Arbitration in Switzerland

The Practitioner’s Guide

EXCERPT
 Arbitration in Switzerland
The Practitioner’s Guide

Second edition

Volume II

Edited by

Dr. Manuel Arroyo, Attorney-at-Law, LL.M.

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 Chapter 15
The CAS Procedural Rules

© Court of Arbitration for Sport (CAS). The CAS Procedural Rules are available online:
<http://www.tas-cas.org/en/arbitration/code-procedural-rules.html>.
The text reproduced here is valid at the time of reproduction [June 2018]. As
amendments may be made from time to time, please consult the CAS website
<http://www.tas-cas.org/en/index.html> for the latest version.
 1419

Part I: Introduction to the CAS Code1

I HISTORY, STRUCTURE AND FUNCTIONING OF THE CAS

On the eve of the 1980 Winter Olympic Games in Lake Placid, the International 1
Olympic Committee (IOC) was sued before the US courts in relation to a conflict
regarding the flag under which the Taiwanese athletes were going to compete. This
premiere in Olympic history led the IOC to envisage the creation of a specialized
arbitral tribunal, which would have jurisdiction to hear sports disputes and could
render awards having the same binding force as the decisions of state courts.
Around the same time, athletes in various countries began to challenge their doping
suspensions before the national courts. The damages claimed were so high that, had
they been awarded, they could have meant the bankruptcy of the sports-governing
bodies which had issued the challenged decisions. It is against this background that
the statutes creating the Court of Arbitration for Sport (CAS) were ratified, in 1983.2
The CAS’s primary aim was to avoid the intervention of State courts, by resolving
sports disputes through a specialized tribunal within the family of sport.
Today, sports arbitration is a seemingly ever-growing industry,3 and the CAS as an 2
institution has become known worldwide, in particular because of the highly visible
activity of its Ad Hoc Divisions at the Olympic Games4 and its rulings in several
important cases involving top athletes or clubs. Under the supervision of the Swiss
Federal Supreme Court, the CAS has evolved, over the years, in both its structure
and functioning. It now truly stands, on a global level, as the most effective forum
to protect athletes’ rights.
Indeed, in its well-known Lazutina decision of 2003 the Swiss Supreme Court defined 3
the CAS as “one of the main pillars of organized sport” and emphasized the fact that
there is “no viable alternative to this institution, which can resolve international
sports-related disputes expeditiously and inexpensively”.5 In the same decision, the
Court described the history, structure and basic functioning of the CAS as follows:
“The CAS was officially created on 30 June 1984, when its Statute came into force.
Its function was to resolve sports-related disputes and its headquarters were established
in Lausanne. An independent arbitral institution without legal personality, it was
originally composed of 60 members, 15 appointed by the [International Olympic
Committee] IOC, 15 by the [International Federations] IFs, 15 by the [National Olympic

1 The authors would like to acknowledge the invaluable contributions of William McAuliffe and
Brianna Quinn, senior associates, and Juliette Platania, paralegal (all of Lévy Kaufmann-Kohler),
Lauren Pagé, Charlotte Perret, Fanny Hostettler and Eléonore Gallopin (all previously with Lévy
Kaufmann-Kohler), and Barbara Abegg (previously with TIMES Attorneys) and Simone Huser,
associate (of TIMES Attorneys).
2 The CAS became operational when its statutes entered into force, in June 1984. Cf., e.g.,
M’Baye, Une nouvelle institution d’arbitrage, le Tribunal Arbitral du Sport, Annuaire Français
de Droit International, 1984, pp. 409–424; Reeb, The Court of Arbitration for Sport: History
and Operation, CAS Digest III, pp. xxvii-xxxv; Rigozzi, paras. 230–250.
3 Nafziger, Arbitration of Rights and Obligations in the International Sports Arena, Valparaiso
University Law Review 2001, pp. 357–359.
4 For a comprehensive analysis of the Ad Hoc Division’s work, see Kaufmann-Kohler, Arbitration
at the Olympics, The Hague, Kluwer Law International, 2001.
5 BGE 129 III 445 para. 3.3.3.3; Yearbook Comm. Arbitration XXIX (2004), p. 207.
1420 Arbitration in Switzerland – The Practitioner’s Guide

