaps not realistic for dispute resolved on an ex aequo et bona basis, has been recently made complex arbitrations, smaller disputes, particularly in consumer law settings available to a wider range of users by the Court of Innovative Arbitration and other comparable legal disputes, could benefit significantly. (COIA).69 On the introductory page of COIA's website one can read the following statement: Classical arbitration tends to be more complex and expensive than it should be. It is sometimes too similar to court proceedings and suffers from "over-lawyering". Moreover, arbitrators are frequently asked to deal with

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jurisdictions in which they have not been trained, resulting in additional 13. As the ICAS does not provide any explanation with respect to the removal of an arbitrator from delays and costs. COIA tackles these problems by going back to the roots the list, it is difficult to know whether there are cases where an arbitrator has been removed due of arbitration: to his or her lack of availability or other considerations.

COIA encourages parties to seek a decision ex aequo et bono, i.e. 14. If both parties were domiciled in Switzerland at the time of the conclusion of the arbitration agreement the arbitration will be governed by Swiss domestic arbitration law, namely Part 3 of according to the contract and general considerations of justice and the Code of Civil Procedure. fairness. The two model arbitration clauses (before and after a dispute has 15. For a recent statistical study of Swiss Supreme Court decisions in setting aside proceedings, arisen) therefore expressly authorise the Arbitrator to decide ex aequo et distinguishing between sports and commercial arbitration awards, see Felix Dasser and Piotr The parties can rely on the unparalleled experience of COIA:s bono. Wojtowicz, "Challenges of Swiss Arbitral Awards - Updated and Extended Statistical Data as of Arbitrators and its Secretariat, who have handled more than 700 ex aequo 2015", ASA Bulletin, 2016, 34, pp. 280-300. For a comprehensive analysis of the action to set et bono arbitrations to date.70 aside before the Swiss Supreme Court, see Gabrielle Kaufmann-Kohler/Antonio Rigozzi, Interna­ tional Arbitration - Law and Practice in Switzerland, Oxford University Press, Oxford, 2015, pp. In addition, COIA's rules and procedures provide for a simple and efficient 421-508. process, no matter whether parties seek ex aequo et bona adjudication. 16. CAS additionally provides for Ad Hoe expedited Arbitration at major sporting events (e.g. the Among its many benefits, this means a sole arbitrator and, unless the Olympic Games and FIFA World Cups), as discussed further below Section II.D. arbitrator decides otherwise, only one exchange of submissions. Also, there is typically no document production phase. 17. Frcim this perspective, CAS appeals proceedings differ from the ICSID annulment mechanism (Article 52 ICSID Convention), which is characterised by a narrow scope of appeal. On the Hearings will be held on an as needed basis only. other hand, CAS awards are still subject to setting aside proceedings before the Swiss Supreme Court. Whether and to what extent this new kind of arbitration will be successful 18. Article 62 UEFA Statutes. The UCI Regulations also provide that appeals against decisions of the remains to be seen. What is certain is that the sport experience has shown UCI President be filed with the CAS within 8 days (UCI Regulations, Article 12.1.004), however that speed and effectiveness are fundamental features of the fair decisions from the President are very rarely (if ever) relevant and the more common appeals administration of justice and that there might be fields also outside the from decisions of the Disciplinary Commission or Arbitral Board must be filed within 30 days (see the UCI Regulations - Part XII). In anti-doping proceedings, the UCI provides for time limit sports arena where such considerations might be even more important than of one month from the date of receipt of the decision (Article 13.2.5.1 of the UCI Anti-Doping an unrestricted right to be heard. Rules). 19. Jan Paulsson "Jurisdiction and Admissibility" in: Aksen et al. (Eds) Global Reflections on Interna­ tional Law, Commerce and Dispute Resolution - Uber Amicorum Robert Briner, ICC Publishing, -- NOTES Paris 2005, pp. 601-617. 1. Accessible at http://www.fiba.basketball/bat/process/arbitration-rules-january-l-2017. 20. Supreme Court decision 4A_488/2011 of 18 June 2012, para. 4.3.1. 