ICC Dossiers

I. INTRODUCTION

There are many methods of dispute resolution in sport, perhaps the most well-known being arbitration before the Court of Arbitration for Sport (CAS) and the Basketball Arbitral Tribunal (BAT).

Both these tribunals deal with financial disputes in the world of sport, however the CAS also deals with disciplinary matters, such as anti-doping disputes, and more general matters relating to the organisation of sports and the application of sports specific regulations.

Matters before the BAT are conducted according to the BAT Arbitration Rules (BAT Rules),¹ and those before the CAS according to the CAS Code of Sports-related Arbitration (the CAS Code).²

Both systems have been extensively examined by commentators. Here, I will discuss some of the main features of sports arbitration, both before the CAS and the BAT, which I think are of relevance for the topic of this book. In so doing, I will be guided by the following questions:

II. COURT OF ARBITRATION FOR SPORT (CAS)

A. Raison d’être

Sports arbitration was created by the sports-governing bodies to deal with the realities of a world that does not easily fit into the traditional state court system.

The key historical reasons that sports arbitration was considered necessary were: (i) to avoid athletes bringing sports disputes before the state courts, which would have disrupted the smooth running of competitions; and (ii) to provide for a measure of uniformity for athletes who were competing across jurisdictions with different systems of law.

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The nature of sports required that the envisaged dispute resolution system be fast. This continues to be an important element, particularly when it 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 outcome of his or her case.

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 with sports-related matters in the most efficient way possible.

In addition to disciplinary and eligibility matters, the sports world needed a forum that could deal efficiently with disputes arising from sports governance matters,³ and in connection with the hosting of events.⁴

With speed comes an inevitable limitation of the right to be heard. Hence, 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 the athletes’) rights.

The manner and extent to which sports arbitration has managed to balance those inherently competing interests is certainly of relevance for more traditional forms of arbitration, which are often considered to have become overly formalistic and thus to have ‘betrayed’ (or failed in achieving) the original idea of arbitration.⁵

B. CAS in general

a. Structure

The CAS as we now know it is made up of two distinct bodies (Article S1 CAS Code):

• The International Council of Arbitration for Sport (ICAS); and
• The Court of Arbitration for Sport (CAS) proper.

1. The ICAS

One could say that the ICAS is the CAS’s "equivalent" of the ICC Court of Arbitration for ICC arbitration. Before examining the extent to which this equivalence is real, it is worth recalling the historical reasons behind the creation of the ICAS.

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 Gundel decision.⁶ In Gundel, the Swiss Supreme Court had stated that CAS would not qualify as a genuine arbitration system if one of the parties to a dispute before it had an overwhelming influence on the manner in which the panel hearing the case was composed. Back then, the IOC (potentially a party to disputes brought before the CAS) appointed all the individuals appearing on the CAS list of arbitrators, from which panel members were (and still are) mandatorily to be appointed.

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 [Page90:] safeguard the independence of CAS and the rights of parties". The ICAS is also responsible for the administration and financing of the CAS (Article S2 CAS Code).

The ICAS is composed of 20 members who must be "experienced jurists". The appointment of members is as follows:

• Four members are appointed by the International Federations;⁷
• Four members are appointed by the Association of the National Olympic Committees (ANOC);
• Four members are appointed by the International Olympic Committee (IOC);
• These 12 members then appoint another four members “after appropriate consultation with a view to safeguarding the interests of the athletes”; and
• These 16 members then appoint a further four members “chosen from among personalities independent of the bodies designating the other members of the ICAS” (Article S4 CAS Code).

According to Article S5 of the CAS Code, ICAS members are appointed for renewable periods of four years and must sign a declaration "undertaking to exercise their function personally, with total objectivity and independence in conformity with [the Code]." They are bound by confidentiality obligations, and may not appear on the list of CAS arbitrators, or act as counsel to any party in proceedings before the CAS.

The functions of the ICAS are: (i) adopting and amending the Code;⁸ (ii) electing (from within the ICAS members) the President and Vice-Presidents of the ICAS as well as the Presidents and their deputies for both the Ordinary and appeals divisions of the CAS; (iii) appointing and removing the arbitrators and mediators who serve on the CAS closed list; (iv) deciding on challenges and requests for the removal of arbitrators from cases; (v) supervising the financing of CAS; (vi) appointing the CAS Secretary General; (vii) supervising the activities of the CAS Court Office; (viii) providing for "regional or local, permanent or ad hoc arbitration"; (ix) creating a legal aid fund and legal aid guidelines;⁹ and (x) taking "any other action which it deems necessary to protect the rights of the parties and to promote the settlement of sports-related disputes through arbitration and mediation" (Article S6 CAS Code).

The ICAS operates either in its full composition or through its Board (being the President and two Vice-Presidents of ICAS and the Presidents of the CAS Ordinary and Appeals divisions). It meets "whenever the activity of the CAS so requires, but at least once a year" (Articles S7 and S9 of the Code). 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 Board]" (Articles S8(4) and S10 CAS Code).

2. The CAS

CAS comprises two arbitration divisions: (i) the Appeals Arbitration Division, which — as the name suggests — deals with appeals from decisions of sports bodies; and (ii) the Ordinary Arbitration Division, which deals [Page91:] generally with all other sports-related disputes.¹⁰ Both divisions are headed by a President, who can undertake the initial steps in an arbitration before an arbitral panel is appointed.

3. The CAS Secretary General and the CAS Court Office

The CAS Secretary General supervises the CAS Court Office. In this sense his function is not fundamentally different from that of the Secretary General of the ICC Court of Arbitration with the following main exceptions: (i) the CAS Secretary General is personally in charge of the scrutiny of the awards; and (ii) fixes the amount of the arbitration costs.¹¹ This concentration of prerogatives was originally intended to avoid delays, given the paramount need for speed in sports arbitration, but the reality is that it has probably had the opposite effect. Evidently, this particular feature of CAS arbitration is not something that other arbitration institutions should take as an example.

4. The CAS List of Arbitrators

The CAS maintains a closed list of arbitrators, from which the "Panels composed of one or three arbitrators" deciding the disputes are to be appointed (Article S3 CAS Code).

As just seen, the arbitrators on the list are designated by the ICAS (Articles S6(3) and S14 CAS Code) and appear on the CAS list for one or several renewable period(s) of four years (Article S5 CAS Code). To be considered for inclusion in the list, arbitrators must have appropriate legal training, recognised competence with regard to sports law and/or international arbitration, a good knowledge of sport in general and a good command of English or French (Article S13 CAS Code).

