Editor’s Note: Saverio
Spera is an Italian lawyer and LL.M. graduate in International Business Law from
King’s College London. He is currently an intern at the ASSER International
Sports Law Centre.
The time
is ripe to take a closer look at the CAS and its transparency, as this is one
of the ways to ensure its public accountability and its legitimacy. From 1986
to 2013, the number of arbitrations submitted to the CAS has grown from 2 to more
than 400 a year. More specifically, the number of appeals submitted almost doubled
in less than ten years (from 175 in 2006, to 349 in 2013[1]).
Therefore, the Court can be considered the judicial apex of an emerging transnational
sports law (or lex sportiva).[2]
In turn, the increased authority and power of this institution calls for
increased transparency, in order to ensure its legitimacy.[3]
One might
ask why focusing on the level of transparency of an arbitral institution is so
important, given the traditional aura of confidentiality that has always
accompanied arbitral proceedings. The answer is multifaceted. Firstly, a cursory
look at the developments of international commercial arbitration and, more
significantly, international investment arbitration shows that confidentiality
is not anymore the untouchable hallmark that it once was.[4]
Secondly, and most importantly, the peculiarities of the CAS Appeal Procedure
make this body look like an arbitral institution but function in a way that is
more akin to an international court. Furthermore, it is well known that one of
the foundations of domestic and international arbitration is party autonomy.
Parties freely opt to defer their dispute to an arbitral panel rather than a
court for a variety of reasons, one of which can actually be the confidential
nature of arbitration. That said, it is hard to ground the CAS Appeal Procedure on party autonomy. According to the CAS Code (Art. R47), in order for
the CAS to have the necessary jurisdiction to hear an appeal, either the
parties have expressly agreed to it, or an arbitration clause is contained in
the statutes or regulations of the governing body issuing the decision under
appeal. In practice, the regulations of the Sports-Governing Body often contain
an arbitration clause in favour of the CAS, or these bodies require athletes to
sign a specific arbitration agreement as a precondition for participating in an
event or competition.[5]
An example of the former practice is given by the FIFA
Statutes, which – at Art. 59 expressly require that national federations
insert an arbitration clause in favour of the CAS in their regulations, and –
at Art. 58 imposes that “(a)ppeals
against final decisions passed by FIFA’s legal bodies and against decisions
passed by confederations, members associations or leagues shall be lodged with
CAS”. An example of the latter is given by Bye-law 6 to Rule 44 of the
Olympic Charter, which obliges athletes entering the Olympic Games to sign
a form containing a clause which devolves the CAS exclusive jurisdiction over
any dispute arising in connection with the participation to the Games.
In such a
framework, athletes face the alternative between not competing at all and accepting to resort to the CAS in case of a dispute. The post-consensual
foundation of the system is a feature that stands in irreconcilable conflict
with the logic of international commercial arbitration, based on party
autonomy. If the free will of the parties in choosing to arbitrate rather than
litigate justifies, to a limited extent, a limitation of transparency in favour
of confidentiality in international commercial arbitration, what justifies a
low level of transparency at the CAS?
In this
regard, for example, the level of transparency of international investment arbitration
has been subjected to intense scrutiny. Transparency should then, a fortiori, be scrutinized in the realm
of sports arbitration, and in particular at the CAS, whose central position in
the lex sportiva is widely
acknowledged.
This blog
will focus on the two key issues related to the CAS’ transparency. Firstly, the
availability of information about arbitrators on the CAS website. Secondly, and
most importantly, the publication and ready availability of CAS awards. Furthermore,
as the CAS ordinary procedure resembles traditional commercial arbitration, the
blog will be only concerned with awards stemming from the Appeal procedure.
Lack of
transparency concerning the arbitrators
Articles
R33 to R36 of the CAS Code deal with independence and impartiality of CAS
Arbitrators as a conditio sine qua non
of the arbitration proceedings.[6]
Moreover, these provisions provide for mechanisms to guarantee this independence
together with measures at disposal of the parties that want to challenge the independence or impartiality of an arbitrator. Yet
to diligently exercise their right, and ensure the independence of arbitrators,
parties need full access to information on the arbitrators.
