Sports arbitration II

1. The International Council of Arbitration for Sport (ICAS)
 

The ICAS is the supreme organ of the CAS. The main task of the ICAS is to safeguard the independence of the CAS and the rights of the parties. To this end, it looks after the administration and financing of the CAS. The ICAS is composed of 20 members who must all be high-level jurists well-acquainted with the issues of arbitration and sports law. The 275 CAS arbitrators (2007 figure) are appointed by the ICAS for a renewable term of four years. The Code stipulates that the ICAS must call upon “personalities with a legal training and who possess recognised competence with regard to sport”. The CAS arbitrators are appointed at the proposal of the IOC, the IFs and the NOCs.

2. The Code of Sports-related Arbitration of 22 November 1994

 

Since 22 November 1994, the Code of Sports-related Arbitration (hereinafter: the Code) has governed the organisation and arbitration procedures of the CAS. The­ Code was revised in 2003 in order to incorporate certain long-established principles of CAS case-law or practices consistently followed by the arbitrators and the Court Office. The latest version of the Code of Sports-related Arbitration entered into force on 1 January 2010.

The Code thus establishes rules for four distinct procedures:
- the ordinary arbitration procedure;
- the appeals arbitration procedure;
- the advisory procedure, which is non-contentious and allows certain sports bodies to seek advisory opinions from the CAS;
- the mediation procedure.

The creation of the ICAS and the new structure of the CAS were approved in Paris, on 22 June 1994, with the signing of the “Agreement concerning the constitution of the International Council of Arbitration for Sport”, known as the “Paris Agreement”. This was signed by the highest authorities representing the sports world, viz. the presidents of the IOC, the Association of Summer Olympic International Federations (ASOIF), the Association of International Winter Sports Federations (AIWF) and the Association of National Olympic Committees (ANOC). 

 

3. Types of disputes

In principle, two types of dispute may be submitted to the CAS: those of a commercial nature, and those of a disciplinary nature.

The first category essentially involves disputes relating to the execution of contracts, such as those relating to sponsorship, the sale of television rights, the staging of sports events, player transfers and relations between players or coaches and clubs and/or agents (employment contracts and agency contracts). Disputes relating to civil liability issues also come under this category (e.g. an accident to an athlete during a sports competition). These so-called commercial disputes are handled by the CAS acting as a court of sole instance.

Disciplinary cases represent the second group of disputes submitted to the CAS, of which a large number are doping-related. In addition to doping cases, the CAS is called upon to rule on various disciplinary cases (violence on the field of play, abuse of a referee). ­ Such disciplinary cases are generally dealt with in the first instance by the competent sports authorities, and subsequently become the subject of an appeal to the CAS, which then acts as a court of last instance.

Sports arbitration

The Court of Arbitration for Sport (CAS; French: TAS - Tribunal Arbitral du Sport) has headquarters  in Lausanne and its courts are located in New York, Sydney and Lausanne. Temporary (ad hoc ) courts are built in current Olympic Host Cities. Court was established as part of the IOC ( International Olympic Committee ) in 1984. In 1994 a case decided by the CAS was appealed to the Federal Supreme Court of Switzerland, challenging CAS impartiality. The Swiss court ruled that the CAS was a true court of arbitration, but drew attention to the numerous links which existed between the CAS and the IOC. In response, the CAS underwent reforms to make itself more independent of the IOC, organizationally and financially. The biggest change resulting from this reform was the creation of an "International Council of Arbitration for Sport" (ICAS) to look after the running and financing of the CAS, thereby taking the place of the IOC. Generally speaking, a dispute may be submitted to the CAS only if there is an arbitration agreement between the parties which specifies recourse to the CAS. Most of the national and international sports federations recognize its jurisdiction.

The 1994 reform

In February 1992, a horse rider named Elmar Gundel lodged an appeal for arbitration with the CAS on the basis of the arbitration clause in the FEI statutes, challenging a decision pronounced by the federation. This decision, which followed a horse doping case, disqualified the rider, and imposed a suspension and fine upon him. The award rendered by the CAS on 15 October 1992 found partly in favour of the rider (the suspension was reduced from three months to one month: see arbitration CAS 92/63 G. v/ FEI in Digest of CAS Awards 1986-1998). Unhappy with the CAS decision, Elmar Gundel filed a public law appeal with the Swiss Federal Tribunal. The appellant primarily disputed the validity of the award, which he claimed was rendered by a court which did not meet the conditions of impartiality and independence needed to be considered as a proper arbitration court. 

