Abstract
The men and women that serve as arbitrators make up the essence of the Court of Arbitration for Sport (CAS) and have the power not only to decide individual disputes but also to shape international sports law more generally. To understand who serves on CAS panels is therefore important in order to understand CAS and its jurisprudence. As shown in this chapter, not just anyone gets to serve on CAS panels, not even anyone that appears on the list of CAS arbitrators. When studying a large number of CAS decisions it becomes clear that those who appoint arbitrators tend to appoint certain arbitrators. The chapter explores the nature and causes of such tendencies and their implications.
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Notes
- 1.
- 2.
- 3.
- 4.
See Sect. 2.3.
- 5.
Article S3 CAS Code.
- 6.
Article S14 CAS Code.
- 7.
See e.g. Reeb 2004, p. xxxii (noting that the list at that time included 241 arbitrators).
- 8.
- 9.
This statement is based on the list available at http://www.tas-cas.org/en/arbitration/list-of-arbitrators-general-list.html, accessed 11 October 2018.
- 10.
As Duval points out, it is also a question of the legitimacy of CAS arbitration. Duval 2013, p. 834.
- 11.
CAS 2002/A/370, Lazutina I (regarding disqualification); CAS 2002/A/371, Danilova (regarding suspension ); CAS 2002/A/397, Lazutina II (regarding suspension).
- 12.
SFT ’s decision 27 May 2003 in case 4P.267/2002, ATF 129 III 445 (Lazutina & Danilova v. IOC).
- 13.
Ibid., pp. 456–457.
- 14.
Ibid., pp. 457–458 (“Les arbitres figurant sur la liste sont au nombre de 150 au moins et le TAS en compte environ 200 à l’heure actuelle. La possibilité de choix offerte aux parties est ainsi bien réelle, quoi qu’en disent les recourantes, même si l’on tient compte de la nationalité, de la langue et de la discipline sportive pratiquée par l’athlète qui saisit le TAS.”).
- 15.
See also the ECtHR’s decision in Mutu & Pechstein v. Switzerland, app. no. 40575/10 and 67474/10, para 157 (finding that CAS exercises a “real influence” over the nomination procedure but that a violation of Article 6 ECHR also requires showing individual lack of independence and impartiality ).
- 16.
See e.g. Reeb 2002, p. xxx.
- 17.
See also Article S14 CAS Code (requiring appointable arbitrators to have “recognized competence with regard to sports law and/or international arbitration” and “a good knowledge of sport”). But see Cavalieros and Kim 2015, p. 249 (“It is debatable whether sports arbitration is specialized enough to justify the existence of a closed-list system.”).
- 18.
- 19.
See below Fig. 8.1 Decisions per Arbitrator.
- 20.
The 98 (unique) CAS arbitrators with the lowest number of appointments found in the collected data have collectively been appointed 130 times.
- 21.
Compare the distribution of references to case law discussed in Sect. 5.2.
- 22.
The members of this group are marked in Fig. 8.1 Decisions per Arbitrator above.
- 23.
Puig 2014, pp. 419–420.
- 24.
See Fig. 3.13 CAS Procedure Length Over Time.
- 25.
Cf. Giordetti 2013, p. 481.
- 26.
Thus, one can argue that expanding the CAS list to include arbitrators that are in some regard different than those already included may be valuable even if adding more arbitrators as such is not.
- 27.
See Sect. 10.4.
- 28.
Latty 2007, p. 262.
- 29.
See below Fig. 8.2 Arbitrator Appointments by Nationality. In the data, there are 627 appointments of Swiss arbitrators. British is the second most common nationality of CAS arbitrators with a total of 220 appointments. The nationality of the arbitrators was decided on the basis of, in order, the nationality stated in CAS decisions, the nationality stated in the CAS arbitrator database, and other sources describing the arbitrators found on the Internet.
- 30.
For example, the appearance of Portuguese arbitrators in CAS is relatively common. With a total of 46 appearances it is the tenth most common nationality of CAS arbitrators. However, 38 of these appearances were made by a single individual: Lisbon-based attorney-at-law Rui Botica Santos.
- 31.
In the data we find 38 different Swiss arbitrators. The second largest group is American of which there are 18 individuals.
- 32.
Cf. Duval 2015, p. 403 (“La Suisse semble être un paradis juridique pour l’arbitrage sportif.”).
- 33.
- 34.
In the cases collected and studied here there are a combined total of 220 appearances by American and Canadian arbitrators which can be compared to 176 appearances by German arbitrators.
- 35.
Puig 2014, p. 406.
