The Code of the Court of Arbitration for Sport

Commentary, Cases and Materials

Despina Mavromati Matthieu Reeb

Wolters KluwerLaw & B u s i n e s s

Table of Contents

About the Authors vii

List of Annexes xxix

Introduction - W ord of the ICAS/CAS President xxxiii

Foreword xxxv

Preface and Acknowledgem ents xxxvii

List of Abbreviations xxxix

Chapter 1Introduction: The International Council of Arbitration for Sport (ICAS)and the Court of Arbitration for Sport (CAS): 30 Years of History 1§1.01 Creation 1§1.02 O rganization of the CAS from Its Creation until 1994 2§1.03 The 1994 Reform 3§1.04 The Paris Agreem ent 4§1.05 The Code of Sports-Related Arbitration of 22 November 1994 4§1.06 The International Council of Arbitration for Sport (ICAS) 5§1.07 The Court of Arbitration for Sport (CAS) 5§1.08 Decentralized Offices, A lternative Hearing Centres and Ad Hoc Divisions 6§1.09 The Future of the Institution 7

Chapter 2

Statutes of the Bodies W orking for the Settlement of Sports-Related Disputes 9[A] Joint Dispositions 9[B] The International Council of Arbitration for Sport (ICAS) 10

[1] Com position 10

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[2] Attributions[3] Operation

[C] The Court of Arbitration for Sport (CAS)[1] Mission[2] Arbitrators and M ediators[3] Organisation of the CAS

[D] M iscellaneous Provisions

Procedural Rules

A General Provisions

R27Application of the RulesI Article R27: Introduction

[A] General Scope of Article R27 and Delimitation from Other Articles of the Code

[B] Chapter 12 of the Swiss PILA and Relation w ith the Swiss CCPII CAS Jurisdiction: Arbitration Clause in Favour of the CAS

[A] General Issues[B] Autonomy of the A rbitration Clause[C] Jurisdiction of the Panel to Rule on Its Own Jurisdiction

(Kompetenz-Kompetenz)[D] Form, Material Conditions and Interpretation Criteria for the

Validity of the A rbitration Agreem ent[1] Form of the A rbitration Clause[2] Material Conditions for the Validity of the Arbitration

Clause[3] Interpretation Criteria for the A rbitration Agreem ent

[E] Express-, Tacit Arbitration Agreem ent, and Arbitration Agreement by Reference[1] Tacit Arbitration Agreem ent and Appeal to CAS as

an Offer to Arbitrate[2] The Validity of the A rbitration Clause by Reference[3] Arbitration Clause Contained in the Entry Form Prior to a

Competition[4] Direct and Indirect A rbitration Clause in Football Cases[5] Disputes Related to an Anti-Doping Rule Violation and

Validity of the Arbitration Clause[6 ] Arbitration Agreement in Purely National D isputes Brought

before the CASIII Nature of the Dispute and Arbitration Procedure: Ordinary and Appeal

ProceduresIV Questions Related to Jurisdiction, to Arbitrability and to Legal Standing

[A] Introduction

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[B] Jurisdiction Ratione Materiae: Sports-Related Dispute and Rules of Law / Rules of the Game[1] Qualification of a ‘Sports-Related’ Dispute under Article R27[2] Ratione M ateriae Conditions Included in the Rules of the

Federations / Sports Associations[3] Arbitrability under Article 177 PILA[4] Arbitrability of Sports Disputes of Commercial and

Disciplinary Nature[5] Arbitrability of the Dispute if a Foreign Law Prohibits

Recourse to Arbitration[6] Distinction betw een Rules of the Game and Rules of Law

Annexes[A] Example of an A rbitration Clause by Reference[B] Example of an Express Arbitration Clause[C] Standard Clauses in Favour of the CAS[D] IBA Guidelines for Drafting International Arbitration Clauses

of 2010 - Checklist[E] Football: Process in Case of Disputes of International Dimension

according to the RSTP (2012)[F] Football: Process in Case of Disputes of National Dimension

according to the FIFA RSTP (2012)[G] Doping: Appeal Venue for National- and International

Level Athletes according to the WADC (2015)[H] Jurisdiction, Arbitrability, Admissibility and Standing