In its judgement of 15 March 1993  the Federal Tribunal (FT) recognised the CAS as a true court of arbitration. The supreme court noted, inter alia, that the CAS was not an organ of the FEI, that it did not receive instructions from this federation and retained sufficient personal autonomy. However, in its judgement the FT drew attention to the numerous links which existed between the CAS and the IOC: the fact that the CAS was financed almost exclusively by the IOC; the fact that the IOC was competent to modify the CAS Statute; and the considerable power given to the IOC and its President to appoint the members of the CAS.

This Gundel judgement led to a major reform of the Court of Arbitration for Sport. First of all, the CAS Statute and Regulations were completely revised to make them more efficient and to modify the structure of the institution, to make it definitively independent of the IOC which had sponsored it since its creation. The biggest change resulting from this reform was the creation of an “International Council of Arbitration for Sport” (ICAS) to look after the running and financing of the CAS, thereby taking the place of the IOC. 

 

Other major changes included the creation of two arbitration divisions (Ordinary Arbitration Division and Appeals Arbitration Division) in order to make a clear distinction between disputes of sole instance and those arising from a decision taken by a sports body. Finally, the CAS reforms were definitively enshrined in a "Code of Sports-related Arbitration", which came into force on 22 November 1994 and was revised on 1 January 2004.

It was not until 27 May 2003 that the Federal Tribunal assessed the Court's independence again, having heard an appeal by two Russian cross-country skiers, Larissa Lazutina and Olga Danilova, against a CAS award disqualifying them from an event at the Olympic Winter Games in Salt Lake City. In a remarkably detailed and exhaustive judgement, the Federal Tribunal dissected the current organisation and structure of the ICAS and CAS, concluding that the CAS was not "the vassal of the IOC" and was sufficiently independent of it, as it was of all other parties that called upon its services, for decisions it made in cases involving the IOC to be considered as true awards, comparable to the judgements of a State tribunal.

Source: http://wikipedia.org/, http://www.tas-cas.org/

ICJ - Legality of Use of Force Cases

On 29 April 1999 the Federal Republic of Yugoslavia instituted proceedings before the Court against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States of America, accusing those States of bombing Yugoslav territory in violation of their international obligations.On the same day Yugoslavia also filed, in each of the ten cases, a request for interim measures of protection (provisional measures), asking the Court to order the States involved to "cease immediately [their] acts of use of force". In two cases (Yugoslavia v. Spain and Yugoslavia v. United States of America), the Court concluded that it manifestly lacked jurisdiction and it accordingly ordered that the cases be removed from its List. In the other eight (Yugoslavia v. Belgium; Yugoslavia v. Canada; Yugoslavia v. France; Yugoslavia v. Germany; Yugoslavia v. Italy; Yugoslavia v. Netherlands; Yugoslavia v. Portugal; Yugoslavia v. United Kingdom), the Court found that it lacked prima facie jurisdiction -  which is one of the prerequisites for the indication of provisional measures -  and that it therefore could not indicate such measures; the Court, however, stated that it remained seised of those cases and stressed that its findings, at that stage, "in no way prejudge[d] the question of the jurisdiction of the Court to deal with the merits" of the cases and left "unaffected the right of the Governments of Yugoslavia and [of the respondent States] to submit arguments in respect of those questions".

On 5 July 2000, Belgium submitted preliminary objections relating to the Court's jurisdiction to entertain the case and to the admissibility of the Application.  The proceedings on the merits were accordingly suspended.  Hearings were held from 19 to 23 April 2004 on those objections, as well as on those submitted by the seven other Respondents.    In light of the legal consequences of the new development since 1 November 2000 (Serbia and Montenegro becoming UN member), ICJ concluded that Serbia and Montenegro was not a Member of the United Nations at the time of filing its Application to institute the present proceedings before the Court on 29 April 1999, it follows that the Court was not then open to it. 

