Friday, April 5, 2013

Home Field Advantage in the "Appealability" of CAS Judgments

An article in the Arbitration Newsletter Switzerland explains how a recent judgment of the Court of Arbitration for Sport was overturned by the Swiss Federal Supreme Court (here in PDF). The details of the case and the process that lead to the overturning of the CAS decision are interesting but not the focus of this post.

Here I draw attention to the author's claim that the low number of CAS arbital decisions overturned by the Swiss Federal Supreme Court is an indication of the high quality of those decisions. The article explains:
[S]ome practitioners in the field of commercial arbitration are of the view that CAS Awards lack sufficient quality and use the high number of sports related cases submitted to the Federal Supreme Court as an argument.

We believe those practitioners are wrong, and this for the following reasons:
  • Under the regime of Chapter 12 of PILA, starting as per January 1, 1989, the CAS has up to December 31, 2011, rendered in total 1674 awards. The figures of cases resolved in 2012 are not yet available, but alone in this year CAS registered an impressing number of 362 new cases. Out of those 1674 awards rendered up to December 31, 2011, only 7 were squashed by the Federal Supreme Court6. The present decision is now number 8.
While a record of 1667-7 is indeed impressive, it must be considered in the context of the procedural difficulty in actually challenging a CAS decision.

The most recent Bulletin of the CAS included a lengthy article on the "appeal-ability" of CAS judgments under Swiss law by a Swiss lawyer and former member of its parliament, Charles Poncet (here in PDF). The article is worth reading in full, but the short answer to the question of "appeal-ability" is: Not easily.

Poncet writes:
The time-limit to appeal a Swiss award is extremely short: thirty days and unlike otherwise comparable systems a fully reasoned and argued brief is expected within that time limit. Any argument raised later – in a reply for instance – will be rejected by the Court if it was not already developed in the original appeal.

This makes counsel’s task quite arduous: within thirty days a file needs to be mastered, at least as to the facts, testimony and legal arguments germane to the issues to be argued in the appeal. As international arbitrations develop into ever more complex litigations this may be quite a challenge given so little time. The appealing party is unlikely to be able to handle French, German or Italian, thus making English or other translations of the draft brief a necessary, albeit almost impossible requirement because by the time one or several lawyers have (i) become acquainted with the facts and the record of the arbitration (ii) recognized the legal issues to be raised in the appeal (iii) drafted a thorough brief meeting the fairly strict requirements of the LFT and case law, there will be merely a few days – sometimes a few hours – left before the filing deadline. Whilst theoretically possible, appeals drafted by foreign counsel only are not advisable in practical terms. It takes a fairly experienced Swiss lawyer to work her1 way through the pitfalls of admissibility requirements, yet cooperation between foreign and Swiss counsel will be reduced to a minimum by the constraints of time unless one takes the precaution of associating Swiss counsel to one’s team well in advance. Whilst undoubtedly helpful to the prosperity of Swiss law firms, this seems to defeat the very purpose of international arbitration, which is to make it possible for a party to appear with counsel it feels comfortable with without resorting to expensive and sometimes hardly useful local assistance.

Last but not least, as we have seen above, the costs involved in Swiss appeal proceedings can be very significant when the amount in dispute is high, which is a very frequent occurrence in modern commercial or investment arbitration. It is hardly advisable for a jurisdiction wishing to remain a favorite venue of international arbitrations to cause litigants to spend hundreds of thousands of dollars to be told merely that the matter is not capable of appeal or that an appeal should have been made earlier.
The practical difficulty of challenging CAS judgments represents a significant obstacle to the development of a legitimate and comprehensive body of lex sportiva -- sports governance jurisprudence. It also helps to explain why the CAS has such an apparently impressive record of not being overturned.

1 comment:

  1. The conclusion raises important considerations. The quality of the awards, on certain occasions, is questionable.