R28SeatI Article R28: Introduction

[A] Definition of the Seat of the Arbitral Tribunal and Article R28 CAS Code

[B] Seat of the Arbitral Tribunal in Other Arbitration Rules[C] Article R28 CAS Code and Article 176 of the Swiss PILA

II Im plications Arising from the Seat of the CAS in Lausanne[A] Distinction betw een the Seat of the Arbitral Tribunal and the

Place of the Hearing[B] Impact of the Seat of the CAS on the Conduct of the Hearing

and Other Procedural Issues[1] Seat of the CAS and Appeal to the SFT[2] Seat of the Arbitral Tribunal and Control of the

Arbitrability of the Dispute[3] Article R28 of the Code and Power of the Panel to Rule

on Its Own Jurisdiction[4] Article R28 CAS Code and Application of the M andatory

Rules of Another National Law

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[5] Seat of the Arbitral Tribunal, Validity of the A rbitration Agreement and the New York Convention 72

[6 ] Seat of the CAS and Provisional M easures 73

III Advantages from the Establishm ent of the Seat of the CAS in Lausanne 74

R29Language 75I Article R29: Introduction 76

[A] Content of Article R29 CAS Code 76[B] Language of the Procedure in Other Arbitration Rules 79

II Determ ination of the Language of the Procedure before theConstitution of the Panel 80[A] Determ ination of the Language of the Procedure by M eans

of an Order 80[B] Criteria for the Determ ination of the Language of the Procedure 80

[1] Choice of English or French in the Absence of an Agreement betw een the Parties 80

[2] Language of the Contract / the Decision Appealed againstand Language of the Procedure 81

[3] Citizenship, M other Tongue of the Parties and Languageof the Parties’ Counsel 83

[C] Acceptance of More Than One Language by the CAS Panel 83[D] Translation of Documents 83[E] Impact of the Language on the Conduct of the Hearing 84

[1] Inadmissibility of Docum ents Subm itted in a Foreign Language and Excessive Formalism 84

[2] Translation of the Parties’ Names and Inadmissibilityof the Appeal 85

[3] Modification of the Appointm ent of an Arbitrator 85III Final Remarks 8 6IV Annexes 87

[A] Example of an Order on Language Rendered by CAS 87[B] Figure 1: Language of the Proceedings before CAS 89

R30Representation and Assistance 91I Article R30: Introduction 92II Content of Article R30 CAS Code and Com parison to Other

Arbitration Rules 92[A] Article R30 and A m endm ents of the CAS Code 92[B] Parties’ Representation in O ther A rbitration Rules 94

III Production of the Power of Attorney 95IV Issues Relating to Parties’ Representation Drawn from the CAS

Case Law 96

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[A] Choice of a Party Not to Engage a Legal Representative andInadequate Legal Advice 96

[B] Time Limit to Appeal to the CAS in Case of Representation 96[C] Legal Representation and Standing to Lodge an Appeal

before CAS 97V Costs of Legal Representation and the Creation of a Legal Aid Fund 97VI Annexes 99

[A] Legal Aid Application Form 99[B] Legal Aid Guidelines (2013) 102[C] Statistics on Legal Aid 105

R31Notifications and Com m unications 107I Article R31: Introduction 109

[A] Content of Article R31 and Definition of ‘Notifications’ and‘Com m unications’ 109

[B] History of Article R31 through the Am endm ents of the CAS Code 110[C] Notifications and Com munications from the CAS or the Panel

to the Parties 111[ 1 ] Notification ‘by Any Means Permitting Proof of Receipt’ 111[2] Address Used by the CAS Court Office for the

Notifications and Com munications to the Parties 112[3] Proper Notification of a W ritten Com munication to

the Parties and Appeal to the CAS 113[D] Com m unications Addressed from the Parties to the

CAS / Panel: Electronic Filing 115[1] Num ber of Copies of the Parties’ Submissions 116[2] Sending of the Exhibits to the Parties’ Submissions via

Electronic Mail 116

R32Time Limits 119I Article R32: Introduction 120II Time Limits under Article R32 CAS Code and CAS Case Law 122

[A] Time Limits ‘Fixed under This Code’ 122[B] Calculation of the Time Limits under Article R32 and

Relation to Article R49 CAS Code 123[C] Failure to Comply w ith the Time Limits and Possibility to