- 36.
Franck 2007, p. 78.
- 37.
See below Sect. 8.8.
- 38.
Puig 2014, pp. 421–422 (commenting on ICSID “power-brokers”).
- 39.
Giordetti 2013, p. 466 and sources cited.
- 40.
The impact of this effect is however reduced by the fact that the number of cases lodged with CAS was initially low and has since strongly increased. See Sect. 3.3.
- 41.
For example, based on the collected decisions, Michael Beloff made his debut in CAS in the Ad Hoc Division for the 1996 Atlanta Olympic Games . If arbitration appointments were distributed randomly among all arbitrators that had appeared on a CAS panel at least once, Beloff would have been appointed in 0.6 percent of all CAS decisions that were decided in and after 1996. Had he been appointed exactly that many times, his ratio of actual to be expected appointments would be 1. If he had received a lower than expected number of appointments, that number would be less than 1. Conversely, if he had received a higher than expected number of appointments, that number would be greater than 1. Beloff actually appears as an arbitrator in 3 percent of all collected CAS decisions rendered since 1996. Beloff is thus “over-appointed” by a ratio of more than four to one (3/0.6) compared to an equal distribution of appointments among all appointed arbitrators.
- 42.
See below Fig. 8.3 Appointments by First Decision Year.
- 43.
See below Fig. 8.3 Appointments by First Decision Year. Contrary to this conclusion, arbitrators that were appointed for the first time in 2014 have received significantly more than their expected number of appointments. However, the results for the most recent years are skewed by the small sample size and are not reliable. For example, the three 2014 debutants with the highest ratio have only appeared in two decisions, all decided as part of the CAS Ad Hoc Division for the XVII Asian Games in Incheon. However, the collected data only includes 28 CAS decisions from 2014 and these two appointments therefore make up a large portion.
- 44.
For example, with his 16 appointments, including 10 as panel president , since his debut in 2006, Danish attorney Lars Hilliger has established a strong position quicker than expected.
- 45.
See Chap. 4.
- 46.
See also Sect. 8.6.
- 47.
This can be compared to how local courts within a national system of courts or independent chambers within a court may develop tendencies that differentiates them from other courts or chambers.
- 48.
See Sect. 8.3.
- 49.
This is equivalent to 0.6% of all decisions in the dataset.
- 50.
These proportions are calculated by dividing the number of times two particular arbitrators appear on the same panel with the number of times each of those arbitrators appear on a panel, thus disregarding all appointments as sole arbitrator s.
- 51.
This is a description of the relationship between Martens and Ellicott. See below Fig. 8.4 Co-Appearing Arbitrators.
- 52.
See below Fig. 8.4 Co-Appearing Arbitrators (minimum 5 co-appearances representing at least 20% of all appearances). Vertex size is proportional to each arbitrators’ number of non-sole arbitrator appointments, which is also given in the vertex label. Edge labels provide the number of co-appearances and vertex color represents percentage of arbitrators’ appointments in football-related disputes.
- 53.
Most of the seventeen arbitrators with the highest number of decisions are included. See above Fig. 8.1 Decisions per Arbitrator. There are, however, notable exceptions such as Beloff, Coccia, Nater, and McLaren.
- 54.
22% of all co-appearances involve two super-arbitrators . This is in line with what can be expected on three-arbitrator panels considering that super-arbitrators receive 42% of all appointments.
- 55.
For example, Carrard appears in the data on panels together with 70 different arbitrators.
- 56.
See Sect. 2.3.
- 57.
See Sect. 2.3.
- 58.
Unfortunately, the available sample of CAS decisions in Ordinary Arbitration Procedures is too limited to empirically test this hypothesis.
- 59.
See below Sect. 8.9.
- 60.
See above Fig. 8.4 Co-Appearing Arbitrators.
- 61.
They appear for the first time in the dataset in 2002 and 2003 respectively.
- 62.
First appears in the data in 2002.
- 63.
CAS 2008/A/1551, Cherubin; CAS 2008/A/1759 & 1778, Jaben; CAS 2011/A/2426, Adamu.
- 64.
CAS 2007/A/1251, Aris II.
- 65.
See above Fig. 8.4 Co-Appearing Arbitrators.
- 66.
CAS 2010/A/2193, Cagliari Calcio v. Olimpia Deportivo; CAS 2011/A/2557, Dynamo Kyiv v. Nancy-Lorraine; CAS 2012/A/2707, Nancy-Lorraine v. Dynamo Kyiv.
- 67.