The number of arbitrators has significantly increased over the years to take into account: (i) the need to provide for a real choice;¹² (ii) the increasing number of cases; (iii) the risk of recurrent appointments; (iv) the need to address gender imbalance; and (iv) geographical distribution.

It remains to be seen whether the CAS list’s extension still achieves what the Swiss Supreme Court had identified as the main justifications of its mandatory character, namely the need to: (i) ensure that the arbitrators are experienced and knowledgeable in sports and arbitration matters; and (ii) promote the consistency of the case law.

Before being confirmed to sit in a specific arbitration, CAS arbitrators must sign a declaration of independence in which they also confirm that they have sufficient time to devote to the matter. Arbitrators who fail to make themselves available for appointment may theoretically risk not being reconfirmed by ICAS.¹³

b. Legal Framework

The seat of both the ICAS and the CAS is Lausanne, Switzerland. Article R28 of the CAS Code further provides that the seat of all CAS Panels is in Lausanne, irrespective of whether the hearing takes place outside Switzerland. This is considered as a mandatory CAS rule — similar to the scrutiny of the award under Article 34 of the ICC Rules — which means that 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 that all CAS proceedings will be governed by Swiss arbitration law,¹⁴ notably Chapter 12 of the Swiss Private International Law Act (PILA). This is not an insignificant choice, as Switzerland is known for being particularly arbitration friendly in terms of both arbitrability and the validity of arbitration agreements. Jurisdictional issues will thus be resolved in a consistent way, ensuring that athletes around the world will have the same access to arbitration.

As far as the arbitral procedure is concerned, the application of Swiss arbitration law grants a great deal of discretion to the arbitrators, while mandatorily requiring the observance of equal treatment, the parties’ right 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. From a sports arbitration perspective, the most notable features of Swiss arbitration law in this respect are that: (i) the right to be heard does not include the right to an oral hearing; (ii) the right to produce evidence must be exercised in accordance with the applicable arbitration rules; (iii) the right to invoke a breach of procedural rights is deemed to have been waived if the breach is not immediately raised during the arbitration; and (iv) there is no absolute right to a reasoned award.

The fact that the seat is in Switzerland is also relevant with respect to the supervisory role of Swiss courts. With specific respect to speed and 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 this principle, which was developed to prevent dilatory appeals in commercial cases, also in sports arbitration, even though this might lead to a situation where an athlete is not in a position to have his or her challenge of an arbitrator heard by a court before he or she has actually already served the ban.

Finally, under Swiss law the action to set aside the award is a "one shot" appeal, to be brought directly before the Swiss Supreme Court. The Court has proven to be sufficiently fast in ensuring that matters are finally resolved within a reasonable time frame and it is very rare that the stay of a CAS award is ordered during setting aside proceedings. Furthermore, the very narrow interpretation of the concept of public policy that the Court has developed for the purposes of reviewing awards in setting aside proceedings entails that the likelihood of an award being set aside is quite low.¹⁵

c. Arbitration Proceedings

The CAS Code contains two distinct sets of procedural rules: the provisions governing the CAS Ordinary Procedure (Articles R38 et seq), which apply in cases allocated to the CAS Ordinary Division, and the CAS Appeals Procedure rules (Articles R47 et seq), which apply in cases where a party challenges a decision by a sports-governing body, allocated to the CAS Appeals Division.¹⁶

The CAS Ordinary Arbitration Procedure is not fundamentally different from traditional commercial arbitration proceedings, which is not a surprise as the cases that are allocated to the Ordinary Division often concern commercial disputes which happen to be related to sport. The only [Page93:] distinctive aspects of the CAS Ordinary Procedure are that the arbitrators must be selected from the CAS List (Article R38 CAS Code), that Swiss law is applicable to the merits "by default", i.e. absent a choice of law by the parties (Article R45 CAS Code), and that the arbitration costs are significantly lower compared to those of the main institutions active in commercial arbitration.

Of greater interest for present purposes are the rules governing the CAS Appeals Procedure. CAS appeals arbitration deals with appeals filed against decisions issued by other arbitral or disciplinary tribunals, typically either national sports arbitration bodies or the internal disciplinary or judicial bodies of international sports federations.

C. CAS appeals proceedings

As mentioned, the rules applicable to CAS appeals proceedings are found in Article R47 et seq of the CAS Code. CAS appeals arbitration is a de novo procedure, meaning that the arbitral tribunal has "full power to review the facts and the law" (Article R57 CAS Code), even when the lower instance body was itself an arbitral tribunal.¹⁷

Perhaps the most important aspect of CAS appeals proceedings is that they are punctuated by short (and generally strict) deadlines. This is particularly true of the time limit to appeal the relevant decision, as the CAS will not hear an appeal that is out of time.

a. Time Limit to Appeal and Written Phase

In the absence of a time limit set in the statutes or regulations of a federation (or absent a previous agreement), the default time limit to bring an appeal is 21 days from the receipt of the impugned decision (Article R49 CAS Code). Most sports federations have adopted the 21-day time limit for appeal, reflecting the CAS Code’s default rule, in their own regulations. However, it should be noted that some federations’ regulations provide for much shorter time limits: the UEFA Statutes, for instance, require that appeals to the CAS be filed within a 10-day time limit.¹⁸

In commercial arbitration, it is rare for the arbitration agreement to contain time limits. Where time limits do exist, such agreements are not unproblematic, in particular as to the question of whether the time limit must be interpreted as an issue of admissibility or jurisdiction.¹⁹ In sports arbitration, the time limit to appeal is considered to be preclusive in nature, meaning that the matter cannot be appealed at a later point in time; it is res judicata.²⁰

After the filing of the Statement of Appeal (the equivalent of a request for arbitration) there is only one exchange of written submissions by the parties (the Appeal Brief and the Answer). Exceptions are possible if the matter is not urgent or if further information is essential to deciding the dispute, but this is rarely ordered in practice.

The deadlines for the parties to file their written submissions are short, reflecting the need to bring the matter to a close quickly. The Appeal Brief is to be filed within 10 days of the deadline to file the Statement of Appeal and the respondent is required to file its Answer within 20 days of receipt of the Appeal Brief.²¹ Short extensions of these deadlines are possible (and not [Page94:] uncommon) but they must be requested before the expiry of the initial deadline. Generally, the CAS will accommodate a first extension request of up to five working days, but additional or longer extensions are only granted restrictively, either where the opposing party has agreed or where justified grounds have been demonstrated (e.g. where documents require translation).