Analysed
through the lens of transparency, the problems arise from the fact that it is
difficult to assess the inclinations and history of arbitrators prior to
initiating proceedings before the CAS. In other words, given the limited information
on arbitrators found on the CAS website[7],
parties are not equipped with the necessary tools to make a fully informed
choice. There is always a risk for conflicts of interest that parties to CAS arbitration
should be able to assess on a level playing field, i.e. through a simple visit
to the CAS website. Thus, more transparency with regards to the information
provided about arbitrators would help reduce the prevailing information
asymmetry between the one-shotters (mainly the athletes and their lawyers) and
the repeat players (mainly the SGBs and their lawyers/legal counsels) at the
CAS. Not only should the section ‘List of Arbitrators’ give access to each
arbitrator’s jurisprudential record and relevant past or present contractual
relationships. It should also list publications or comments arbitrators have
released in the past, as some of them might have already formed a view on a
certain type of cases. Although this is not always an indicator of bias, it would
permit the parties to make a better-informed choice. Furthermore, and more
importantly, in order to level the playing field between the parties, the
information about arbitrators should also include a reference to who nominated
them in past CAS arbitrations. Additionally, the fact that dissenting opinions
are not recognised nor notified by CAS[8] adds
another layer to a feeling of opacity surrounding the arbitrators’ profiles and
views.
Finally,
according to Art. R33 CAS Code, ICAS draws up the list of arbitrators. From the
point of view of securing the CAS’ transparency and accountability, it would be
necessary that the nomination process be publicly scrutinized. Thus, ICAS
should publish the name of the institutions putting forward each new
arbitrator, as well as the reasons why they were considered adequate
candidates.
Lack of
transparency in the publication of awards
The lack
of transparency of the CAS is further illustrated by the process followed for the
publication of its awards (and in particular awards of the Appeal Division).
The CAS
Code provides rules for the publication of awards in the Ordinary Procedure
(Art. R43) and the Appeal Procedure (Art. R59). For the Ordinary Procedure the
default rule is confidentiality ‘unless all parties agree or the Division
President so decides’. The rule favours a presumption of confidentiality because
the CAS Ordinary Procedure is mainly used for commercial disputes based on the
clear consensual agreement of the parties to submit to CAS arbitration. However,
it is interesting to note that even in the similar realm of international
commercial arbitration confidentiality is not an unchallenged hallmark anymore.
International commercial arbitration awards are being voluntarily published
with increased frequency[9]
and some authors even advocate the adoption of a presumption of openness of the
awards.[10]
In fact, although the need for transparency in commercial arbitration is less
compelling than in investment arbitration due to the private interests at
stake, the general public may still be affected in a variety of ways and
therefore needs to have access to the decisions. [11]
Conversely,
the default rule for the CAS Appeal Procedure is publicity. Art. R 59(7) provides
that “(t)he award, a summary and/or a
press release setting forth the results of the proceedings shall be made public
by CAS, unless both parties agree that they should remain confidential. In any
event, the other elements of the case record shall remain confidential”. The
rationale for a different treatment between the Ordinary Procedure and the
Appeal Procedure lies in the consideration that, unlike the more commercially-oriented
disputes destined to the Ordinary Procedure, appeals concern disciplinary decisions
issued by international federations that are of interest to the public and
that, in any case, might have already been disclosed.[12]
From a
comparative point of view, it is noteworthy that the public interests at stake
are one of the reasons why international investment arbitration, as opposed to
– or at least more rapidly than – commercial arbitration, has shifted from a
presumption of confidentiality to a presumption of openness.[13]
In oversimplified terms, investment arbitration disputes involve States, which
– for instance – have to resort to the national budget to pay in case of adverse
awards. Also, governments’ public policies are often challenged before
investment arbitral tribunals by foreign investors. All these matters are of
evident public interest and were a key factor in pushing for more transparency.