2. Accessible at http://www.tas-cas.org/en/arbitration/code-procedural-rules.html. 21. Articles RSl and R55 CAS Code. 3. For instance, disputes involving claims by competing organisations of the right to govern a 22. Article R56 CAS Code. particular sport (for a recent example see International Federation of American Football, Tom­ 23. The CAS list can be accessed at http://www.tas-cas.org/en/arbitration/list-of-arbitrators-gen­ my Wiking, Turkish American Football Federation v Roope Noronen & Richard Maclean, CAS eral-list.html. 2016/0/4779). 24. Decision by the Swiss Supreme Court of 27 May 2003 (ATF 129 Ill 445), Larissa Lazutina & Olga 4. For instance. the dispute that arose from the Moroccan Football Federation's decision not to Dani/ova v C/0, FIS & CAS, at para. 3.3.3.2; Yearbook Commercial Arbitration, Vol. XXIX (2004), organise the 2015 edition of the Africa Cup of Nations in view of the Ebola virus outbreak in p. 206, 219. The complete original French text of the decision is reported in ASA Bulletin 2003, neighboring regions, TAS 2015/A/3920, Federation Roya/e Marocaine de Football c Confedera­ p. 601 et seq. tion Africaine de Football, Award of 17 November 2015, CAS Bulletin 2016, pp. 76-80. 25. CAS 2009/A/1912 & 1913, Claudia Pechstein v /SU and Deutsche E1sschnel//auf Gemeinschaft v 5. See, e.g., Walter Mattli and Thomas Dietz, International Arbitration and Global Governance, /SU, Award of 25 November 2009. Oxford University Press, 2014, p. 109, with further references. 26. Bundesgerichtshof (BGH) Judgement of 7 June 2016 - KZR 6/15 - OLG MOnchen LG MOnchen I. 6. ATF 119 II 217. Available at http://www.bundesgerichtshof.de/EN/Home/home_node.html. See also the CAS 7. Three members are appointed by the Association of Summer Olympic International Federa­ Media Release of 7 June 2016 available at http://www.tas-cas.org/fileadmin/user_upload/Me­ tions (ASOIF) and one by the Association of International Olympic Winter Sports Federations dia_Release_Pechstein_07.06.16_English_.pdf. (AIOWF). 27. Claudia Pechstein v Switzerland, Application 'n. 67474/10. 8. According to Article SS, any modification to the CAS Code requires a two-thirds majority of the 28. Article SlS in fine CAS Code, introduced in 2010. ICAS members (Article S7 further clarifies that decisions on amendments to the Code may not 29. In CAS 2015/A/4501, Blatter v FIFA, the arbitrator nominated by FIFA was successfully chal­ be delegated to the ICAS Board). lenged by the Appellant in relation to public comments he had previously made about Mr. 9. Notably, this is not an obligation of the ICAS, the CAS Code merely stating that it "may" do so. Blatter's presidency of FIFA in a web interview given to the International Bar Association on the 10. CAS also provides for the mediation of disputes, however (and while the CAS statistics do not subject of sports law and corruption. In the well-known Contador case, a challenge was brought include the number of mediated disputes) it is understood that arbitration proceedings are far on the ground that the arbitrator appointed by the World Anti-Doping Agency (WADA) had more common at CAS than mediation. already 'been nominated by WADA four times in less than two years and four months, and a dozen times since the implementation of the WADA Code in 2003' (CAS 2011/A/2384 & 2386, 11. According to Article R64.4 of the CAS Code, it is the « CAS Court Office» that determines the UC/ v Contador & RFEC and WADA v Contador & RFEC, Decision of 4 May 2011). costs of the arbitration. In reality, however, it is the Secretary General that performs this function in accordance with the provision of Appendix II to the CAS Code "Schedule of Arbitration 30. Footnote 5 in the 2014 IBA Guidelines reads as follows: 'It may be the practice in certain types Costs". of arbitration, such as maritime, sports or commodities arbitration, to draw arbitrators from a smaller or specialised pool of individuals. If, in such fields, it is the custom and practice for 12. This aspect was explicitly pointed out by the Swiss Supreme Court in the Lazutina case, as parties to frequently appoint the same arbitrator in different cases, no disclosure of this fact is discussed below Section II.C.c. required, where all parties in the arbitration should be familiar with such custom and practice.' 31. Cf. Article R54(3) CAS Code. Prior to the 2010 revision of the Code, Article R59 provided that the award was to be rendered within four months from the filing of the statement of appeal. The