CAS 2005/A/893, Metsu; CAS 2005/A/902 & 903, Mexes II; CAS 2007/A/1358, Lombe; CAS 2007/A/1359, Bete; CAS 2008/A/1665, J. v. Udinese Calcio SpA; CAS 2010/O/2132, Pereira Dias; CAS 2011/A/2539, Monchengladbach v. Boca Juniors.
- 68.
CAS 2005/A/916, AS Roma v. FIFA.
- 69.
CAS 2008/A/1633, FC Schalke 04 v. CBF; CAS 2008/A/1634, Hertha BSC v. FAS.
- 70.
CAS 2008/O/1808, KFF v. FIFA.
- 71.
See below Fig. 8.5 Co-Appearances and Football.
- 72.
See Sect. 2.3.
- 73.
- 74.
Latty 2007, p. 261.
- 75.
Ibid.
- 76.
See Sect. 2.4.
- 77.
22% of all arbitrators in the dataset (51 of 229) appear in cases that are football-related in 75% of the cases or more. See also above Fig. 8.5 Co-Appearances and Football. If we only consider arbitrators that appear in at least three cases that number is 17% (22 of 128).
- 78.
See above Fig. 8.5 Co-Appearances and Football.
- 79.
45% of all arbitrators in the dataset (103 of 229) do not appear in any panel adjudicating a football-related dispute. See also below Fig. 8.6 Football Arbitrators - Distribution and Correlation. However, it should be noted that many of those arbitrators have participated in very few cases. Of the arbitrators that appear in at least three cases, i.e. the arbitrators represented above in Fig. 8.5 Co-Appearances and Football, 28% (36 of 128) have not adjudicated any football-related dispute.
- 80.
- 81.
See below Fig. 8.6 Football Arbitrators - Distribution and Correlation.
- 82.
- 83.
See Chap. 5.
- 84.
See Chap. 6.
- 85.
CAS decisions are written in a way that provides little to no insight into the opinions of the individual panelists.
- 86.
See also Sect. 1.6. As discussed immediately below, indegree centrality and PageRank are often strongly correlated, but there are situations where they differ significantly.
- 87.
See Sect. 5.2.
- 88.
- 89.
A different issue is how many observations are needed to attain a reliable measurement. Because of how indegree centrality and PageRank is distributed across CAS jurisprudence (see Sect. 5.2) arbitrators’ mean values can vary extensively at a low number of observations. For this reason, Fig. 8.9 Mean PageRank and Indegree by Arbitrator below only includes arbitrators with at least five CAS decisions in the dataset. In the discussion below, this is supplemented by a qualitative analysis of individual arbitrators.
- 90.
Bernasconi, Carrard, Haas, Martens, and Pinto. See also above Fig. 8.1 Decisions per Arbitrator.
- 91.
With 22 decided cases, Fortier ranks forty-seventh among all CAS arbitrators by total number of decisions.
- 92.
Blackaby et al. 2015, p. 254.
- 93.
Slaoui 2009, p. 119.
- 94.
See e.g. Article 190.2(a) PILA.
- 95.
- 96.
Article 33 CAS Code. This conforms closely with the IBA Guidelines on Conflict of Interest (2014), general standards 1 and 3.
- 97.
See above Sect. 8.2.
- 98.
- 99.
The IBA Guidelines on Conflict of Interest (2014), Non-Waivable Red List, para 1.4. See also e.g. Puig 2016, pp. 15–16.
- 100.
Slaoui 2009, p. 109.
- 101.
- 102.
- 103.
What in this context constitutes “sufficiently frequent” may vary depending on the circumstances, but one standard of possible conflict is two appointments in a three-year period. The IBA Guidelines on Conflict of Interest (2014), Orange List, para 3.1.5. See also Slaoui 2009.
- 104.
See also Sect. 10.4. Some football clubs also appear before CAS noticeably frequently.
- 105.
Kaufmann-Kohler and Rigozzi 2015, pp. 198–199.
- 106.
- 107.
See above Sect. 8.3.
- 108.
The total number of disputes included in the data that the individual parties are involved in drop quickly below these top twenty. Sole arbitrators are decided by mutual agreement or by the CAS Division President and can therefore not reliably be connected to a particular party. See Sect. 2.3. See also Mavromati and Reeb 2015, p. 269.
- 109.
See below Fig. 8.10 Repeat Parties and Arbitrators: All Relationships.
- 110.
I.e. the percentage of a party’s total number of nominations that are made to each individual nominated arbitrator.
- 111.