Request an Extension 126[D] Suspension of Pending Arbitration Procedures 129

III Annexes 131[A] Indicative Calculator of Time Limits Based on Article R32 CAS

Code 131

Table of C ontents

[B] Indicative Time Limit to File the Statem ent of Appeal Pursuant to Article R49 CAS Code

[C] Sample Letter Sent by the CAS to Extend the Time Limit for Filing the Answer to the Appeal

R33Independence and Qualifications of ArbitratorsI Article R33: Introduction

[A] M eaning of Independence under Article R33 CAS Code[B] Distinction betw een Independence and Impartiality[C] The Independence of Arbitrators in O ther Rules and in

Article R33 CAS Code[D] Is Same Degree of Independence Required for ‘Party-A ppointed’

Arbitrators and for the Chairm an of the Panel?II Independence of Arbitrators as Viewed by the CAS and the SFT

[A] Independence according to the Perception of a Reasonable Observer

[B] Relationship of Subordination or Significant Economic Affiliation

[C] Strong Positive or Negative Emotional Bonds betw een the Arbitrator and One Party or Its Counsel

[D] Recurrent Appointm ents of Arbitrators by the Same Party[E] Nationality of Arbitrators[F] The Application of the IBA Guidelines and the Specificities

of Sports Arbitration[G] The ‘Prohibition of the Double-Hat’ under the Amended

Article S18 CAS CodeIII The Obligation of Disclosure under Article R33 CAS Code

[A] Purpose of the Duty to Disclose and Facts That Have to Be Disclosed

[B] Consequences of the Breach of the A rbitrator’s Duty of Disclosure

IV Conditions for Being Appointed in a CAS Procedure[A] General Condition: The M andatory List of CAS Arbitrators[B] Good Com mand of the Language of the Arbitration[C] Availability to Expeditiously Complete the Arbitration

V Annexes[A] Declaration of Independence[B] Ad Hoc Clerk’s Declaration of Independence[C] Guidelines for CAS Arbitrators Sent to CAS Arbitrators

Together w ith the Letter of Appointment[D] Application Form for CAS M em bership

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R34Challenge 157I Article R34: Introduction 158II Procedural Issues Related to the Challenge of an Arbitrator in CAS

Arbitration 160[A] Time Limit to File the Petition for Challenge 160[B] Powers of the ICAS Board to Discuss Challenges 162[C] Formal Conditions for the Challenge and Procedure before CAS 163

III Publication of the Reasoned Decisions on Challenge 163IV Review of the Decision on Challenge by the SFT 164

[A] The Finality of the Decision on Challenge of an Arbitrator 164[B] Power of the SFT to Order the Removal of an Arbitrator 164[C] Factual Basis for the Judgm ent of the SFT 165

V Annexes 166[A] Example of a Decision Rendered by the ICAS on the Petition for

Challenge 166[B] Decision Rendered by the ICAS on a Petition for Challenge 169

R35Removal 181I Article R35: Introduction 181II Conditions Prone to Lead to the Removal of Arbitrators 183III The Removal Procedure: Exclusive Competence of the ICAS /

The ICAS Board 184

R36Replacem ent 185I Article R36: Introduction 186II Cases in W hich an Arbitrator Is Replaced by A nother Arbitrator 186

[A] Death, Challenge, Removal 186[B] Resignation 187

[1] The Relationship betw een the Arbitrator and the Parties 187[2] Resignation of an Arbitrator for Valid Reasons 187[3] Replacem ent of an Arbitrator after His Valid Resignation 189

III Procedural Aspects Related to the Replacement of an Arbitrator 190[A] Application of the Provisions Applicable to the Appointment

of the Arbitrator 190[B] Continuation of the Proceedings in Case of Replacem ent of an

Arbitrator 191IV Annex 192

[A] Illustrative Table on Articles R33-R36 CAS Code 192

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R37Provisional and Conservatory M easures I 95I Article R37: Introduction 197II Provisional M easures according to the CAS Rules and Other

Arbitration Rules and Laws I 99III The Power of the CAS to Order Provisional M easures and the

W aiver of the Jurisdiction of State Courts 201IV The Procedure for Provisional M easures under Article R37 CAS Code 202

[A] Application by a Party and Position of the O pponent and theFiling of the CAS Court Office Fee 202