In the field of international investment law this process was initially
triggered by NAFTA
Chapter 11 and its interpretation
by the Free Trade Commission (FTC), followed by the 2006
amendment to the ICSID Arbitration Rules. The development of the UNCITRAL
Rules on Transparency, which also provide for amicus curiae submissions and open hearings, made another important
stride in that direction.
Turning
the attention back to the CAS, all the awards published are released on the CAS website. Although
it could be argued that, at least for the Appeal Procedure, the default rule
should go further down the road of transparency following the trend in treaty
investment arbitration, a transparency-weary commentator could potentially be
satisfied with the existing framework of the CAS Code, if only the CAS would
implement it consistently. Instead, the CAS administration seems to follow a
rather opaque and discretionary publication policy that gives rise to major
transparency issues, the main one being the fact that, as we will see, only a
limited number of awards are published on the CAS website.
The CAS
statistics include the number of Appeals submitted to the CAS (until 2013) and it is easy to determine the number of awards published per year in the CAS Database
between the entry into force of the Code (22 November 1994) and the end of 2013.
We compared the two figures and obtained the percentage of awards
published each year in relation to the number of appeals submitted.[14]
A quick
glimpse at the table suffices to notice an unfortunate trend in the publication
policy of the CAS. If we exclude the first couple of years, in which the number
of appeals submitted were extremely limited, the percentage of awards published
is constantly below 30% (with the sole exceptions of 2001, 2002 and 2008, and –
in any case –substantially below the still hardly acceptable threshold of 50%).
The figures get even more striking as the workload of the CAS increased. From
2009 onwards, the average percentage of appeal awards published stands at a disappointing
17.5%!
This
state of affairs significantly hampers predictability and coherence of the CAS
jurisprudence, as well as threatens the objective of providing legal certainty
to the sporting world at large, which is at the heart of the appeal procedure
at the CAS. Indeed, the CAS jurisprudence has acquired throughout the years a
law-making role that, in turn, calls for full transparency of its awards. If we
read through the CAS case law we can find that arbitrators often refer, and
demonstrate a consistent deference, to CAS jurisprudence.[15]
To this end, transparency becomes a central issue, as it prevents inconsistency
by subjecting the CAS panels to the critical scrutiny of their peers. After
all, the need for coherence has been stressed by the CAS itself when it has
recognised that, in spite of the lack of stare
decisis at the CAS, arbitrators are disposed to “follow the reasoning of a
previous Tribunal […] both of a sense of comity and because of the desirability
of consistent decision of the CAS, unless there were a compelling reason, in
the interest of justice, not to do so”.[16]
From the point of view of the potential parties to CAS arbitration this is of
particular importance. If awards are systematically published, lawyers (and in fine the parties) are better able to
determine before initiating the arbitration whether their case is likely to
succeed. Furthermore, the availability of awards on the CAS website would put
repeat players and one-shotters on an equal playing field, eliminating – at
least in this regard – the edge that the former gain on the latter.