Committees] NOCs and 15 by the IOC President. The operating costs of the CAS were
borne by the IOC, which was entitled to modify the CAS Statute. In a judgment issued
in 1993, the Federal Supreme Court expressed reservations concerning the CAS’ in-
dependence vis-à-vis the IOC on account of the organizational and financial links
between the two bodies. It thought that the CAS needed to become more independent
of the IOC. This judgment led to a major reform of the CAS. The main developments
were the creation of the International Council of Arbitration for Sport (ICAS) in Paris
on 22 June 1994 and the drafting of the Code of Sports-related Arbitration (hereinafter
the Code), which entered into force on 22 November 1994. A private-law foundation
subject to Swiss law (Art. 80 et seq. CC), the ICAS, whose seat is established in
Lausanne (Art. S1 of the Code), is composed of 20 members, namely high-level jurists
appointed in the following manner (Art. S4 of the Code): four members by the Summer
Olympic IFs (3) and Winter Olympic IFs (1), chosen from within or from outside
their membership; four members by the Association of the NOCs (ANOC), chosen
from within or from outside its membership, four members by the IOC, chosen from
within or from outside its membership, four members by the twelve members listed
above, after appropriate consultation with a view to safeguarding the interests of the
athletes; four members by the sixteen members listed above and chosen from among
personalities independent of the bodies designating the other members of the ICAS.
The members of the ICAS are appointed for a renewable period of four years. Upon
their appointment, they must sign a formal declaration of their independence (Art.
S5 of the Code). The ICAS members may not appear on the list of arbitrators of the
CAS nor act as counsel to one of the parties in proceedings before the CAS; under
certain circumstances, they must spontaneously disqualify themselves or [they] may
be challenged (Art. S5 and S11 of the Code). According to Art. 3 of the Agreement
related to the constitution of the ICAS, the foundation is funded through deductions
made by the IOC from the sums allocated to the following bodies as part of the IOC’s
revenue from the television rights for the Olympic Games: 4/12 by the IOC, 3/12 by
the Summer Olympic IFs, 1/12 by the Winter Olympic IFs and 4/12 by the ANOC.
The tasks of the ICAS include to safeguard the independence of the CAS and the
rights of the parties (Art. S2 of the Code). Its various functions include adopting and
amending the Code, managing and financing the CAS, drawing up the list of CAS
arbitrators who may be chosen by the parties, deciding on the challenge and removal
of arbitrators and appointing the Secretary General of the CAS (Art. S6 of the Code).
The CAS sets in operation panels which have the task of resolving disputes arising
within the field of sport. It is composed of two divisions, each headed by a president
who takes charge of the first arbitration operations before the panel of arbitrators is
appointed: the Ordinary Arbitration Division and the Appeals Arbitration Division
(Art. S12 of the Code). The former deals with cases submitted to the CAS as the sole
instance (execution of contracts, civil liability, etc.), while the latter hears appeals
against final-instance disciplinary decisions taken by sports bodies such as federations
(e.g., suspension of an athlete for doping, violence on the field of play or abuse of a
referee). The CAS has at least 150 arbitrators, who are not assigned to one particular
division (Art. S13 and S18 of the Code). The ICAS draws up the list of arbitrators,
which is updated and published (Art. S15 of the Code). It calls upon personalities
with legal training and who possess recognized competence with regard to sport,
while respecting the following distribution (Art. S14 of the Code) and ensuring,
wherever possible, fair representation of the different continents (Art. S16 of the
Code): one-fifth are selected from among the persons proposed by the IOC, the IFs
and the NOCs respectively, chosen from within its/their membership or from outside;
Introduction to the CAS Code – Rigozzi/Hasler/Noth 1421