[B] Exhaustion of Legal Remedies and Prima Facie Control of CASJurisdiction 204

[C] Time Limit to Issue an Order: Cases of Utmost Urgency andRight to Be Heard 205

V Substantive Requirements for Granting the Provisional M easuresaccording to the CAS Case Law 207[A] Irreparable Harm 208[B] Likelihood of Success to the Merits 2 1 1[C] Balance of Interests 212

VI Enforcement of Provisional M easures and Provision of Security 214[A] Enforcement by the Arbitrator / the Division President 214[B] Provisional and Conservatory M easures Conditional upon the

Provision of Security 214VII Annexes 217

[A] Example of an Order Granting the Provisional M easureRequested 217

[B] Example of an Order Dismissing the Request for ProvisionalM easures 222

B Special Provisions Applicable to the Ordinary A rbitration Procedure 225

R38Request for Arbitration 227I Article R38: Introduction 228II The Request for Arbitration 229

[A] General 229[B] Request for Arbitration and Com m encem ent of the Proceedings 231[C] Content of the Request for Arbitration in Detail 231

[1] The Name and Full Address of the Respondent (s) 231[2] A Brief Statem ent of the Facts and Legal Argum ent,

Including a Statem ent of the Issue to Be Subm itted tothe CAS for Determ ination and the Request for Relief 232

[3] A Copy of the Contract Containing the Arbitration Agreement or of Any Docum ent Providing for Arbitration 233

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[4] N um ber of Arbitrators and Language of the Proceedings[D] The Court Office Fee Provided in Article R64.1

III Consequences from the Non-fulfilment of the Conditions Enum erated under Article R38

IV Annexes[A] Sample CAS Letter Following a Request for Arbitration[B] Statistics on the Registered Ordinary Procedures from 2004

to First Half of 2014[C] Example of a Request for Arbitration[D] Checklist for Request for Arbitration under Article R38 CAS Code

R39Initiation of the A rbitration by CAS and Answer: CAS JurisdictionI Article R39: IntroductionII Initiation of the Arbitration by the CAS, Answer, and Consolidation

of the Proceedings[A] Initiation of the Arbitration by the CAS[B] Time Limits of the Answer to the Request for Arbitration

and the Choice of Arbitrators[C] Extension of the Time Limit until the Payment of the Advance

of Costs and Counterclaims[D] Content of the Answer to the Request for Arbitration and

Counterclaims[E] Consolidation of the Proceedings (Article R39 Last Paragraph

CAS Code)III Control of CAS Jurisdiction and Article R39

[A] Power of the Panel to Rule on Its Own Jurisdiction: Kompetenz-Kompetenz

[B] Lis Pendens[C] Objection to the CAS Jurisdiction: Procedure

IV Annexes[A] Example of an Answer to the Request for Arbitration under

Article R39 CAS Code[B] Initiation of the Arbitration by CAS[C] Three-Stages Control of CAS Jurisdiction[D] Checklist: Answer to the Request

R40Form ation of the Panel I Article R40: Introduction

[A] Article R40 and the Appointm ent of the Arbitral Tribunal[B] The Choice of an Arbitrator from the CAS List of Arbitrators

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II Procedure for the A ppointm ent of Arbitrators according to the Composition of the Arbitral Tribunal[A] Constitution of the Panel: General Criteria for Appointing an

Arbitrator by the President of the Division 2§d[B] Appointm ent of a Sole Arbitrator: Criteria and Procedure 269[C] Appointm ent of a Panel of Three Arbitrators: Criteria and

Procedure 2?0III Confirmation of the Arbitrators and Transfer of the File 2?JIV Ad Hoc Clerks before CAS: Role, Duties and Limitations 27%V Annexes 27 A

[A] Statistics on the Constitution of the Panel Based on theRegistered Cases before CAS 2 7A

[B] Constitution of the Panel according to Article R40 2>5[C] Sample Notice of Form ation of a Panel 2>$

R41M ultiparty Arbitration 2 >7I Article R41: Introduction 250II Plurality of Claimants or / and Respondents and Constitution of the

Panel 253III Joinder (Article R41.2) and Intervention (Article R41.3) 255

[A] General Conditions 285[1] Binding A rbitration Agreem ent or Consent of All Parties 255