See below Fig. 8.10 Repeat Parties and Arbitrators: All Relationships. The median proportion of all party-arbitrator relationships relative to the sum of the nominating party’s nominations is 5.26.
- 112.
It should be noted that this number varies a lot between different parties but that it follows quite closely the total number of CAS disputes that the party has been involved in. This makes natural sense as the more disputes a party has been involved in, the more opportunities it has had to appoint different arbitrators.
- 113.
Cf. Coccia 2013, p. 8.
- 114.
The average number of party-arbitrator relationships for all nominated arbitrators is 2.45.
- 115.
See also Sect. 10.1.
- 116.
Although all three classes are well represented in the data, they are not equally represented: individuals have participated in 506 appointments, clubs in 312 appointments, and SGBs in 819 appointments. The arbitrators’ absolute number of appointments by party class is irrelevant and can be misleading when determining party class preferences. We therefore instead consider what share of each classes’ appointments each arbitrator has received. For example, Beloff has received 2.2% of the individuals’ appointments, 1.6% of the clubs’ appointments, and 3.5% of the SGBs’ appointments.
- 117.
- 118.
As seen in Fig. 8.11 Arbitrators’ Appointments by Party Class there are a few outliers. However, it should be noted that these outliers disappear if one increases the minimum number of appointments provided. It is thus possible that these outliers may have more to do with the underlying data than any actual, general differences in preference.
- 119.
See above Sect. 8.5.
- 120.
32 out of 270.
- 121.
See below Fig. 8.12 Repeat Parties and Arbitrators - Strong Relationships.
- 122.
This is the aforementioned Quentin Byrne-Sutton who WADA nominated in 15.6% of all CAS disputes included in the dataset.
- 123.
The IOC nominated Dirk-Reiner Martens in 20.5% of all disputes.
- 124.
Bernasconi, Carrard, Martens, Oswald, and Byrne-Sutton.
- 125.
Haas, Beloff, Pinto, Fumagalli, and Coccia.
- 126.
- 127.
The most obvious example of this is the relationship between the International Ice Hockey Federation (IIHF) and the Swiss attorney Hans Nater who has received half of all IIHF’s nominations. This is the strongest party-arbitrator relationship in the data. However, this may not mean much considering that in the collected data IIHF is only involved in four decisions and Nater has only been appointed twice.
- 128.
The data contains 52 and 29 decisions where they appeared as parties respectively.
- 129.
Paulsson 2010, pp. 350–351.
- 130.
For example, both Denis Oswald and Olivier Carrard have extensive experience with working in SGBs.
- 131.
Vaitiekunas 2014, p. 196.
- 132.
- 133.
Puig 2016, p. 16.
- 134.
The information is imperfect in both cases as the party-appointed arbitrator is only one of three members on a panel that issues a common decision.
- 135.
See also Chap. 10.
- 136.
These are the same SGBs presented above in Fig. 8.10 Repeat Parties and Arbitrators - All Relationships.
- 137.
It should be noted that because the dataset is incomplete, this information is also incomplete. This does not however impair the ability to compare the tendency towards repeat appointments after wins and losses within the dataset.
- 138.
See below Table 8.1 Winning, Losing, and Reappointing.
- 139.
Ibid.
- 140.
- 141.
See Sect. 9.2.4.
- 142.
Blackaby et al. 2015, p. 250; LaLive 1984, p. 25. For the sake of brevity, the term “nationality ” is in this section used in a broad sense to include not only the citizenship and country of birth of natural persons, but also where they reside and the nation of incorporation and primary activity of legal persons.
- 143.
- 144.
- 145.
Paulsson 2010, p. 352.
- 146.
- 147.
See e.g. Article 6(7) UNCITRAL Rules; Article 6.1 LCIA Arbitration Rules; Article 13 ICC Rules of Arbitration; Article 20(b) WIPO Arbitration Rules; Article 1(3) ICSID Arbitration Rules.
- 148.
See Article R40 CAS Code. Nor is this required under Swiss law. Zuberbühler et al. 2013, p. 100.
- 149.
For the purpose of this study, this is for parties that are natural persons the nation of their citizenship (normally as designated by CAS in its decision); for clubs the nation where they are established; and for national federations the nation where they are active in organizing sport.
- 150.
Switzerland is the nation with which most international SGBs have their closest connection, having either their seat or their principal activity in Switzerland.
- 151.
In cases where several parties cooperate in appointing an arbitrator, e.g. as co-applicants, the shortest distance between any of the appointing parties and the appointed arbitrator was used. Google Maps Geocoding API was used to define the geographic position of and measure the distance between two actors.