one-fifth are chosen from among persons independent of these bodies; and, finally,
one-fifth are chosen after appropriate consultations with a view to safeguarding the
interests of the athletes. Only the arbitrators included on the list – they appear on
the list for a renewable period of four years (Art. S13 of the Code) – may serve on
panels (Art. R33, R38 and R39 of the Code). When they are appointed to a panel,
they must sign a formal declaration of their independence (Art. S18 of the Code).
Incidentally, arbitrators must immediately disclose any circumstances likely to affect
their independence with respect to any of the parties (Art. R33 of the Code). They
may be challenged if the circumstances give rise to legitimate doubts over their inde-
pendence. Challenges, which are in the exclusive power of the ICAS, must be brought
immediately after the ground for the challenge has become known (Art. R34 of the
Code). If three arbitrators are to be appointed, in the absence of an agreement, each
party appoints one arbitrator, one in the request and the other in the response, and
the President of the panel is selected by the two arbitrators or, if they do not agree,
by the President of the Division (Art. R40.2 of the Code). Any arbitrator selected by
the parties or by other arbitrators is only deemed appointed after confirmation by
the President of the Division. Once the panel is formed, the file is transferred to the
arbitrators for them to investigate the case and render their award. In 1996, the ICAS
created two permanent decentralized offices in Australia and the United States of
America. In the same year, a specific new institution was established: the CAS ad
hoc division. This is a temporary arbitral body, created by the ICAS under the terms
of Art. S6(8) of the Code for certain major sports events such as the Olympic Games,
Commonwealth Games and European Football Championships. For each ad hoc divi-
sion, the ICAS appoints a team of arbitrators which is usually based at the site of the
event concerned so that it can meet at any time during a fixed period. Special arbitra-
tion rules make provision for a simplified procedure for the formation of panels and
the settlement of disputes [the Ad Hoc Rules]. In principle, decisions must be made
within twenty-four hours of the application being filed. Having originally comprised
60 members, the CAS now has around 200 arbitrators. According to its Secretary
General, all Olympic IFs have recognized its jurisdiction, which indicates that, over
the years, it has become an indispensable institution in the world of sport”.6 Since
this decision was rendered, the number of CAS arbitrators has grown to about 350,7
Ad Hoc Divisions have been constituted also for other events, such as the FIFA
World Cups and the CAS Statutes have been amended and adjusted, in particular
as to the way in which the CAS list of arbitrators is compiled. This notwithstanding,
some elements remain which cause some discomfort and still provide the basis for
allegations of so-called ‘institutional bias’ on the part of the CAS. In the meantime,
the highest German civil court, the Deutsche Bundesgerichtshof (BGH), has concluded
in the Pechstein case that the CAS is a genuine (“echtes”) court of arbitration within
the meaning of the German code of civil procedure and not just a federation’s ad-
judicative body.8 In particular, the BGH expressly stated that the CAS is an
independent and neutral authority (“unabhängige und neutrale Instanz”).9 This is
the first time that a highest civil court of a country other than Switzerland has

6 BGE 129 III 445 para. 3.3.1; Yearbook Comm. Arbitration XXIX (2004), p. 214.
7 <http://www.tas-cas.org/en/arbitration/list-of-arbitrators-general-list.html>; cf. also Coates,
Message of the ICAS President, CAS Bull. 2012/1, p. 1 referring to a list of almost 300 arbitrators.
8 BGH decision of 7 June 2016 – KZR 6/15, para. 23: “Der CAS ist ein ‚echtes‘ Schiedsgericht im
Sinne der Zivilprozessordnung und nicht lediglich ein Verbandsgericht”.
9 BGH of 7 June 2016 – KZR 6/15, para. 24 et seq. Pechstein announced that she had appealed
against this decision to the Federal Constitutional Court (Bundesverfassungsgericht).
 1422 Arbitration in Switzerland – The Practitioner’s Guide

confirmed CAS’ capacity as a true arbitration court, fulfilling the applicable legal
requirements that correspond to high, internationally recognized standards.