[a] General 255[b] Article R41.4 CAS Code and Swiss Law 257

[2] Case Law on the A rbitration Agreem ent and the Consentof the Parties 259

[3] Prima Facie Existence of an A rbitration Agreementbetw een the Parties 291

[4] Legal Interest of the Participant in the Arbitration Proceedings 291

[B] Procedure regarding the Joinder of a Third Party by theRespondent 292

[C] Procedure regarding the Intervention of a Third Party 294IV Admissibility of the Amicus Curiae Briefs 297

[A] General 297[B] Admissibility of the Amicus Curiae Briefs in the CAS Code 299

V M ultiparty Arbitration in the Olympic Games 301VI Annexes 302

[A] M ultiparty Arbitration in the CAS Code 302[B] Intervention - Participation of a Third Party to the Arbitration 303[C] Joinder of a Third Party by the Respondent 303[D] Constitution of the Panel in M ultiparty Arbitration 304

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R42Conciliation 305I Article R42: Introduction 305II Conciliation in Other A rbitration Rules 308III Conciliation Proceedings and CAS Case Law: Practical Issues 308IV Annex 310

[A] Statistics on Consent Awards Rendered by CAS 310

R43Confidentiality 311I Article R43: Introduction 311II Overview of Article R43 and Com parison to Article R59 CAS Code 312III Confidentiality in the Different Stages of the Arbitral Procedure 314

[A] Confidentiality of the Deliberations 315[B] Confidentiality of the Award 317[C] Violation of the Principle of Confidentiality 318

IV Conclusive Remarks 319

R44Procedure before the Panel 321I Article R44: Introduction 325II W ritten Procedure: Content and Time Limit 326III Oral Procedure 328

[A] Necessity to Have a Hearing 328[B] Conduct of the Hearing 329

IV W itnesses and Experts Heard by the Panel 331[A] General 331[B] W itnesses and Experts Heard by the Panel Based on Article

R44.2 334[C] Evidentiary Proceedings Ordered by the Panel according to

Article R44.3 334[1] General 334[2] Production of Evidence Requested by a Party and Right

to Be Heard 336[3] Production of Additional Evidence Ordered by the Panel 337

V Expedited Procedure: Conditions 339VI Default 339

[A] N on-subm ission of the Statem ent of Claim or the Response 339[B] Non-presence of the Parties / W itnesses at the Hearing 340

VII Annexes 342[A] Ordinary Procedure: Overview 342[B] W ritten Submissions: Different Steps and Content 343[C] Evidentiary M easures 343[D] Directions w ith Respect to CAS Hearings: Checklist 344[E] Example of an Expert’s Declaration of Independence 345

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[F] Example of an Order of Procedure in Ordinary ArbitrationProcedures 345

R45Law Applicable to the Merits 349I Article R45: Introduction 349II Law Chosen by the Parties in Ordinary Procedures 350

[A] Express Choice of Law Made by the Parties 351[B] Tacit Choice of Law and the Will of the Parties 352

III Application of Swiss Law in the Absence of a Choice by the Parties 354IV Authorization to Decide Ex Aequo Et Bono 355

R46Award 357I Article R46: Introduction 358II Conditions for the Issuance of the Award 359

[A] Award W ritten, Dated and Signed 359[B] Award Containing Brief Reasons 361[C] Deliberations of the Panel 364[D] Award Taken by Majority: Dissenting Opinions 365

[1] Award Taken by Majority 365[2] Dissenting Opinions 365

[E] Proofreading by the Secretary General 366III Notification of the Award: Effects 367

[A] General 367[B] Finality of the Award in Terms of Articles R46 and R59 368

[1] Finality of the Award and Appeal to the SFT 368[2] Appeal against Partial / Interlocutory Awards to the SFT 371

[C] Possibility to W aive the Appeal to the SFT 374[D] No Stare Decisis of CAS Case Law 375

C Special Provisions Applicable to the Appeal Arbitration Procedure 377

R47Appeal 379I Article R47: Introduction 380II The Conditions of Admissibility and Jurisdiction of the Appeal 382

[A] General 382[B] Notion of a Decision in Terms of Article R47 383

[1] Content and Form of the Decision 383[2] Denial of Justice and ‘Decision' in Terms of Article R47 387[3] Conclusion 388

[C] Arbitration Clause or Arbitration Agreement 389[D] Exhaustion of Legal Remedies 390