The need
for predictability requires not only awards to be published, but also to be
promptly published after they are rendered. The potential disputing parties
might have an interest in having previous awards available quickly. In this
regard the above-mentioned role of precedents in CAS jurisprudence plays again
a significant role. It has been noticed how some decisions are based on
solutions adopted in previous awards that have not yet been published.[17]
Having the award readily at disposal is necessary for the parties’ legal
argumentation. This way the party’s counsel can, respectively, either use the
award as a valid leg to bolster her arguments or criticise the position
recently adopted by a panel on the same issue.[18]
Additionally, a more systematic publication of recent awards online would
significantly contribute to increase the level of transparency at the CAS, as
the web represents a great opportunity for the public in terms of speed and
accessibility. On the CAS website it is possible to find a section specifically
dedicated to ‘recent decisions’. This section, though, does not seem to be
organised as systematically as it could be. The CAS’ policy regarding the
recent decision section of its website is extremely confusing. It includes some
awards from 2016 and 2015, but not all the awards from these years available in
the CAS database, as well as older awards from 2012 and 2011, which can hardly
count as ‘recent decisions’. Apart from the consideration that “these awards
disappear from the website after a few weeks and it is not possible to find
them anymore”[19], a more
systematic publication of the recent awards would be desirable. A valid model
to follow has been identified in the websites of the Italian Camera di
conciliazione e di arbitrato per lo sport (CCAS) and the Canadian Centre for
Ethics in Sports (CCES), where the decisions taken are systematically published
without excessive delay.[20]
Conclusion
There is
a clear, widespread and apparently unstoppable demand for transparency in
contemporary international law. This demand has been voiced by civil-society,
governments and international institutions with increased frequency. Thus, more
room for transparency has been made within international institutions in the
last few years.[21]
We have seen very briefly how even in the confidentiality-savvy field of
international arbitration transparency has made its way up on the ladder of
priorities. In sports arbitration, where the jurisdiction is often not
exercised over the parties on the basis of their consent[22],
the judicial activity of the CAS must be a
fortiori open to scrutiny not only by the parties but by the public at
large. There are many ways to evaluate the legitimacy of a court. One of these
is the persuasion among the public that an international court has the right to
exercise authority in a given domain. To be persuaded, it is essential that the
public has a possibility to assess how the CAS carries out its activities and,
therefore, be allowed the broadest access possible to CAS awards to be able to evaluate
(and criticize) their rationality. A greater transparency at the CAS would
allow for greater participation of those that might be affected by its
activity.
This call
for greater accountability of international courts and tribunals, though, does
not seem to resonate much at the CAS. If one looks, as we have done in this
blog, at the reality of transparency at the CAS, one cannot help feeling disappointed.
Information about arbitrators is scarce and it is hard to find any consistency
in the publication of CAS awards.
Yet the
CAS could intervene on these two key aspects. To this end, we propose a few
brief recommendations for the CAS administration to follow.
Firstly,
the section of the CAS website ‘List of Arbitrators’ should be enriched with
all the relevant information concerning arbitrators. Therefore:
First
recommendation: The CAS should include in the ‘List of
Arbitrators’ section of the website a downloadable individualized PDF
comprising: jurisprudential records, past or present relevant contractual
relationships, publications or comments arbitrators have released in the past
and a summary indicating who nominated them in past CAS arbitrations.
Secondly,
the CAS should make sure that all its appeal awards are promptly available to
the public. Therefore:
Second
recommendation: The CAS should simply remove the phrase ‘unless
both parties agree’ from the provision of Art. R59. Thereafter, parties would
be in principle deprived of the authority to veto the publication of a
sentence.
Even if
one believes that – notwithstanding its peculiarities – the Court operates as a
traditional arbitral institution, a systematic reform of the publication policy
of the CAS would be urgently needed. The CAS website (and database) need to be
modernized to facilitate a swift and easy access of the public to the awards.
Therefore:
Third
recommendation: The ‘recent decisions’ section should contain
(for a short timeframe, maximum three months) all the recently decided awards
and the database should provide all the awards rendered and not only less than
a fifth as is currently the case.
There is
much to do, but with a bit of will the CAS can become a world-wide leader in
terms of arbitral transparency and greatly strengthen its legitimacy and
standing in the eyes of its users and of the public at large.
[1] The statistics used for
this article are taken from the CAS
website, the available data stops on 31 December 2013.
[2] Lorenzo Casini, The Making of a Lex Sportiva by The Court of
Arbitration for Sport (2012). German
Law Journal, Vol. 12 n. 5, 452, Antoine Duval, Lex Sportiva: A playground for transnational
law (2013). European Law Journal, Vol. 19 Issue 6, 822-842.
[3] Anne Peters, Towards Transparency as a Global Norm in
Andrea Bianchi and Anne Peters, Transparency in International Law, Cambridge
University Press 2013, 557.
[4] See Cindy G. Buys, The tensions between confidentiality and
transparency in international arbitration, The American Review of
International Arbitration (2003), Catherine A. Rogers, Transparency in International Commercial
Arbitration (2006) and Stephan
W. Schill, Five times transparency in international investment law (2014), The Journal of World Investment and Trade, Volume 15, Issue 3-4.