A paramount consideration is that all the evidence that a party wishes to rely upon must be put forward with its first (and generally final) written submission. There are very limited exceptions to this requirement. If a party wishes to introduce new evidence after the filing of its written submission (absent the opposing party’s consent) it is necessary to demonstrate that exceptional circumstances exist entitling the party in question to supplement its filing (e.g. commonly the party would have to convince the panel that the new evidence either did not exist or could not have been identified at the time of the original filing).²²

The short time limits have the effect of limiting the sophistication of written submissions, however a positive consequence of the restrictive approach of CAS arbitration to allowing further submissions is that parties are forced to be diligent in their evidence gathering.

b. Hearing

Unless both parties indicate that a hearing is not necessary (which is rare), or in the unlikely event that the panel indicates that it does not consider it necessary, a hearing is normally held in Lausanne. In the vast majority of CAS appeals arbitrations, the hearing is scheduled for a single day, unless the case is particularly complicated (with a large number of witnesses and/or experts).

The usual format of the hearing is to have a relatively short opening followed by an evidentiary phase where witnesses and experts are heard before both parties almost immediately present their oral closing submissions. As time considerations routinely arise, this format forces the parties to focus on the most important aspects of the case and the most relevant witnesses and experts. Moreover, the panel "may decide to conduct the hearing by video-conference or to hear some of the parties, witnesses and experts via tele-conference or video-conference. With the agreement of the parties, [it] may also exempt a witness or expert from appearing at the hearing if [he/she] has previously filed a statement" (Article R44.2 CAS Code).

No hearing transcript is provided, but the hearing is recorded and the audio file is made available to the parties upon request. Save for the rare case of post-hearing briefs in CAS appeals arbitrations, the principal relevance of the audio is in case of an appeal to the Swiss Supreme Court.

c. Appointment of Arbitrators

Article R33 of the CAS Code provides that "[e]very arbitrator shall appear on the list drawn up by the ICAS", i.e. the CAS List of Arbitrators. As mentioned, this is a closed list (currently containing 368 names)²³ and all arbitrators who sit on CAS panels must be appointed from this list. The CAS policy of maintaining a closed list of arbitrators effectively limits the fundamental freedom of the parties to appoint the arbitrator of their choice, but was upheld by the Swiss Supreme Court in the Lazutina case on the [Page95:] ground that it ensures that the arbitrators are specialists in the area of sports and will thus be able to issue fast and consistent decisions.²⁴ In recent years challenges to the legitimacy of the CAS framework, including the closed list of arbitrators, have arisen from the fallout of a case involving German ice skater Claudia Pechstein, who had her doping sanction upheld by CAS.²⁵ Ms Pechstein challenged the CAS framework through both the Swiss and the German courts, and in June of last year the German Supreme Court ultimately dismissed her challenges, finding that the CAS was a genuine arbitral tribunal.²⁶ Yet, the issue is not finally resolved as the case is currently before the German Constitutional Court, and a separate application by Ms Pechstein (against Switzerland) is also still pending in the European Court of Human Rights.²⁷

A relatively recent reform in the CAS system has been the prohibition on arbitrators from also acting as counsel for parties in CAS arbitrations.²⁸ This is a welcome development in the relatively specialised area of sports arbitration as it reduces the possibility and perception of conflict of interest issues. It is important to note however that this prohibition is only effective against the arbitrator ad personam and does not extend to the law firm where the arbitrator works.

The nomination of the appellant’s arbitrator in appeal proceedings must be made with the filing of the Statement of Appeal. The Statement of Appeal is then communicated to the opposing party which is given 10 days to nominate its own arbitrator. One disadvantage for the respondent in this procedure is that it is required to select an arbitrator without having had the opportunity to see the Appeal Brief and thus without knowing exactly the case that will be put forward by the appellant. This procedural imbalance could (and arguably should) be cured by introducing a rule providing that the time limit to nominate the respondent’s arbitrator runs from the notification of the Appeal Brief (and not the Statement of Appeal).

Under Article R54 of the CAS Code the CAS Court Office (through the President of the CAS Appeals Division) appoints the Panel President after having consulted with the two party appointed arbitrators. This is a controversial rule in CAS appeals arbitration. Historically, this process was implemented to avoid the well-known delays that chair selection can entail when the parties’ appointed arbitrators have to agree, in particular when it is accepted that they will consult with the parties to make sure that the chair they select is acceptable to both of them.

However, as the appointment by the CAS can still take quite a long time, one fails to see why the party appointed arbitrators could not be given a short time limit to agree upon a panel president before the CAS Court Office intervenes.

d. Challenge of Arbitrators

The CAS Code’s time limit of seven days to bring a challenge against an arbitrator is very short, so it requires the parties’ counsel to act quickly to investigate any potential conflicts.

In the event of a challenge a final decision is taken by ICAS. The reasoning in these decisions (which are not published) tends not to be very sophisticated. This is unfortunate as experience shows that sports [Page96:] arbitration raises interesting issues, in particular with respect to (i) recurrent appointments and (ii) public statements by arbitrators on issues arguably related to the subject matter of the proceedings.²⁹

Recurrent appointments can be particularly problematic as the sports-governing bodies are de facto ‘repeat users’ of CAS arbitration and are thus unavoidably perceived as more ‘interesting’ for arbitrators in terms of possible future appointments. While the CAS has managed to have a tailor-made exception included in footnote 5 of the IBA Guidelines on Conflicts of Interest in International Arbitration (2014),³⁰ it has also realised the potentially damaging nature of recurrent appointments, and has enacted a guideline that requires the arbitrators to systematically disclose their previous appointments by the same parties and the same lawyers.

As noted above, institutional decisions on arbitrator challenges are not immediately appealable. This means that the independence and impartiality of the arbitrators can only be reviewed in the context of an application for the annulment of the award. In sports matters, a court judgment on the regularity of the composition of the Panel may thus not be available within a meaningful time frame (for instance because the ban will have already been fully served by then).

e. Applicable Law

With regard to the applicable substantive law, Article R58 of the CAS Code provides that the arbitral tribunal ‘shall decide the dispute according to the applicable regulations and, subsidiarily, to the rules of law chosen by the parties or, in the absence of such a choice, according to the law of the country in which the federation, association or sports-related body which has issued the challenged decision is domiciled or according to the rules of law the Panel deems appropriate. In the latter case, the Panel shall give reasons for its decision’. In practice, the vast majority of issues will be decided according to the regulations each international federation has enacted, however as most international sports federations are domiciled in Switzerland, Swiss law is also applied as the substantive law in the majority of cases before the CAS.