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III Appeals against Awards Rendered by CAS Acting as a First-Instance Tribunal

IV Annexes[A] Notion and Characteristics of a Decision w ithin the M eaning of

Article R47 of the CAS Code[B] Example of a ‘Prem ature’ Appeal[C] Table Indicating the Respective Provisions in Ordinary / Appeal

Procedures in the CAS Code[D] Indicative Statistics on the CAS Registered Appeal Procedures

R48Statem ent of AppealI Article R48: Introduction

[A] Overview of Article R48 of the CAS Code[B] Com parison to Article R38 on the Request for Arbitration in

Ordinary ProceduresII Content of the Statem ent of Appeal and Consequences of the

Non-conformity w ith the Requirements of Article R48[A] General[B] The Name and Full Address of the Respondent (s)

[1] General[2] Standing to Be Sued in CAS Appeals and Article 75

Swiss CC[C] Copy of the Decision Appealed against[D] The A ppellant’s Request for Relief[E] N om ination of Arbitrator by Appellant[F] Request for a Stay of the Appealed Decision[G] A Copy of the Contract Containing the Arbitration Agreement

or of Any Docum ent Providing for Arbitration[H] The Court Office Fee Provided in Article R64.1[I] Consequences from the Non-fulfilment of Article R48

III Annexes[A] Statistics on the Registered CAS Procedures from 1995 to 2013[B] Example of a Statem ent of Appeal under Article R48 CAS Code[C] Checklist for the Statem ent of Appeal under Article R48

CAS Code[D] Notification of the Statem ent of Appeal

R49Time Limit for AppealI Article R49: IntroductionII Calculation of the Time Limit to Appeal and Relation to Article R32

CAS CodeIII Legal N ature of the Time Limit to File the Statem ent of Appeal

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[A] Nature of Article R49 and Consequences from the Failureto Comply w ith the Time Limits 430

[B] Submissions Made by the O ther Parties before the Decision 432[C] Reinstatem ent of the Time Limit to File the Statem ent of Appeal 433[D] Request for Extension in Case of Reconsideration of the Case

before the Previous Instance 434[E] Conflict w ith Article 75 of the Swiss Civil Code 435

IV Annexes 436[A] Examples of the Time Limit to Appeal to CAS in the Rules of

Federations 436[B] Indicative Time Limit to File the S tatem ent of Appeal Pursuant

to Article R49 CAS Code 437[C] Term ination Order for an Appeal Filed Late: CAS 2010/A/2183

R. v. NADO 438

R50Num ber of Arbitrators 441I Article R50: Introduction 442II Num ber of Arbitrators 442

[A] Panel of Three Arbitrators as the Rule 442[B] Conditions for the Appointm ent of a Sole Arbitrator 444

III Submission of Cases Involving the Same Issues to the Same Panel:Distinction from Consolidation under Article R52 446

IV Annex 447[A] Constitution of the Panel in Appeal Procedures (Articles R50,

R53, R54) 447

R51Appeal Brief 449I Article R51: Introduction 450II Time Limit to File the Appeal Brief 451III Content of the Appeal Brief 452

[A] Brief Stating the Facts and the Legal Argum ents and Names ofW itnesses/Experts 452

[B] Request of Other Evidentiary M easures 453IV Annexes 455

[A] Appeal Procedure: Overview 455[B] Appeal Procedure: Different Steps and Content 456[C] Notification of the Receipt of the Appeal Brief by the CAS 456[D] Sample Declaration of Acceptance and Independence of Experts

Appointed by the CAS Panel 457

R52Initiation of the Arbitration by the CAS 459I Article R52: Introduction 460

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II Initiation of the Arbitration[A] Clear Lack of Arbitration Agreement[B] Actions to Set the Arbitration in Motion

III Expedited Procedure: ConditionsIV Conditions for the Consolidation of the Proceedings and Difference

from Article R50V Annexes

[A] Initiation of the Appeal Arbitration Proceedings by CAS[B] Three-Stages Control of CAS Jurisdiction[C] Letter, for Inform ation, to the Authority That Rendered the

Decision Appealed against[D] Letter Sent by the CAS Court Office Confirming the Expedited

Proceedings

R53N om ination of Arbitrator by the RespondentI Article R53: IntroductionII Num ber of Arbitrators in Appeal ProceduresIII Appointm ent of an Arbitrator by the Respondent or the Division