106 I INTERNATIONAL CHAMBER OF COMMERCE (ICC) INTERNATIONAL CHAMBER OF COMMERCE (ICC) I 107 EXPEDITED PROCEDURES IN INTERNATIONAL ARBITRATION CHAPTER 4 I SPORTS ARBITRATION AND THE INHERENT NEED FOR SPEED AND EFFECTIVENESS

amendment introducing a time limit running from the transfer of the file to the panel was made 51. Erika Hasler, "The Basketball Arbitral Tribunal - An Overview of its Process and Decisions", Year­ to avoid the difficulties resulting from the delays incurred in connection with the first stages book of International Sports Arbitration 2015, p. 113. in the proceedings (which are beyond the control of the arbitrators), in particular the panels' 52. See FIBA's Internal Regulations (Book 3) at Articles 324-337 which contain provisions establish­ formation, the determination of the language of the proceedings, if disputed, and the payment ing and regulating the BAT. of the advances of costs by the parties; see Despina Mavromati and Mathieu Reeb, The Code of the Court of Arbitration for Sport - Commentary, Cases and Materials, KluwerLaw 2015, ad 53. With that said, according to Article 3-331 FIBA's Internal Regulations (Book 3), FIBA guarantees Article R59 CAS Code, paras 74-75. the tribunal's financing. 32. It is true that the Swiss Supreme Court considers applications for annulment against awards 54. See Articles 3-332 to 3-334 of FIBA's Internal Regulations (Book 3). without reasons to be admissible, however it has noted that the applicant's prospec:ts of success 55. See Article 3-332 of FIBA's Internal Regulations (Book 3). in such cases are (Supreme Court decision 4A_198/2012 of 14 December 2012, para. 2.2). 56. See Article 3-334 of FIBA's Internal Regulations (Book 3). 33. This unfortunate situation is only partially mitigated by the fact that the Swiss Supreme Court 57. See Article 3-334 of FIBA's Internal Regulations (Book 3). will be more inclined to grant a stay of enforcement if an appeal is (preventively) filed against the operative part of the award pending the notification of the reasons (see Antonio Rigozzi and 58. Accessible at http://www.fiba.basketball/bat/process/bat-composition.pdf. Erika Hasler, ad Article R59 CAS Code, para. 14, in Manuel Arroyo (Ed.) Arbitration in Switzer­ 59. See above Section II.B.b. land - The Practitioner's Guide, KluwerLaw International, 2nd ed, forthcoming). 60. The BAT Secretariat is based in Munich. 34. See, e.g., Fadri Leggenhager, in Manuel Arroyo (Ed.) Arbitration in Switzerland - The Practition­ 61. Preamble to the BAT Rules and Article 12.1. er's Guide, KluwerLaw, 2013, ad Article 30 ICC Rules, paras 9-14. 62. Article 12.2 of the BAT Rules. 35. See Appendix II to the CAS Code "Schedule of Arbitration Costs". 63. Swiss arbitration law (Articles 187(2) PILA), as many others, allows the parties to authorize the 36. This is also provided for in CAS ordinary arbitration (see Article R44.4 CAS Code). For a recent tribunal to decide their dispute ex aequo et bona rather than in application of a specific national example where the parties agreed to adopting an expedited procedure in CAS appeals proceed­ law. ings, see CAS 2016/A/4650, Klubi Skenderbeu v UEFA, Award of 21 November 2016 (paras 17-32), where the arbitration was commenced on 14 June and the operative part of the award 64. For an analysis of BAT ex aequo et bona decisions, see Erika Hasler, "The Basketball Arbitral Tri­ was issued on 6 July 2016, two days after the evidentiary hearing. bunal - An Overview of its Process and Decisions", Yearbook of International Sports Arbitration 2015, pp, 132-152 37. Christopher Boog, "Interim Measures in International Arbitration", in Manuel Arroyo (Ed.) Ar­ bitration in Switzerland - The Practitioner's Guide, KluwerLaw, 2013, pp. 1366, para. 59, 1368, 65. While a party may also send its Request for Arbitration via the postal service, the BAT encour­ para. 70. ages and most often uses correspondence via e-mail. 38. See Antonio Rigozzi and Fabrice Robert-Tissot, "Consent" in Sports Arbitration: Its Multiple 66. The extent to which a BAT arbitrator will require a certified translation will depend both on the Aspects", in Elliott Geisinger and Elena Trabaldo-de Mestral (Eds), ASA Special Series No. 41 - nature of the case and the particular evidence in question (particularly if it is important and/or Sports Arbitration as a Coach for Other Players, Huntington (NY) 2015, p. 86 citing the Supreme contentious). Court of the Canton of Bern, Order on provisional measures of 19 April 2012 (0.A. SA v ASP), 67. Erika Hasler, "The Basketball Arbitral Tribunal - An Overview of its Process and Decisions", Year­ para. 2/ a-g, published in part in CausaSport 2012, p. 171 et seq. book of International Sports Arbitration 2015, p. 115. 39. Under these circumstances, one fails to see how an applicant could convince a state court to 68. It has been reported that approximately 90% of BAT awards are published, albeit sometimes ignore the CAS's exclusive jurisdiction by arguing that the CAS is not in a position to grant the in redacted form (Andreas Zagklis, "Three Pointer: an overview of how the Basketball Arbitral measure sought in due time. Tribunal handles financial disputes in: Panagiotopoulos (Ed) Sports Law - Lex Sportiva - Lex 40. The latest CAS ad hoe division was established on the occasion of the Vth Asian Indoor and Olympica and Sports Jurisdiction Experience - Development and Perspectives, EKEAD, Athens Martial Arts Games 2017 in Ashgabat Turkmenistan. See http://www.tas-cas.org/fileadmin/ 2015, pp. 290 et seq., p. 294) user_upload/ Arbitration_Ru les_Asian_l ndoor_ Ga mes_2017. pdf. 69. http://coia.org 41. In the UEFA European Football Championships, the arbitrators are on call. 70. The mention of the "unparalleled experience of COIA's Arbitrators and its Secretariat" refers to 42. Antonio Rigozzi, "The Decisions Rendered by the CAS Ad Hoe Division at the Turin Winter the BAT's experience. Olympic Games 2006", Journal of International Arbitration 2006, p. 455. 43. For a comprehensive review and analysis of the CAS Ad Hoe Division for the Olympic Games, see Gabrielle Kaufmann-Kohler, Arbitration at the Olympics: Issues of Fast-track Dispute Resolu­ tion and Sports Law, KluwerLaw 2001. 44. Larissa Lazutina & Olga Dani/ova v CIO, FIS & CAS, Swiss Federal Tribunal, 27 May 2003, Year­ book Commercial Arbitration, Vol. XXIX (2004), p. 219. 45. In less urgent cases the Panel can take a bit longer. In other cases, Ad Hoe Division Panels have decided to issue only the operative part of the award within the 24-hour time limit. 46. Elizabeth Kantor, Performance-Enhanced Arbitration? The CAS Ad Hoe Division, http://kluwer­ arbitrationblog.com/2012/08/27/performance-enhanced-arbitration-the-cas-ad-hoc-division/. 47. The CAS Ad Hoe Rules can be accessed at: http://www.tas-cas.org/en/arbitration/ad-hoc-di­ vision.html. 48. Gabrielle Kaufmann-Kohler, Arbitration at the Olympics: Issues of Fast-track Dispute Resolution and Sports Law, KluwerLaw 2001, p. 36 et seq. 49. With specific respect to the CAS's Ad Hoe Division, the well known decision to disqualify An­ drea Raducan from the Sydney Olympics was rendered after a single hearing with no mean­ ingful exchange of written submissions. On appeal, the Swiss Supreme Court reviewed and upheld the decision under Article 190 PILA, thereby confirming the validity of the accelerated arbitration process (Supreme Court decision 5P.427 /2000 of 4 December 2000). 50. The FAT was renamed as the BAT in April 2011 to better reflect the tribunal's independence from FIBA.