Article R58 is a particularly convoluted choice-of-law provision, and its application is far from being straightforward. It is my understanding that its wording is meant to reflect that sports disputes should be primarily resolved according to the relevant sports rules, without completely ruling out the application of national law, and at the same time avoiding that national idiosyncrasies result in an uneven field of play as far as the treatment of athletes competing internationally against each other is 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 consistency does not exist.

f. Time Limit to Render the Award

The tight time limits for the various procedural steps discussed above would make little sense, for the purpose of ensuring a speedy resolution of the dispute, if the arbitrators would not then proceed to render an award in a 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 [Page97:] three months after the transfer of the file to the Panel’.³¹ In practice, unless there is an obvious need to issue a decision very quickly, in which case the operative part of the award is issued first, the CAS Code-prescribed time limit to communicate the award is very rarely met.

The issuance of an unreasoned award (consisting only of the operative part) is a necessity in some CAS cases and could potentially be an avenue worth exploring also in commercial arbitration in order to accelerate the process. After all, state courts routinely adjudicate cases this way without any due process concerns being voiced. With that said, it is also true that the more complex the cases are, the more likely it is that some potentially pivotal issues will be fully appreciated only in the course of the award-drafting process. In any event, the notification of the operative part of the award should not become an incentive to delay the notification of the reasons. Indeed, it is only with the notification of the reasons that an appeal against the award is possible.³² Any undue delay in the issuance of the reasons could potentially deprive a party (for instance an athlete serving a ban) of any meaningful right to challenge the award.³³

If the arbitrators do not avail themselves of the possibility to issue the 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 of the Appeals Arbitration Division upon a reasoned request from the President of the Panel’. As a matter of fact, the time limit is routinely extended sua sponte by the CAS (as the ICC Court may also do).³⁴

The CAS is increasingly criticised for delays in rendering the awards. The reasons for such delays are multiple: (i) the cases have become increasingly complex and the parties’ representation increasingly sophisticated, (ii) the parties understandably tend to appoint the most experienced arbitrators on the list, who in turn are busy people, (iii) scrutiny of all the awards by a single person (the Secretary General, as provided in Article R59(2) of the CAS Code) is no longer feasible within short timeframes in view of the growth in the caseload. While this last aspect could be easily fixed, a solution to the arbitrators’ delays is less straightforward to conceive. A reduction of the arbitrators’ compensation, in line with the practice of other arbitral institutions, does not seem realistic. Indeed, CAS hourly rates are already far from being competitive and the CAS Court Office even retains the power to reduce the applicable rates "if circumstances make this necessary".³⁵ Reducing the fees even further might have the undesirable consequence of discouraging experienced arbitrators from sitting on CAS panels. Exclusion from the list of arbitrators would seem to be an overly draconian sanction, in particular without prior formal notice.

g. Expedited Procedure

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 (Article R52(4) CAS Code).³⁶

Where the parties do agree, the Panel (or the relevant Division President) will then issue directions to be followed for the procedure. This can be particularly useful in the context of (i) sporting tournaments and [Page98:] (ii) elections, where both the individual/team and the event organiser/governing body may well have a shared interest in a speedy resolution of the dispute.

h. Provisional Measures

Under Swiss law arbitral tribunals and the state courts have concurrent jurisdiction to grant interim measures. Article 183(1) PILA provides that unless the parties provide otherwise, the ‘arbitral tribunal may […] order provisional [or conservatory] measures’, which may be taken to imply that until the moment the arbitral tribunal is constituted, jurisdiction to issue such orders lies exclusively with the state courts.³⁷

The intervention of a national court, even for the purposes of provisional measures before the constitution of the arbitral tribunal, can be problematic in the context of sports disputes as it can irremediably affect equal treatment among athletes, in particular if an athlete happens to be domiciled in the same country as the relevant governing body or the country in which the relevant competition is taking place. To overcome this 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 panel (Article R37 CAS Code). While this power is not necessarily in line with the wording of Article 183(1) PILA, which refers to the "tribunal" and not to the institution, to the extent the institutional body in charge of making the order offers sufficient guarantees of independence, this pre-arbitral mechanism is accepted as valid under Swiss law. Indeed, this system has been used at CAS level for several years without problems and has now been replicated by a significant number of traditional commercial arbitration institutions, which have put in place an emergency arbitration system (see, for instance, Article 29 ICC Rules).

CAS arbitration has pushed the principle of party autonomy a step further with regard to provisional measures, as Article R37 (third paragraph) provides that in agreeing to submit to arbitration under the CAS Code "the parties expressly waive their rights to request any such measures from state authorities or tribunals". The validity and enforceability of a waiver of the parties’ right of access to the state courts is controversial and the limited Swiss jurisprudence in point, as well as the opinions expressed by some commentators, suggest that the waiver is only enforceable when it is included in the arbitration agreement itself (which is understood to be the case for Article R37(3), by virtue of the governing sports regulations' reference to the CAS Code).³⁸ However, it is submitted that the pertinent (and critical) issue in sports arbitration is the lack of consent, as it can hardly be said that the athletes, who have no choice but to agree to CAS arbitration, have really consented to a waiver contained in the CAS arbitration rules. Such lack of (real) consent is justifiable only to the extent that the arbitral mechanism in place (either the Panel or, prior to its constitution, the Division President) is in a position to deal efficiently with the request for provisional measures and to offer the parties an effective remedy in case of real urgency and need. Efficiency relates both to the speed of the process and to its effectiveness.

As far as speed is concerned, not only can the CAS act at the same speed as state courts, but in urgent cases, both the Panel and the Division [Page99:] President have the possibility to issue decisions on an ex parte basis (Article R37 (fourth paragraph) CAS Code). Moreover, exchanges of procedural 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, without even having to decide on an ex parte basis.³⁹

With respect to effectiveness, it is true that only state courts have the power to compel a party to comply with an order on provisional measures. However, the CAS is still an effective forum for provisional measures predominantly because sports governing bodies spontaneously abide by its orders, meaning that there is no need to resort to state courts to enforce such orders.

It is doubtful that arbitral institutions other than the CAS will be able to provide for such effectiveness, which derives from the specificities of the pyramidal organisation of sports and the requirement (as set out in the majority of international federations’ regulations) that CAS decisions are respected. However, it is also true that the need to avoid national court intervention may be less of a pressing concern in commercial arbitration.

D. CAS Ad Hoc Division(s)

There are situations where even the possibility to agree on an expedited procedure does not allow for the timely adjudication of a sports dispute and a "resolution" through provisional measures is not satisfactory, in particular given the stakes. The most obvious example regards disputes that might arise during a mega event like the Olympics and which are extremely time-sensitive. As they often affect the athletes’ right to participate in the event, and given the intrinsically inflexible nature of the schedule of competitions, the dispute must be resolved within the shortest possible 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 be repealed).