The Court then considered whether it might be open to the Applicant under paragraph 2 of Article 35,under Article 35, , which provides: “The conditions under which the Court shall be open to other States [i.e. States not parties to the Statute] shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court.”The Court thus concluded that, even assuming that the Applicant was a party to the Genocide  at the relevant date, Article 35, paragraph 2, of the Statute does not provide it with a basis for access to the Court under Article IX of that Convention, since the Convention only entered into force on 12 January 1951, after the entry into force of the Statute.  The Court did not therefore consider it necessary to decide whether Serbia and Montenegro was or was not a party to the Genocide Convention on 29 April 1999, when the current proceedings were instituted.  The Court finally rejected the argument that Serbia and Montenegro was entitled to invoke Article 4 of the 1930 Convention as a basis of jurisdiction in this case. Having concluded that Serbia and Montenegro has no access to the Court under either paragraph 1 or paragraph 2 of Article 35, the Court noted that it is unnecessary for it to consider the Respondent's other preliminary objections.

.

ITLOS - jurisdiction

The sea disputes

To settle sea disputes, the United Nation Convention on Law of the Sea (UNCLOS) provides freedom to the States Parties concerned to settle their dispute through negotiation or other diplomatic measures between them at anytime. Parties could, in case there is no settlement between them, request to the court or Tribunal
having jurisdiction over their issues. According to the article 287 of the United Nations Convention, one state has the right to choose one or more of following means for settlement their disputes concerning the interpretation and application of this Convention:

• The International Tribunal for the Law of the Sea -ITLOS
• The International Court of Justice -ICJ
• An Arbitral Tribunal constituted in accordance with Annex VII
• A Special Arbitral Tribunal constituted in accordance with Annex VIII.

 Many of the State Parties have made different declarations concerning their choice of procedures: part of them have indicated the ITLOS as their means for settlement of disputes. An equal number have expressed their preference for ICJ, few states have expressed rejection ICJ as their mean for settlement of disputes. Even though the States Parties are free to choose their procedures, the ITLOS, which is the new institution, has been chosen as a means for settlement of sea disputes. However, where the parties have not accepted the
same procedure or have not made declaration, for example one for ITLOS and the other for ICJ, or have not made declaration, the arbitration shall be applied to their disputes.

ITLOS

ITLOS convened its first session at its seat in Hamburg on 1 October 1996 and began its work from thereon.

In accordance with article 15 of the Statute, the Tribunal may form special chambers. The Tribunal forms annually a Chamber of Summary Procedure. Under Part XV of the UNCLOS, the Tribunal has jurisdiction
over certain types of legal disputes between states parties concerning the interpretation and application of law of the sea convention or international agreement related to the purpose of the Convention. Unless parties agree otherwise, the Tribunal’s jurisdiction becomes obligatory in respect of prompt release of vessels under article 292 and provisional measures under article 290, paragraph 5, of the Convention. The Seabed Disputes Chamber of the Tribunal enjoys almost exclusive jurisdiction in relation to activities in the international seabed area. It has competence ratione materiae which goes further and comprises contracts or plans of works,
acts of omission, refusal of contracts, legal issues arising in the negotiation of the contract, and disputes where it is alleged that liability has been incurred, in order to name only subject matters expressly mentioned in Article 187 of the convention.

Source: MOM Ravin, ITLOS and Dispute Settlement Mechanisms of the United Nations Convention on the Law of the Sea

PCA Mixed arbitration

 The Permanent Court of Arbitration began its life in 1899, and continued after 1907, as an interstate arbitral institution. The PCA is an intergovernmental organization with over one hundred member states. The PCA was established by the 1899 Convention for the Pacific Settlement of International Disputes, concluded at The Hague during the first Hague Peace Conference. The 1899 Convention was revised in 1907 at the second Hague Peace Conference.  PCA’s organizational role has been extended to mixed arbitration, that is, to arbitration between States or State entities on the one hand and private parties or corporations on the other. This occurred for the first time in 1935. Since that time about half of all the cases dealt with under the auspices of the PCA have been mixed arbitrations, and the proportion is increasing. Subsequently the Secretary-General became the default mechanism under the UNCITRAL Rules of 1976.