PresidentIV Annex

[A] Statistics on the Constitution of the Panel Based on the Registered Cases before CAS

R54A ppointm ent of the Sole A rbitrator or of the President and Confirmation of the Arbitrators by CASI Article R54: IntroductionII A ppointm ent of the Sole Arbitrator or the President of the Panel

by the Division PresidentIII Confirmation of the Arbitrators and Transfer of the FileIV Appointm ent of Ad Hoc Clerks in Appeal ProceedingsV M ultiparty A rbitration in Appeal ProceduresVI Annex

[A] Notice of Formation of the Panel

R55Answer of the Respondent: CAS JurisdictionI Article R55: IntroductionII Time Limit for the Answer and Possibility to Request an ExtensionIII Content of the AnswerIV Jurisdictional Issues Related to R55

[A] Power of the Panel to Rule on Its Own Jurisdiction: Kompetenz-Kompetenz

[B] Lis Pendens

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V Annexes[A] Example of an Answer to the Appeal under Article R55 CAS

Code[B] Initiation of the Appeal Arbitration Proceedings by CAS[C] Checklist: Answer to the Appeal

R56Appeal and Answer Complete: ConciliationI Article R56: IntroductionII No Right to Supplem ent the Parties’ Submissions after the Appeal

Brief and the Answer: Rule and Exceptions[A] M eaning and Interpretation of the Rule Established under

Article R56[B] Late Submissions and ‘Exceptional C ircum stances’

III Particularities of Conciliation in Appeal Procedures

R57Scope of Panel’s Review: HearingI Article R57: Introduction

[A] Short History of Article R57 through the A m endm ents of the CAS Code

II ‘Full Power of Review - The Facts and the Law’ through a De NovoHearing[A] Legal Basis of Article R57 and Rationale of the De Novo

Review[B] M eaning and Repercussions of the CAS’ Full Power of Review

of the Appealed Decision[C] Power to Issue a New Decision[D] Power to Revert the Case Back to the Previous Instance

III Consequence of the Full Power of Review: Healing Effect of ProceduralIrregularities Occurred in the Previous Instance[A] General Remarks[B] Healing Effect of Procedural Irregularities Occurred in the

Previous Instance[C] Serious Procedural Defects That Might Not Be Healed

through a De Novo Hearing before CASIV Other Legal and Practical Limitations to the CAS’ Full Power of

Review[A] Restrictions Set by the International Federations[B] Full Power to Review and Relationship w ith Article 75 CC

and Article R57 CAS Code[C] Discretion of the Panel to Refuse Evidence Based on Article R57

Paragraph 3 CAS Code[1] Scope and Rationale of the New Provision of Article R57

Paragraph 3 CAS Code

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[2] Some Issues Related to the Application of Article R57 Paragraph 3 CAS Code

[D] Other Limits in the CAS’ Full Power of ReviewV The Hearing

[A] General Remarks on the Preparation for the Hearing and the Conduct of the Hearing

[B] Conduct of the Hearing in Appeal Procedures[C] Hearing in the Absence of One of the Parties and Respect of

the Parties’ Right to Be HeardVI Annexes

[A] Example of an Order of Procedure in the Appeal Arbitration Procedure

[B] Directions w ith Respect to CAS Hearings - Checklist[C] Hearing Schedule Template

R58Law Applicable to the MeritsI Article R58: Introduction

[A] Short History of Article R58 through the Amendm ents of the CAS Code

[B] Law Applicable to the Merits according to Article 187 P1LA, Article R58 of the Code and Other Arbitration Rules

II Applicable Law Chosen by the Parties[A] Applicable Law Chosen by the Parties according to

Article 187 (1) PILA and Article R58[1] General[2] No State or National Law Chosen by the Parties

[B] Form of the Choice of the Applicable Law according to Article R58[1] M utatis M utandis Application of Article 116 PILA?[2] Tacit Choice of Law according to the CAS Case Law[3] Express Choice of Law according to the CAS Case Law

[C] Limits in the Freedom of the Parties to Choose the Applicable Law

III Law of the Federation, Association or the Sports-Related Body and ‘the Closest Connection’ with the Dispute[A] General Remarks[B] Ddpepage[C] CAS Awards Applying the Law of the Federation, Association

or the Sports-Related Body[1] FIFA Statutes and FIFA Regulations[2] Doping Issues, FIFA Statutes and the WADA Code