Starting with the 1996 Summer Olympic Games in Atlanta, the IOC has requested the CAS to constitute an ad hoc division of a selected number of arbitrators who will go on site and be available to adjudicate disputes according to a very expedited arbitration procedure. Since then, a so-called CAS ad hoc division has been put in place for every Olympic Games (both the winter and the summer games), and the same ‘device’ was extended to other mega events like the Commonwealth Games (since 2014), the Asian Games (since 2014), the FIFA World Cup (since 2006) and the UEFA European Championship (since 2012).⁴⁰ For every such event the ICAS enacts a specific edition of the Ad Hoc CAS Rules and selects the CAS arbitrators who will be dispatched on site.⁴¹ Over the years, the Ad Hoc Division has been chaired by very prominent figures of international arbitration (including Prof. Gabrielle Kaufmann-Kohler and the late Dr. Robert Briner, former President of the ICC Court of Arbitration).

Again, the seat of the arbitration is Lausanne, irrespective of where the competition takes place. This has important benefits, for instance allowing the CAS Ad Hoc Division for the 2006 Winter Olympics in Torino, Italy to issue decisions on provisional measures even though under Italian law arbitrators would not have had the power to order such measures.⁴²

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The importance of the role of the CAS ad hoc divisions for the Olympics has become evident through the work of the earliest ad hoc divisions, which earned a solid reputation for their expertise, fairness and expeditious decision-making.⁴³ In the above mentioned Lazutina decision, the Swiss Supreme Court observed that:

The proceedings before the Ad Hoc Division are aimed at issuing a final reasoned decision on the merits after hearing from the parties within a time limit of 24 hours from the filing of the appeal.⁴⁵ To constitute a tribunal and to render a decision in such a time frame is a striking feat which is and most likely will remain unprecedented in international arbitration. Such a "performance-enhanced arbitration"⁴⁶ is possible (i) because jurisdictional hurdles are reduced by the mandatory signing of an arbitration agreement in the Entry Form to the Olympics; and (ii) by the operation of the following procedural rules,⁴⁷ which the parties accept when entering the competition:

• The Panel is directly appointed by the President of the Division with no input whatsoever by the parties (Article 11 CAS Ad Hoc Rules). This appointment is based on a preventive conflict check and, if properly applied, will de facto exclude any challenge.
• Standard forms exist to make sure that an application is complete and can be notified to the respondents without delay.
• The President of the Division will sua sponte also notify interested parties that might be affected by the case even if they are not listed as respondent by the applicant.
• Notification can be made by either e-mail or fax and athletes can be notified through their National Olympic Committee or National Federation (Article 9 CAS Ad Hoc Rules).
• The procedure stricto sensu is very flexible; the Panel is free to tailor it to the level of urgency: “The Panel organises the procedure as it considers appropriate while taking into account the specific needs and circumstances of the case, the interests of the parties, in particular their right to be heard, and the particular constraints of speed and efficiency specific to the present ad hoc procedure. The Panel shall have full control over the evidentiary proceedings” (Article 15b) CAS Ad Hoc Rules). A hearing is held on a very short notice when appropriate but is not mandatory.
• The issue of the applicable law is governed by a more straightforward choice of law (Article 17 CAS Ad Hoc Rules) than that contained in Article R58 CAS Code, without reference to any national law (the contents of which might be difficult to establish without delays).

It could be asked whether such a compression of the parties’ procedural rights is still compatible with the concept of arbitration. It has been convincingly suggested that any adjudicative process constitutes, to an [Page101:] inescapable extent, a "compromise" between due process and fast proceedings.⁴⁸ When a quick decision is as important as a correct decision the parties can validly agree to reduce their procedural rights in order to expedite the process.⁴⁹

If this premise is accepted, then there is room to rethink what is now considered the standard(ised) conduct of international arbitration proceedings and to allow the parties who want a quick decision to willingly relinquish part of their procedural rights. This could open a variety of new opportunities that would give new vitality to the paramount principle of party autonomy, which underpins the idea of arbitration. Further inspiration could be found in the rules of the Basketball Arbitral Tribunal (BAT), to which I will now turn.

III. BASKETBALL ARBITRAL TRIBUNAL (BAT)

A. Raison d’être

The BAT, previously known as the FIBA (Fédération Internationale de Basketball Amateur) Arbitral Tribunal or FAT, was established in 2007 with the principal aim of offering a mechanism for the independent, simple, quick and inexpensive resolution of contractual disputes arising in the world of basketball.⁵⁰

In providing an international forum to resolve such disputes, the BAT sought to overcome (unfortunately common) situations where: (i) a party was reluctant to bring a case against another party in a particular country or it was difficult to bring such a case due to the characteristics of and unfamiliarity with the legal system of that country; and/or (ii) a party relied on the inconvenience of state court proceedings to avoid honouring their contractual commitments (knowing that the other party would not be willing to file a claim).

As discussed below, with BAT, parties have a simple and accessible means of dispute resolution, together with an effective internal enforcement mechanism.

B. BAT in general

As noted in a prior publication on the BAT:⁵¹

a. The Nature of Cases before the BAT

The BAT deals solely with contractual disputes, and the FIBA Regulations expressly provide that FIBA, its Zones and/or their respective divisions are not directly involved in the disputes brought before the BAT.⁵²

[Page102:]

Thus, while FIBA continues to deal with disciplinary, eligibility and technical disputes, the BAT is tasked with enforcing — through voluntary arbitration — basketball parties’ contractual obligations.

b. Structure and Organisation

Although it was established by FIBA, the BAT is designed to be self-financing⁵³ and, as mentioned, FIBA and its related parties do not take part in the relevant disputes.

In terms of its structure, the BAT is composed of a President, Vice-President, and a roster of arbitrators who are appointed to hear cases on a rotating basis.⁵⁴

The BAT President and Vice-President are appointed by FIBA for a renewable term of four years and are required to have legal training.⁵⁵ The duties of the BAT President are to: (i) ensure the proper functioning of the BAT (including with respect to administration and the approval of amendments to the BAT Rules); (ii) establish a list of at least five arbitrators 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 filed with the BAT; (iv) establish a system of remuneration for the arbitrators; and (v) exercise the functions assigned to the President under the BAT Rules.⁵⁶

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 seven arbitrators on the BAT list.⁵⁸

Like CAS, the BAT is seated in Switzerland (in Geneva), and thus benefits from the above-mentioned advantages of the Swiss arbitral system.⁵⁹ Moreover, the BAT operates according to the BAT Arbitration Rules, which, as discussed in the following section, contain several features designed to promote efficiency and expeditiousness.