The competence of the PCA in the field of mixed arbitration has been founded on Article 47 of the 1907 Hague Convention, which provides: “The Bureau is authorized to place its offices and staff at the disposal of the Contracting Powers for the use of any special Board of Arbitration. The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to disputes between non-Contracting Powers or between Contracting Powers and non-Contracting Powers, if the parties are agreed on recourse to this Tribunal.”

In 1962 the PCA’s Permanent Administrative Council adopted the first set of Rules of arbitration and conciliation for settlement of international disputes between two parties of which only one is a State.The PCA also has distinct sets of Optional Rules for arbitrating disputes involving international organizations and States, and between international organizations and private parties.

Source: Prof. James Crawford, THE PERMANENT COURT OF ARBITRATION AND MIXED ARBITRATION

WTO DSB - Jurisdiction

The WTO dispute settlement system has jurisdiction over any dispute between WTO Members arising under any of the covered agreements (Article 1.1 of the DSU). The basis or cause of action for a WTO dispute must, therefore, be found in the “covered agreements” listed in Appendix 1 to the DSU, namely, in the provisions on “consultation and dispute settlement” contained in those WTO Agreements. In other words, it is not the DSU, but rather the WTO Agreements that contain the substantive rights and obligations of WTO Members, which determine the possible grounds for a dispute.

The Dispute Settlement Body (DSB)

The DSB has the authority to establish panels, adopt panel and Appellate Body reports, maintain surveillance of implementation of rulings and recommendations and authorize the suspension of obligations under the covered agreements (Article 2.1 of the DSU). The general rule is for the DSB to take decisions by consensus (Article 2.4 of the DSU). Footnote 1 to Article 2.4 of the DSU defines consensus as being achieved if no WTO Member, present at the meeting when the decision is taken, formally objects to the proposed decision. 

However, when the DSB establishes panels, when it adopts panel and Appellate Body reports and when it authorizes retaliation, the DSB must approve the decision unless there is a consensus against it (Articles 6.1, 16.4, 17.14 and 22.6 of the DSU). This special decision-making procedure is commonly referred to as “negative” or “reverse” consensus.One sole Member can always prevent this reverse consensus, i.e. it can avoid the blocking of the decision (being taken).

Panels

Panels are the quasi-judicial bodies, in a way tribunals, in charge of adjudicating disputes between Members in the first instance. They are normally composed of three, and exceptionally five, experts selected on an ad hoc basis. This means that there is no permanent panel at the (WTO); rather, a different panel is composed for each dispute. Anyone who is well-qualified and independent (Articles 8.1 and 8.2 of the DSU) can serve as panelist. The WTO Secretariat maintains an indicative list of names of governmental and non-governmental persons, from which panelists may be drawn (Article 8.4 of the DSU). WTO Members regularly propose names for inclusion in that list, and, in practice, the DSB always approves their inclusion without debate. It is not necessary to be on the list in order to be proposed as a potential panel member in a specific dispute. 

The panel composed reviews the factual and legal aspects of the case and submits a report to the DSB. If the panel finds that the claims are indeed well founded and that there have been breaches by a Member of WTO obligations, it makes a recommendation for implementation by the respondent (Articles 11 and 19 of the DSU). The WTO Secretariat is responsible for the administrative aspects of the dispute settlement procedures, as well as for assisting panels on the legal and procedural aspects of the dispute at issue (Article 27.1 of the DSU).This is necessary to achieve the DSU’s objective of providing security and predictability to the multilateral trading system (Article 3.2 of the DSU).

Appellate Body

The DSB established the Appellate Body in 1995. Unlike panels, the Appellate Body is a permanent body of seven members entrusted with the task of reviewing the legal aspects of the reports issued by panels. If a party files an appeal against a panel report, the Appellate Body reviews the challenged legal issues and may uphold, reverse or modify the panel’s findings (Article 17.13 of the DSU). In doing so, the Appellate Body also provides consistency of decisions, which is in line with the central goal of the dispute settlement system to provide security and predictability to the multilateral trading system (Article 3.2 of the DSU).The Appellate Body Secretariat provides legal assistance and administrative support to the Appellate Body (Article 17.7 of the DSU). To ensure the independence of the Appellate Body, this Secretariat is only linked to the WTO Secretariat administratively, but is otherwise separate.