[5] Rigozzi/Hassler, Sports Arbitration under the CAS Rules,
Chapter 5 in Arbitration in Switzerland, Kluwer Law International (2013), 988.
[6] Despina Mavromati &
Matthieu Reeb, The Code of the Court of
Arbitration for Sport, Commentary, Cases and Materials, Kluwer Law
International (2015), 134.
[7] In some cases information is
limited to a couple of lines, e.g. “Juris doctor; Professor of International
Law at […] University School of Law; practicing lawyer; international
arbitrator”. See http://www.tas-cas.org/en/arbitration/list-of-arbitrators-general-list.html,
accessed 19 January 2017.
[8] The last part of Art. R
59(2), inserted with the 2010 revision of the CAS Code, reads as follows: “Dissenting opinions are not recognized by
CAS and are not notified”.
[9] Catherine A. Rogers, Transparency
in International Commercial Arbitration, (2006). Penn State Law, 23.
[10] See, among others, Cindy
G. Buys, The tensions
between confidentiality and transparency in international arbitration,
The American Review of International Arbitration (2003), 121.
[11] Cindy G. Buys, Ibid,
135.
[12] Despina Mavromati &
Matthieu Reeb, The Code of the Court of
Arbitration for Sport, Commentary, Cases and Materials, Kluwer Law
International (2015), 588.
[13] Stephan W. Schill, Five
times transparency in international investment law (2014), The Journal
of World Investment and Trade, Volume 15, Issue 3-4, 369.
[14] The
accuracy of the findings is limited by the lack of precision of the CAS’
statistics. Namely, in the statistics section of the website it is possible to
retrieve only data referring to the Appeals submitted every year but not to the
appeal awards rendered. Therefore, our yearly comparison cannot take fully into
account the temporal shift between the submission of the case and the rendering
of the decision (as well as the limited number of cases which were withdrawn).
In other words, in reality, the share of awards published is probably slightly
higher than indicated in the table.
[15] Gabrielle Kaufmann-Kohler,
Arbitral
Precedent: Dream, Necessity or Excuse? (2006). Arbitration International, 365.
[16] CAS
96/149, A. C[ullwick] v. FINA, p. 251, 258 – 259, cited in Antonio Rigozzi,
l’Arbitrage internationale en matiére de
sport, (2005), 638.
[17] Antonio Rigozzi, l’Arbitrage
internationale en matiére de sport, (2005), 640.
[18] Going back with the memory
to a few years ago, it has be noted how Pavle Jovanovic’s counsel would have
had great benefit in having the possibility to read the award rendered in the
case that saw the French judoka Djamel Bouras opposing the International Judo
Federation in a doping case, which was not yet published when the Jovanovic case
was submitted. Had the award been promptly published he would have had the
chance to invoke the solution contained therein (See Antonio Rigozzi, l’Arbitrage internationale en matiére de
sport, (2005), 639).
[19] Antonio Rigozzi, ibid, 641.
[20] Antonio Rigozzi, ibid, 642.
[21] Anne
Peters, The
Transparency Turn of International Law (2015), The Chinese Journal of
Global Governance, 3.
[22] For a wider discussion on
the lack of consent in sports arbitration, see A. Rigozzi & F.
Robert-Tissot, “Consent”
in Sports Arbitration: Its Multiple Aspects’, in E. Geisinger & E. Trabaldo de Mestral (eds.), Sports
Arbitration: A Coach for other players? (2015),
59 -60; A.
M. Steingruber, Sports Arbitration: how
the structure and other features of competitive sports affect consent as it
relates to waiving judicial control, 20 American Review of International
Arbitration (2009), 59, 73; M.A. Weston, Doping Control, Mandatory Arbitration, and
Process Dangers for Accused Athletes in International Sports, 10
Pepperdine Dispute Resolution Law Journal
(2009), 5, 8; and D. H. Yi, Turning Medals into Metal: Evaluating the
Court of Arbitration of sport as an international tribunal, 6 Asper
Review of International Business and Trade Law (2006), 289, 312.