Finally, the administrative organisation of the BAT is both effective and efficient.⁶⁰ Arbitrators have access to an online platform which contains all information necessary for the progression of cases, and proceedings are conducted primarily by e-mail, adding to the ease of resolving disputes.

C. Noteworthy features of BAT arbitration

BAT arbitration has a number of interesting features designed to streamline the arbitral process.

The Preamble to the BAT Rules summarises these features, and the underlying ‘BAT philosophy’, in the following terms:

[Page103:]

a. Sole Arbitrators, Appointment by Rotation and Closed List

As mentioned above, BAT arbitrators are appointed by the President to hear cases on a rotational basis. All BAT cases are conducted by a Sole Arbitrator from the closed list of BAT arbitrators (Article 8.1 BAT Rules).

The number of cases that BAT arbitrators deal with each year — in addition to the requirement that they have legal training and experience in sport — means that each case is decided by an arbitrator who has (or quickly comes to have) quite specialised knowledge in the field of basketball contractual disputes. Indeed, BAT arbitrators are regularly exposed to recurrent issues and, through this, come to learn and expect certain intricacies of the basketball world that might be missed were a closed list not used.

While this feature is therefore very useful in the basketball setting, it is less relevant to general commercial arbitration — unless, of course, specialised tribunals were established to deal with particular (and recurrent) types of disputes.

b. Single Exchange of Submissions; Procedural Orders

In order to achieve its stated aim of having simple, quick and inexpensive arbitration proceedings, the general rule in BAT cases is that there is only one exchange of written submissions.⁶¹

With that said, BAT arbitrators are authorised to issue procedural orders 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 arbitrators to delimit the issues in a case and to ensure that the most relevant facts and evidence are brought forward in the proceedings.

c. Decision ex aequo et bono

Perhaps one of the most distinctive features of BAT arbitration is that, as a rule, BAT arbitrators decide disputes ex aequo et bono.⁶³

Indeed, according to the BAT Rules:

The key benefit of this is obvious, namely that there is no need for the arbitrators to delve into intricate issues of national law (and perhaps even be required to review expert opinions on same).

Considering that BAT arbitrations concern coaches, clubs, players and agents from all around the world, this is certainly a helpful feature.⁶⁴ In terms of whether ex æquo decisions could be useful elsewhere, it is notable that the transnational nature of modern commercial arbitration lends itself quite well to this type of dispute resolution. Indeed, while many lawyers are uncomfortable with having a case decided outside of traditional legal frameworks on the basis of equitable considerations, the most important users of arbitration — the parties — may be quite happy with this as a [Page104:] solution. That said, one should not overlook that the nature of ex æquo decisions may be difficult to grasp in advance, and any party is likely to be unhappy with an equitable decision where it would have otherwise been able to win a case on a technical and/or national point of law.

d. Proceedings Conducted by e-mail, in English

As a rule, and to the extent possible, BAT proceedings are conducted by e-mail from the very beginning of the procedure (i.e. the filing the Request for Arbitration) (Article 6.1 BAT Rules).⁶⁵

Furthermore, the working language of BAT is English and documents provided to BAT in a different language must be accompanied by a certified translation unless the Arbitrator decides otherwise (Article 4 BAT Rules).⁶⁶ The standard use of one language — and the clear rules in this respect — 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 extent one can speak of jurisprudence in ex aequo et bono arbitration) — as awards are all published in the same language.

e. Unreasoned Awards, No Hearings, Time Limit to Render the Award and Costs

Again to save both costs and time, the BAT has established the following rules:

• In addition to only having one round of submissions, “no hearings are held in [BAT] arbitration proceedings unless the Arbitrator decides to hold a hearing after consultation with the parties” (Article 13.1 BAT Rules).
• The BAT Rules provide that the Arbitrator shall endeavour to render the award within six weeks from the completion of the arbitral proceedings or payment of any outstanding advance on costs, whichever comes last (Article 16.3 BAT Rules).
• To keep party costs under control, the BAT Rules provide for a cap on the maximum contribution to “a party’s reasonable legal fees and other expenses” (Article 17.4 BAT Rules).
• Only the operative part of the award (i.e. the ruling without the reasons) is issued where the value of the dispute does not exceed €100,000. A party may, however, request a reasoned award within 10 days after the notification of the decision, which will be subject to the payment of an additional advance on costs (Article 16.2 BAT Rules).

It has been reported that the cumulative result of these features is that the average duration of BAT arbitrations is just over six months (2014 figures), and the cost/value ratio of cases a moderate 5.3% (also in 2014).⁶⁷

In view of these statistics, it is worth considering whether similar features could be useful in commercial arbitration. While perhaps not realistic for complex arbitrations, smaller disputes, particularly in consumer law settings and other comparable legal disputes, could benefit significantly.

[Page105:]

f. Internal enforcement mechanism

As with CAS, one of the most advantageous features of BAT arbitration is the relative ease of enforcement. In fact, BAT arbitration has an effective and well-utilised internal enforcement system.

Specifically, according to Articles 3-335 to 3-337 of the FIBA Internal Regulations (Book 3) a party can be sanctioned if it fails to honour a BAT award. Sanctions are serious and include: (i) monetary fines, (ii) withdrawal 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 registration of new players (see Article 3-335 of the FIBA Internal Regulations (Book 3)). While this feature is worth noting insofar as the efficiency of BAT arbitration is concerned, it is clearly much less relevant — and transferable — to international commercial arbitration.

g. Notification of Awards

In a new development in the 2017 BAT Rules, notification of the award has also become more streamlined, as follows:

While this development is quite novel and useful in the world of basketball arbitration, its success is also highly dependent on the internal enforcement mechanisms in BAT arbitration. Indeed, as noted above, FIBA can ensure that once a party is "notified", sanctions can be used in order to ensure a party’s compliance with the award.

h. Publication of Awards

Finally, according to Article 16.4 BAT Rules, BAT awards are not confidential unless ordered so by the Arbitrator or the BAT President.⁶⁸

BAT’s standard practice is to publish awards on the FIBA website as soon as possible after they have been issued, thus BAT awards (where reasoned) are readily accessible by the public. This is clearly beneficial and, with appropriate adjustments to take into account confidentiality concerns, would be equally useful in the context of commercial arbitration, where clear principles and applications of law could be solidified through a non-binding system of precedent.