II THE CAS’S STRUCTURAL INDEPENDENCE

4 In Lazutina, the Swiss Federal Supreme Court had already held that the CAS
constitutes a ‘true’ arbitral tribunal, which “is sufficiently independent vis-à-vis
the International Olympic Committee (IOC), as well as all other parties that call
upon its services, for its decisions in cases involving the IOC to be considered as true
awards, equivalent to the judgments of State courts”.10 Despite this clear ruling, the
so-called ‘structural independence’ of the CAS has been and is still questioned on
various grounds including (A.) the fact that the parties are not completely free to
choose ‘their’ arbitrator, as they are required to appoint an individual from the list
of CAS arbitrators, but also because of the ways in which (B.) the list of arbitra-
tors is compiled and (C.) the CAS is financed.11 That said some progress has been
made, and more may come; the CAS’s history shows that it is a constantly growing
and evolving institution, capable of adapting to the needs and expectations of its
constituencies (D.).

A The Closed List of Arbitrators

5 One of the main features of CAS arbitration is that only the individuals listed on
the ‘CAS list of arbitrators’ can be appointed to act as arbitrators (see Arts. R38,
R39 and R48 of the Code). The list is mandatory:12 if a party appoints an arbitrator
who is not on the list, the CAS will fix a new time limit to rectify the appointment
or will appoint an arbitrator in lieu of the non-compliant party.13
6 The ‘CAS list of arbitrators’ is available on the internet and now contains almost
400 names from all continents and legal backgrounds.14 The Swiss Federal Supreme
Court has held that the list is sufficiently long to ensure that the parties have a proper
choice among different names for prospective arbitrators, even taking into account
the nationality, language and sports practiced by the appellants (all factors which,
according to the Supreme Court should in any event be duly “put into perspective”).15
In practice, the main problem with this closed list is that it allows sports-governing
bodies to justify the recurrent appointment of arbitrators, in particular in areas of law
requiring specialization, such as doping disputes. However, this is an issue that can
and should be dealt with in the context of challenge proceedings under the Code.16

10 BGE 129 III 445; Yearbook Comm. Arbitration XXIX (2004), p. 225.
11 For a critical review, cf. Straubel, Enhancing the Performance of the Doping Court: How the
Court of Arbitration for Sport Can Do Its Job Better, 36 Loy. U. Chic. L.J. 2005, pp. 1205–1274;
available at <https://pdfs.semanticscholar.org/c4d0/3710015e087fd77a240f6419ece3a31985f6.
pdf>.
12 Mavromati/Reeb, para. 6 at R40.
13 Cf. CAS 2011/O/2574, UEFA v. Olympique des Alpes – FC Sion, Decision by the Deputy President
of CAS Ordinary Arbitration Division of 14 October 2011.
14 See <http://www.tas-cas.org/en/arbitration/list-of-arbitrators-general-list.html>. There is a
separate list with almost 100 names, from which parties are required to select arbitrators in
football disputes for cases involving FIFA, also available on the CAS website, at <http://www.
tas-cas.org/en/arbitration/list-of-arbitrators-football-list.html>.
15 BGE 129 III 445 para. 3.3.3.2.
16 Cf. Art. R33, paras. 3 et seq.
Introduction to the CAS Code – Rigozzi/Hasler/Noth 1423

From a structural point of view, the issue is whether the limitation of the parties’ 7
freedom to appoint their own arbitrator is acceptable. According to the Swiss Supreme
Court, it is justified by the need to guarantee the celerity of the proceedings and
consistency in the case law.17 While it is undeniable that these are admirable and
worthwhile objectives, they could possibly be served even better by opening up the
list of arbitrators and, in parallel, creating a list of presidents who would not only
possess “full legal training, recognized competence with regard to sports law and/or
international arbitration, a good knowledge of sport in general and a good command
of at least one CAS working language”, but also have no connection whatsoever
with the sports establishment.18 This suggestion has been endorsed in recent works
by commentators,19 and is increasingly accepted as the inevitable solution by some
of the most prominent CAS arbitrators.20