Arbitrators

In addition to panels and the Appellate Body, arbitrators, either as individuals or as groups, can be called to adjudicate certain questions at several stages of the dispute settlement process. Arbitration is available as an alternative to dispute resolution by panels and the Appellate Body (Article 25 of the DSU), although it is a possibility that has so far very rarely been used. Arbitration results are not appealable but can be enforced through the DSU (Articles 21 and 22 of the DSU). Much more frequent are two  forms of arbitration thus limited to clarifying very specific questions in the process of implementation and they result in decisions that are binding for the parties:

1) after the DSB has adopted a panel (and, if applicable, an Appellate Body) report, may be called to decide on, is the establishment of the “reasonable period of time” granted to the respondent for implementation (Article 21.3(c) of the DSU).

2) the “losing” party is bound to implement the DSB rulings and recommendations and a party subject to retaliation may also request arbitration if it objects to the level or the nature of the suspension of obligations proposed (Article 22.6 of the DSU).






Source: http://www.wto.org

ICJ - Basis of jurisdiction

1. Special agreement

Article 36, paragraph 1, of the Statute provides that the jurisdiction of the Court comprises all cases which the parties refer to it. Such cases normally come before the Court by notification to the Registry of an agreement known as a special agreement and concluded by the parties specially for this purpose. The subject of the dispute and the parties must be indicated (Statute, Art. 40, para. 1; Rules, Art. 39).

2. Cases provided for in treaties and conventions
 

Article 36, paragraph 1, of the Statute provides also that the jurisdiction of the Court comprises all matters specially provided for in treaties and conventions in force. In such cases a matter is normally brought before the Court by means of a written application instituting proceedings; this is a unilateral document which must indicate the subject of the dispute and the parties (Statute, Art. 40, para. 1) and, as far as possible, specify the provision on which the applicant founds the jurisdiction of the Court (Rules, Art. 38).

3. Compulsory jurisdiction in legal disputes

The Statute provides that a State may recognize as compulsory, in relation to any other State accepting the same obligation, the jurisdiction of the Court in legal disputes. These cases are brought before the Court by means of written applications. The conditions on which such compulsory jurisdiction may be recognized are stated in paragraphs 2-5 of Article 36 of the Statute (legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation).

4. Forum prorogatum 

If a State has not recognized the jurisdiction of the Court at the time when an application instituting proceedings is filed against it, that State has the possibility of accepting such jurisdiction subsequently by  virtue of the rule of forum prorogatum.

5. The Court itself decides any questions as to its jurisdiction

Article 36, paragraph 6, of the Statute provides that in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court. 

6. Interpretation of a judgment

Article 60 of the Statute provides that in the event of dispute as to the meaning or scope of a judgment, the Court shall construe it upon the request of any party. 

7. Revision of a judgment

An application for revision of a judgment may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such party's ignorance was not due to negligence (Statute, Art. 61, para. 1). A request for revision is made by means of an application (Rules, Art. 99).

Declarations Recognizing the Jurisdiction of the Court as Compulsory

The States parties to the Statute of the Court may "at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court" (Art 36, para. 2 of the Statute). 66 states have filed declarations with the Secretary-General of the United Nations. (2011)

Source: http://www.icj-cij.org

ICJ - Jurisdiction in general

The International Court of Justice has a dual jurisdiction:

- Jurisdiction in contentious cases:  deciding on disputes of a legal nature that are submitted to it by States ; and
- Advisory jurisdiction: providing advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies authorized to make such a request .

The Court can only deal with a dispute when the States concerned have recognized its jurisdiction and have in some manner or other consented thereto. Court is open only to states ( no international organizations or private persons ).

An international legal dispute means disagreement on a question of law or fact, a conflict, a clash of legal views or of interests.

Access for States to the Court:

Article 35 of the ICJ Statute defines the conditions of access for States to the Court. While paragraph 1 of that Article opens it to the State parties to the Statute, paragraph 2 is intended to regulate access to the Court by States which are not parties to the Statute. The conditions of access of such States are, subject to the special provisions contained in treaties in force at the date of the entry into force of the Statute, to be determined by the Security Council.

Source: http://www.icj-cij.org