D. Exporting BAT’s experience

The experience of the BAT, and in particular the possibility to have the dispute resolved on an ex aequo et bono basis, has been recently made available to a wider range of users by the Court of Innovative Arbitration (COIA).⁶⁹ On the introductory page of COIA’s website one can read the following statement:

Whether and to what extent this new kind of arbitration will be successful remains to be seen. What is certain is that the sport experience has shown that speed and effectiveness are fundamental features of the fair administration of justice and that there might be fields also outside the sports arena where such considerations might be even more important than an unrestricted right to be heard.

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*
Partner, Lévy Kaufmann-Kohler, Geneva, Switzerland

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1
Accessible at http://www.fiba.basketball/bat/process/arbitration-rules-january-1-2017.

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2
Accessible at http://www.tas-cas.org/en/arbitration/code-procedural-rules.html.

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3
For instance, disputes involving claims by competing organisations of the right to govern a particular sport (for a recent example see International Federation of American Football, Tommy Wiking, Turkish American Football Federation v Roope Noronen & Richard MacLean, CAS 2016/O/4779).

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4
For instance, the dispute that arose from the Moroccan Football Federation’s decision not to organise the 2015 edition of the Africa Cup of Nations in view of the Ebola virus outbreak in neighboring regions, TAS 2015/A/3920, Fédération Royale Marocaine de Football c Confédération Africaine de Football, Award of 17 November 2015, CAS Bulletin 2016, pp. 76-80.

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5
See, e.g., Walter Mattli and Thomas Dietz, International Arbitration and Global Governance, Oxford University Press, 2014, p. 109, with further references.

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6
ATF 119 II 217.

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7
Three members are appointed by the Association of Summer Olympic International Federations (ASOIF) and one by the Association of International Olympic Winter Sports Federations (AIOWF).

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8
According to Article S8, any modification to the CAS Code requires a two-thirds majority of the ICAS members (Article S7 further clarifies that decisions on amendments to the Code may not be delegated to the ICAS Board).

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9
Notably, this is not an obligation of the ICAS, the CAS Code merely stating that it "may" do so.

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10
CAS also provides for the mediation of disputes, however (and while the CAS statistics do not include the number of mediated disputes) it is understood that arbitration proceedings are far more common at CAS than mediation.

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11
According to Article R64.4 of the CAS Code, it is the « CAS Court Office » that determines the 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 Costs".

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12
This aspect was explicitly pointed out by the Swiss Supreme Court in the Lazutina case, as discussed below Section II.C.c.

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13
[Page107:]As the ICAS does not provide any explanation with respect to the removal of an arbitrator from the list, it is difficult to know whether there are cases where an arbitrator has been removed due to his or her lack of availability or other considerations.

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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 the Code of Civil Procedure.

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15
For a recent statistical study of Swiss Supreme Court decisions in setting aside proceedings, distinguishing between sports and commercial arbitration awards, see Felix Dasser and Piotr Wojtowicz, "Challenges of Swiss Arbitral Awards – Updated and Extended Statistical Data as of 2015", ASA Bulletin, 2016, 34, pp. 280-300. For a comprehensive analysis of the action to set aside before the Swiss Supreme Court, see Gabrielle Kaufmann-Kohler/Antonio Rigozzi, International Arbitration – Law and Practice in Switzerland, Oxford University Press, Oxford, 2015, pp. 421-508.

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16
CAS additionally provides for Ad Hoc expedited Arbitration at major sporting events (e.g. the Olympic Games and FIFA World Cups), as discussed further below Section II.D.

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17
From 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 other hand, CAS awards are still subject to setting aside proceedings before the Swiss Supreme Court.

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18
Article 62 UEFA Statutes. The UCI Regulations also provide that appeals against decisions of the UCI President be filed with the CAS within 8 days (UCI Regulations, Article 12.1.004), however decisions from the President are very rarely (if ever) relevant and the more common appeals 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 of one month from the date of receipt of the decision (Article 13.2.5.1 of the UCI Anti-Doping Rules).

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19
Jan Paulsson "Jurisdiction and Admissibility" in: Aksen et al. (Eds) Global Reflections on International Law, Commerce and Dispute Resolution – Liber Amicorum Robert Briner, ICC Publishing, Paris 2005, pp. 601-617.

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20
Supreme Court decision 4A_488/2011 of 18 June 2012, para. 4.3.1.

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21
Articles R51 and R55 CAS Code.

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22
Article R56 CAS Code.

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23
The CAS list can be accessed at http://www.tas-cas.org/en/arbitration/list-of-arbitrators-general-list.html.

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24
Decision by the Swiss Supreme Court of 27 May 2003 (ATF 129 III 445), Larissa Lazutina & Olga Danilova v CIO, FIS & CAS, at para. 3.3.3.2; Yearbook Commercial Arbitration, Vol. XXIX (2004), p. 206, 219. The complete original French text of the decision is reported in ASA Bulletin 2003, p. 601 et seq.

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25
CAS 2009/A/1912 & 1913, Claudia Pechstein v ISU and Deutsche Eisschnelllauf Gemeinschaft v ISU, Award of 25 November 2009.

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26
Bundesgerichtshof (BGH) Judgement of 7 June 2016 - KZR 6/15 - OLG München LG München I. Available at http://www.bundesgerichtshof.de/EN/Home/home_node.html. See also the CAS Media Release of 7 June 2016 available at http://www.tas-cas.org/fileadmin/user_upload/Media_Release_Pechstein_07.06.16_English_.pdf.

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27
Claudia Pechstein v Switzerland, Application n. 67474/10.

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28
Article S18 in fine CAS Code, introduced in 2010.

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29
In CAS 2015/A/4501, Blatter v FIFA, the arbitrator nominated by FIFA was successfully challenged by the Appellant in relation to public comments he had previously made about Mr. Blatter’s presidency of FIFA in a web interview given to the International Bar Association on the subject of sports law and corruption. In the well-known Contador case, a challenge was brought on the ground that the arbitrator appointed by the World Anti-Doping Agency (WADA) had 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, UCI v Contador & RFEC and WADA v Contador & RFEC, Decision of 4 May 2011).

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30
Footnote 5 in the 2014 IBA Guidelines reads as follows: ‘It may be the practice in certain types 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 parties to frequently appoint the same arbitrator in different cases, no disclosure of this fact is required, where all parties in the arbitration should be familiar with such custom and practice.’

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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 [Page108:] amendment introducing a time limit running from the transfer of the file to the panel was made to avoid the difficulties resulting from the delays incurred in connection with the first stages in the proceedings (which are beyond the control of the arbitrators), in particular the panels’ formation, the determination of the language of the proceedings, if disputed, and the payment 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 Article R59 CAS Code, paras 74-75.