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Table of Contents

IV Choice of the Law That the Panel Deems A ppropriate and Obligation to Give Reasons for Such Decision: Difference from Ex Aequo et Bonoor Equity 555

V Consequences of the Violation of Article R58 and Appeal to the SFT 556

R59Award 559I Article R59: Introduction 561II Finality of the Award and Admissibility of the Appeal to the SFT 562

[A] Article 190 Paragraph 2 (a) PILA 564[B] Article 190 Paragraph 2 (b) PILA 568

[1] Scope and General Conditions of Article 190Paragraph 2 (b) PILA 568

[2] Interpretation of an Arbitration Clause according tothe SFT 571

[3] Limits to CAS Jurisdiction 573[C] Article 190 Paragraph 2 (c) PILA 574[D] Article 190 Paragraph 2 (d) PILA 576

[1] Scope of Article 190 Paragraph 2 (d) PILA 576[2] Applicable Law and Violation of the Parties’ Right to Be

Heard 578[E] Article 190 Paragraph 2 (e) PILA 581

[1] Introduction 581[2] Jurisprudence of the SFT on the Violation of Public Policy 582

[F] Finality and Possibility of Revision of the CAS Award 586III Time Limits to Render the Award in Appeal Proceedings 587IV Confidentiality of the Award Rendered by the CAS 588V Annexes 589

[A] Table with All Motions to Set Aside CAS Awards before the SFT Based on Article 190 Paragraph 2 PILA 589

[B] Grounds for Dismissal of M otions to Set Aside CAS Awardsbefore the SFT 596

[C] Outcome of Motions to Set Aside CAS Awards before the SFT 596[D] Grounds for Challenge of CAS Awards before the SFT 597[E] Provisions of the CAS Code Discussed in SFT Judgm ents 598

D Special Provisions Applicable to the Consultation Proceedings 601

R60-62 and R66[Abrogated] 603I Articles R60-R62 and R66 [Abrogated] 603

E Interpretation 605

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R63Interpretation 607I Article R63: Introduction 608II Procedure of In terpretation of CAS Awards 609

[A] Conditions 609[B] Decision on the Request for Interpretation 611

III Annex 612[A] Decision on Request for Interpretation: CAS 2006/A /1117 C. FC

v . E .FCEFC 612

F Costs of the A rbitration Proceedings 615

R64Costs of the A rbitration Proceedings - General 617I Article R64: Introduction 620II A rbitration Costs to Be Borne by the Parties according to Article R64 620

[A] Costs of Arbitration 620[B] The CAS Court Office Fee 622[C] Costs of W itnesses, Experts and Interpreters 623

III Calculation and Paym ent of the Advance of Costs 623IV Term ination of the Arbitration Procedure / CAS Award and

A rbitration Costs 626[A] Term ination before the Constitution of the Panel and Costs 626[B] D eterm ination of the Party Bearing the Arbitration Costs / Fees

in the Award (Article R64.5) 626V Annexes 630

[A] Term ination Order Due to Non-payment of the Advance of Costs 630[B] Award on Costs 631[C] A rbitrators’ Costs and Fees: Guidelines for the Costs of the

Arbitrators 636

R65Appeals against Decisions Issued by International Federations in Disciplinary M atters 639I Article R65: Introduction 641II Conditions for a Procedure to Be Free of Charge under Article R65.1 641III Exceptions to the Free of Charge Rule under Article R65.4 642IV Costs That Still Need to Be Borne by the Parties according to Article

R65.2 643

G M iscellaneous Provisions 645

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R67-R70Miscellaneous Provisions 647I Article R67: Transitional Provisions and Entry into Force of the CAS

Rules 648II Article R6 8 : Disclaimer regarding the W ork of CAS Arbitrators, CAS

M ediators, ICAS and Its M embers, CAS and Its Employees 649III Article R69: Authentic Version of the CAS Rules 651IV Article R70: Am endm ent of the CAS Procedural Rules 651

Bibliography 653

List of CAS Awards Referred to in the Com mentary 667

CAS Awards from the CAS Ad Hoc Divisions 687

Swiss Federal Tribunal Judgm ents 689

Index 697

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