One obvious possible point of improvement is how arbitrators are selected. Under the contractual model of arbitration, the parties appointing the arbitrators arguably provide some legitimacy. However, it is also problematic because arbitrators as agents must balance the interests of their principals and their duty to provide a neutral forum,Footnote 28 which is the number one perceived advantage of arbitration.Footnote 29 The system for arbitrator selection used in the CAS has some particularly problematic aspects in this regard due to the outsized influence of the SGBs in the selection process, a link that a minority of the ECtHR characterized as “worrying” in Mutu & Pechstein.Footnote 30 The CAS was significantly reformed in 1994 in response to the criticism raised in Gundel.Footnote 31 The decision in Mutu & Pechstein poses a comparable impetus for meaningful CAS reform.Footnote 32
Although the need for reform is and has for some time been obvious, there are few clear examples of alternative selection procedures on which to model such reform. One interesting exception is, however, the novel Investment Court System (ICS) introduced by the European Union (EU) as a new form for investor-state dispute settlement (ISDS). The Investment Court System was developed as a response to a legitimacy crisis facing arbitration-based ISDS.Footnote 33 It was introduced by the EU in several of its bilateral investment agreements;Footnote 34 the EU is also proposing it as a model for reformed ISDS in multilateral investment agreements. While retaining some of the main advantage of arbitration, such as recognition and enforcement on the basis of the New York Convention,Footnote 35 ICS deviates in multiple regards from the currently dominant forms of ISDS. ICS is centered around a permanent two-tiered institution that imports into arbitration features of traditional state-based courts. A feature of particular relevance in this context is that ICS does away with direct party involvement in the formation of arbitration panels. Instead, ICS employs standing arbitrator–judges who are appointed to serve with the institution itself for fixed periods of time. These individuals are assigned to serve on panels to resolve individual disputes in a rotating and unpredictable manner, much like in state-based courts.
What would it mean if the CAS was to adopt a system for panel formation similar to that of ICS? The ICS model for selecting and organizing arbitrator–judges offers some distinct advantages. First, it could help reduce real or perceived problems with neutrality and impartiality, mainly by doing away with direct party involvement in panel formation. Assigned arbitrator–judges to individual cases using a random or otherwise unpredictable procedure would also enhance panel neutrality. The CAS was a forerunner in 2009 when it banned so-called double hatting,Footnote 36 i.e. where arbitrators also work as counsel, a practice that causes major harm to the legitimacy of arbitration.Footnote 37 It is particularly important to keep roles separate in a highly specialized field such as sports law that relies on a relatively small number of experts and an ICS-like system could help in this regard. Finally, as the organization would be similar to that of state-based courts, the substantive and procedural conditions for appointment, reappointment, and removal could be modeled based on established and well-studied international best practice at such courts.
Second, by decreasing the number of individuals involved in decision making, an ICS-like system could increase the quality of the arbitrators and, thereby, of the functioning of the CAS. A controversial aspect of how the CAS is currently organized is that parties must select arbitrators from a list drawn up by the ICAS.Footnote 38 This limits party autonomy, and the influence of SGBs on ICAS is problematic. The main justification for this system is to ensure that arbitrators have good knowledge of sports and sports law.Footnote 39 An ICS-like system would drastically reduce the number of individuals involved and thereby make it easier to identify the most qualified arbitrators. Along similar lines, it would also make it easier to select for high standards of ethics, independence, and professionalism.
Third, restricting the number of arbitrators that decide cases in the CAS and allowing these individuals the opportunity to do so regularly or even exclusively foster greater jurisprudential consistency, both because the arbitrator–judges would become increasingly familiar with existing jurisprudence and because it is easier to maintain a consistent body of case law within a smaller group of arbitrators. The value of this is obvious since, as discussed above, one of the CAS’s main functions is to provide a consistent body of case law.
Fourth, one challenge to the legitimacy of international adjudication is lack of diversity and representativeness among the decision makers,Footnote 40 and the CAS is no exception in this regard.Footnote 41 An ICS-like system would provide an opportunity for enhanced legitimacy, as arbitrator–judges could be selected to ensure greater diversity with regard to, for example, gender, age, and geographical origin of the arbitrators. This could help enhance the CAS’s legitimacy in the eyes of those who may now feel that their experiences and views are under-represented among CAS arbitrators.
Fifth, a CAS remodeled in this way could provide swifter adjudication. One of the main reasons behind the establishment of the CAS was the particularly great need in sports for expediency in resolving disputes and the hope that the CAS would be able to provide such swift relief.Footnote 42 Today, much time in the CAS is spent on the formation of panels, including both identifying interested arbitrators and for them finding sufficient time to devote to the case. Under an ICS-like system, it would be possible to form panels and schedule times for hearings, deliberations, etc., in advance, and this should reasonably allow for a significant reduction of the time between referral and award compared to the current system.
Such a radical reform would obviously require careful consideration. It would place significant power over the rules and principles governing sports and sport stakeholders into relatively few hands. This does not necessarily mean a drastic change compared to the current situation. The vast majority of all appointments to CAS panels are given to a relatively small number of arbitrators.Footnote 43 Nevertheless, very important for both the quality of the CAS’s activities and its institutional legitimacy would be who are the standing arbitrator–judges, how these individuals are selected, and who is involved in selecting them. The selection process would need to include real and meaningful involvement by all sport stakeholders, not only SGBs.Footnote 44
One should also not underestimate the difficulties involved in introducing new forms of dispute resolution. After all, its time-tested nature and strong roots are prominent explanations why arbitration plays such an important role in transnational legal orders. However, to make much needed adjustments should be significantly easier if one follows in the rather deep footsteps of the European Union.