108 I INTERNATIONAL CHAMBER OF COMMERCE (ICC) INTERNATIONAL CHAMBER OF COMMERCE (ICC) I 109 DOSSIERS ICC Institute of World Business Law

Expedited Procedures in International Arbitration

INTERNATIONAL CHAMBER Edited by IGe OF COMMERCE Laurent Levy The world business organization Michael Polkinghorne EXPEDITED PROCEDURES IN INTERNATIONAL ARBITRATION

Contents

Foreword Yves Derains...... 5

Introduction Laurent Levy and Michael Polkinghorne .. 7

Chapter

1 Expedited Proceedings in International Arbitration Vas Banifatemi ...... 9

2 Expedited Rules and the Possibility of Immediate Measures once a Tribunal is Constituted Christophe Seraglini & Patrick Baeten .. . . 34

3 The Uniform Domain Name Dispute Resolution Policy Andrea Mondini . . . . 70

4 Sports Arbitration and the Inherent Need for Speed and Effectiveness Antonio Rigozzi . . . 88

5 Rediscovering the Lost Promise of International Arbitration Constantine Partasides and Ben Prewett ...... 110

6 Expedited Institutional Arbitral Proceedings Between Autonomy and Regulation Mohamed S. Abdel Wahab 133

Expedited Procedures in International Arbitration Conclusion Laurent Levy and Michael Polkinghorne 158 © 2017 International Chamber of Commerce

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