- 152.
I.e. the median distance. See also below Fig. 8.13 Party-Arbitrator Distance.
- 153.
See below Fig. 8.13 Party-Arbitrator Distance.
- 154.
Cf. Paulsson 2010, p. 350.
- 155.
Cf. LaLive 1984, p. 26 (“If the nationality (or, to a lesser extent, the residence) is deemed relevant at all, it is because of its supposed implications: by an instinctive reaction, parties will generally assume without much further thought that a prospective arbitrator is likely, or even bound, to share his country’s ideology and common values, if any.”).
- 156.
- 157.
Lee 2008, p. 604.
- 158.
Adopting national neutrality rules would be insufficient and to create broader rules that ensure cultural neutrality seems, to me, quite difficult.
- 159.
Bond 1991, p. 6.
- 160.
Ibid. Cf. LaLive 1984, p. 26.
- 161.
The veracity of this explanation could perhaps be tested by comparing CAS to an arbitration tribunal where the seat and the arbitrators are less centred in Europe.
- 162.
Article R40.2 CAS Code. If the party-appointed arbitrators fail to reach an agreement, the third arbitrator is appointed by the president of the CAS Division. See also Sect. 2.3.
- 163.
Article R54 CAS Code. See also Sect. 2.3.
- 164.
It is difficult to say with certainty how frequently CAS departs from the general procedure described above. The matter has not been commented on in existing literature and in all of the 830 CAS decisions examined I only found a handful of cases where the Division President ’s role in the panel president appointment procedure was explicitly addressed. For example, in CAS 2011/A/2364, Butt, the parties agreed that CAS would appoint the panel president. Another example is the decision in CAS 2002/A/2731, Ferreira, para 22, where it appears that the CAS Division President was the one nominating the panel president. From the scarcity of such examples it appears that the general rules normally apply.
- 165.
See above Sect. 8.3.
- 166.
See below Fig. 8.14 President Appointments and Other Appointments.
- 167.
Cf. Paulsson 2010, pp. 350–351.
- 168.
Article R58 CAS Code.
- 169.
To measure this, we compare how many times each arbitrator appears in a panel as the panel president to how many times they appear in another capacity.
- 170.
This is for example true for Carrard, Coccia, Martens, and Beloff.
- 171.
93 non-president and 6 president appointment s. The same is for example true for Oswald with 54 and 1 appointments respectively.
- 172.
Rasquin was an active athlete who, among other things, participated in the 1952 and 1956 Summer Olympic Games . He later became the president of the Luxembourg NOC (Comité Olympique et Sportif Luxembourgeois).
- 173.
See above Fig. 8.14 President Appointments and Other Appointments.
- 174.
See above Sect. 8.3.
- 175.
See Chap. 5.
- 176.
For example, Rasquin participated in e.g. CAS 92/63, Gundel, CAS 95/141, Chagnaud, and CAS 94/128, UCI & CONI; Coccia participated in e.g. CAS 98/200, AEK Athens, CAS 99/A/246, Ward, CAS 2000/A/274, Susin, CAS 2004/A/748, Ekimov v. Hamilton, and CAS 2005/A/830, Squiazzato; Martens participated in e.g. CAS 96/158, Foschi and CAS 2001/A/317, Aanes; Beloff participated in e.g. CAS 96/149, Cullwick, CAS 98/208, Wang et al., CAS 98/211, de Bruin, CAS 99/A/234 and CAS 2000/A/270, Meca-Medina I and II, and CAS 2002/O/273, Scott.
- 177.
Puig 2016, p. 33 and sources cited.
- 178.
See above Sect. 8.4.
- 179.
CAS 91/56, S v. FEI; CAS 92/71, SJ v. FEI; CAS 92/73, N v. FEI; CAS 92/63, Gundel; CAS 92/86, W v. FEI; CAS 94/123, Brandt Hagen.
- 180.
CAS 92/71, SJ v. FEI; CAS 94/123, Brandt Hagen.
- 181.
Article S6 CAS Code.
- 182.
- 183.
Rules R40.1 (Ordinary Arbitration Procedure ) and R50 (Appeal Arbitration Procedures) CAS Code.
- 184.
Article R40.2 CAS Code. However, if the parties cannot agree on a Sole arbitrator, one will be selected by the CAS Division president.
- 185.
Article R54 CAS Code.
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Lindholm, J. (2019). CAS Arbitrators and Their Relationships. In: The Court of Arbitration for Sport and Its Jurisprudence. ASSER International Sports Law Series. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-285-9_8
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