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32
It is true that the Swiss Supreme Court considers applications for annulment against awards without reasons to be admissible, however it has noted that the applicant’s prospects of success in such cases are (Supreme Court decision 4A_198/2012 of 14 December 2012, para. 2.2).

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33
This unfortunate situation is only partially mitigated by the fact that the Swiss Supreme Court 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 Erika Hasler, ad Article R59 CAS Code, para. 14, in Manuel Arroyo (Ed.) Arbitration in Switzerland – The Practitioner’s Guide, KluwerLaw International, 2nd ed, forthcoming).

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34
See, e.g., Fadri Leggenhager, in Manuel Arroyo (Ed.) Arbitration in Switzerland – The Practitioner’s Guide, KluwerLaw, 2013, ad Article 30 ICC Rules, paras 9-14.

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35
See Appendix II to the CAS Code "Schedule of Arbitration Costs".

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36
This is also provided for in CAS ordinary arbitration (see Article R44.4 CAS Code). For a recent example where the parties agreed to adopting an expedited procedure in CAS appeals proceedings, 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 was issued on 6 July 2016, two days after the evidentiary hearing.

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37
Christopher Boog, "Interim Measures in International Arbitration", in Manuel Arroyo (Ed.) Arbitration in Switzerland – The Practitioner’s Guide, KluwerLaw, 2013, pp. 1366, para. 59, 1368, para. 70.

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38
See Antonio Rigozzi and Fabrice Robert-Tissot, "Consent" in Sports Arbitration: Its Multiple Aspects", in Elliott Geisinger and Elena Trabaldo-de Mestral (Eds), ASA Special Series No. 41 - Sports Arbitration as a Coach for Other Players, Huntington (NY) 2015, p. 86 citing the Supreme Court of the Canton of Bern, Order on provisional measures of 19 April 2012 (O.A. SA v ASF), para. 2/ a-g, published in part in CausaSport 2012, p. 171 et seq.

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39
Under these circumstances, one fails to see how an applicant could convince a state court to ignore the CAS’s exclusive jurisdiction by arguing that the CAS is not in a position to grant the measure sought in due time.

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40
The latest CAS ad hoc division was established on the occasion of the Vth Asian Indoor and Martial Arts Games 2017 in Ashgabat Turkmenistan. See http://www.tas-cas.org/fileadmin/user_upload/Arbitration_Rules_Asian_Indoor_Games_2017.pdf.

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41
In the UEFA European Football Championships, the arbitrators are on call.

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42
Antonio Rigozzi, "The Decisions Rendered by the CAS Ad Hoc Division at the Turin Winter Olympic Games 2006", Journal of International Arbitration 2006, p. 455.

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43
For a comprehensive review and analysis of the CAS Ad Hoc Division for the Olympic Games, see Gabrielle Kaufmann-Kohler, Arbitration at the Olympics: Issues of Fast-track Dispute Resolution and Sports Law, KluwerLaw 2001.

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44
Larissa Lazutina & Olga Danilova v CIO, FIS & CAS, Swiss Federal Tribunal, 27 May 2003, Yearbook Commercial Arbitration, Vol. XXIX (2004), p. 219.

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45
In less urgent cases the Panel can take a bit longer. In other cases, Ad Hoc Division Panels have decided to issue only the operative part of the award within the 24-hour time limit.

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46
Elizabeth Kantor, Performance-Enhanced Arbitration? The CAS Ad Hoc Division, http://kluwerarbitrationblog.com/2012/08/27/performance-enhanced-arbitration-the-cas-ad-hoc-division/.

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47
The CAS Ad Hoc Rules can be accessed at: http://www.tas-cas.org/en/arbitration/ad-hoc-division.html.

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48
Gabrielle Kaufmann-Kohler, Arbitration at the Olympics: Issues of Fast-track Dispute Resolution and Sports Law, KluwerLaw 2001, p. 36 et seq.

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49
With specific respect to the CAS's Ad Hoc Division, the well known decision to disqualify Andrea Raducan from the Sydney Olympics was rendered after a single hearing with no meaningful 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).

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50
The FAT was renamed as the BAT in April 2011 to better reflect the tribunal’s independence from FIBA.

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51
[Page109:]Erika Hasler, "The Basketball Arbitral Tribunal – An Overview of its Process and Decisions", Yearbook of International Sports Arbitration 2015, p. 113.

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52
See FIBA’s Internal Regulations (Book 3) at Articles 324-337 which contain provisions establishing and regulating the BAT.

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53
With that said, according to Article 3-331 FIBA’s Internal Regulations (Book 3), FIBA guarantees the tribunal’s financing.

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54
See Articles 3-332 to 3-334 of FIBA’s Internal Regulations (Book 3).

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55
See Article 3-332 of FIBA’s Internal Regulations (Book 3).

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56
See Article 3-334 of FIBA’s Internal Regulations (Book 3).

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57
See Article 3-334 of FIBA’s Internal Regulations (Book 3).

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58
Accessible at http://www.fiba.basketball/bat/process/bat-composition.pdf.

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59
See above Section II.B.b.

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60
The BAT Secretariat is based in Munich.

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61
Preamble to the BAT Rules and Article 12.1.

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62
Article 12.2 of the BAT Rules.

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63
Swiss arbitration law (Articles 187(2) PILA), as many others, allows the parties to authorize the tribunal to decide their dispute ex aequo et bono rather than in application of a specific national law.

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64
For an analysis of BAT ex aequo et bono decisions, see Erika Hasler, "The Basketball Arbitral Tribunal – An Overview of its Process and Decisions", Yearbook of International Sports Arbitration 2015, pp. 132-152

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65
While a party may also send its Request for Arbitration via the postal service, the BAT encourages and most often uses correspondence via e-mail.

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66
The extent to which a BAT arbitrator will require a certified translation will depend both on the nature of the case and the particular evidence in question (particularly if it is important and/or contentious).

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67
Erika Hasler, "The Basketball Arbitral Tribunal – An Overview of its Process and Decisions", Yearbook of International Sports Arbitration 2015, p. 115.

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68
It has been reported that approximately 90% of BAT awards are published, albeit sometimes in redacted form (Andreas Zagklis, "Three Pointer: an overview of how the Basketball Arbitral Tribunal handles financial disputes in: Panagiotopoulos (Ed) Sports Law – Lex Sportiva – Lex Olympica and Sports Jurisdiction Experience – Development and Perspectives, EKEAD, Athens 2015, pp. 290 et seq., p. 294)

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69
http://coia.org

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70
The mention of the "unparalleled experience of COIA’s Arbitrators and its Secretariat" refers to the BAT’s experience.

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