Thursday, March 24, 2016

CAS and Transparency

The Arbitration Newsletter Switzerland (no really, it's riveting) has a piece by Hansjörg Stutzer and Michael Bösch on the Court of Arbitration for Sport and its arbitrators (here in PDF). The article argues that the CAS is both indispensable and improvable. CAS is the Swiss-based international arbitration body that settles disputes within global sport.

The piece quotes Jan Paulsson as a useful starting point:
 "My own view is that the function that CAS seeks to fulfil in the international community is indispensable. That does not mean that CAS is indispensable. But it does mean that those who raise existential criticisms of CAS have a duty to explain how they consider that this indispensable function would be fulfilled if we listened to them."
Disputes heard under CAS are typically adjudicated by a panel of 3 arbiters chosen from a list of arbiters established by the CAS:
The present list of CAS arbitrators names 356 arbitrators, comprising 24 from Africa, 76 from the Americas, 37 from Asia, 190 from Europe and 29 from Oceania. Among individual countries the United States of America leads with 37 arbitrators, followed by Switzerland with 29, the UK with 28 and Australia with 23 arbitrators. For each arbitrator listed in alphabetical order there exists a very short biography and some, but very few, arbitrators attach an extended CV to their biography. These notes do, however, reveal neither (i) when the individual was appointed a CAS arbitrator nor (ii) by which organisation such arbitrator has been proposed; even less so does this list reveal how often a particular arbitrator has acted as a CAS arbitrator. 
I came across these information limitations when researching my book, The Edge, for my chapter on governance, and in particular transparency. Stutzer and Bösch indicate that even though there are 356 arbiters on the CAS list, considerably fewer are actually active in CAS arbitration cases:
. . . it seems that only about 70 arbitrators are appointed regularly. Many of the arbitrators listed have in fact never been appointed at all, either due to their origin or due to their lack of established experience in arbitration. 
This conclusion is supported by their look at recent decisions:
 This conclusion can be corroborated by an analysis of the arbitrators appointed in the cases listed on the CAS website under the heading "Recent decisions" In those 66 cases only 70 different arbitrators were appointed whereas - if spread statistically on an even basis - there should have been actually 198 different arbitrators. Of the 70 different arbitrators two were appointed 9 times, one 8 times, two 7 times, one 6 times and five 5 times. All these multiple appointments were for arbitrators from Europe. There is certainly nothing wrong with those multiple appointments - so long as they do not come from the same appointing party.
That means that of the 198 aribital spots on these cases, 71 were taken by the same 5 people (or 36%), and the remaining 127 spots were filled by the other 65 people. Who were theey and who appointed them?But because CAS does not report who appoints whom and which arbitrators take which cases, this information is not known. It should be.

Stutzer and Bösch offer two recommendations for consideration, beyond from business as usual, The first is for greater disclosure and the second is for greater latitude in the appointment of arbitrators. The first is a no-brainer, and the second is worthy of a deeper debate (especially in the context of challenges to CAS legitimacy under the German legal system):
[CAS] could, whilst still maintaining its list of arbitrators, add additional information to the biography of each individual CAS arbitrator, mentioning when he or she has been appointed to such list, which institution had supported this proposal and how many cases he or she has sat on so far.

But CAS might also consider leaving the parties full choice in nominating their arbitrators (i.e. no longer binding the parties to the CAS list of arbitrators) and restrict the use of the CAS list of arbitrators to the nomination of the presiding arbitrator, where either the parties themselves cannot mutually agree on such presiding arbitrator or CAS itself chooses the presiding arbitrator. With having "control" over the nomination of the presiding arbitrator CAS would still maintain the consistency of its decisions. 
Another quote from Jan Paulsson is worth highlighting, and really should be invoked in governance critiques as often as possible:
"The most excellent institutions should always be conscious of the possibility of improvement and reform. CAS is no exception."
For anyone interested in international sports governance, the entire piece is well worth your time (here in PDF). 


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