B The Way in Which the CAS List of Arbitrators is Compiled

Under the present rules (closed list of arbitrators), the crucial question remains how 8
the list is actually compiled. Indeed, the Swiss Supreme Court’s case law requires
that none of the parties should have an overriding influence on the composition
of the list of arbitrators. This was precisely the reason why, in Gundel, the Court
stated that as the list of arbitrators was compiled exclusively by the IOC, the CAS
would not have qualified as a true arbitral tribunal in a dispute involving the
IOC.21 Hence, one of the main aims of the 1994 reform was to reduce the CAS’s
dependence from the IOC.
As a consequence of that reform, from 1994 onwards, the list is compiled by the ICAS, 9
from among persons proposed according to the following criteria: one fifth of the
arbitrators appearing on the list is designated upon proposal by the IOC, two fifths
upon proposal by the international federations and national Olympic committees,
and the last two fifths are chosen among persons who are independent from the
bodies having proposed the other names, in order to safeguard the interests of the
athletes. In 2012, Art. S14 of the Code was modified to replace the above-mentioned
criteria by a sentence opening up the base from which the proposed names for the
list will be drawn. Thus, as from 1 January 2012, the ICAS was to compile the CAS
List of arbitrators by “call[ing] upon personalities […] whose names and qualifica-
tions are brought to the attention of the ICAS, including by the IOC, the IFs and the
NOCs”. The amendment seemed to respond to the mounting criticism regarding
what some have referred to as the ‘institutional bias’ of the CAS. While this was
clearly a step in the right direction, the interests of other important stakeholders, in
particular athletes and clubs, were still not sufficiently considered by this solution.
In the course of the 2016 revision of the Code, a further step in the right direction
was made by another amendment to Art. S14 which now reads, in relevant part,
as follows: (italics by the authors): “including by the IOC, the IFs, and the NOCs
and by the athletes’ commissions of the IOC, IFs and NOCs”. An additional desirable
measure to increase transparency in this respect would be that the short CVs of CAS

17 BGE 129 III 445 para. 3.3.3.2.

18 Rigozzi, para. 575.
19 Cf. Maisonneuve, para. 256.
20 Cf. Martens, The Role of the Arbitrator in CAS Proceedings, document distributed during the
2011 Seminar for CAS Arbitrators in Montreux, on file with the authors.
21 BGE 119 II 271 para. 3b.
 1424 Arbitration in Switzerland – The Practitioner’s Guide

arbitrators that are posted on the CAS website also indicate by which stakeholder
they were proposed for inclusion in the list. The same suggestion was made by
the Swiss Supreme Court, already in the Lazutina decision,22 but has never been
implemented despite promises to do so by the late president of the CAS.23
10 What the 2012, 2013, 2016 and 2017 revisions did not change are the modalities
of appointment of the ICAS members, which are often perceived as a further ele-
ment compounding the CAS’s ‘institutional bias’ problem. Art. S4 of the Code still
provides that the ICAS is composed of twenty members, all of whom are directly
or indirectly appointed by the Olympic sports-governing bodies, with no influence
from the clubs and athletes. From a structural point of view, the sports-governing
bodies can still exercise a preponderant influence on the CAS through the ICAS.
Indeed, the ICAS is not only in charge of compiling the CAS lists of arbitrators, but
will also decide any challenge that an athlete or a club could bring, for instance,
on the ground that an arbitrator (originally selected by the ICAS to be included in
the list) does not appear to be sufficiently independent from the sports-governing
body that appointed him (from the list compiled by ICAS) in a given case.24 A
similar structural imbalance exists as far as the appointment of panel presidents is
concerned. Indeed, in all disputes concerning decisions taken by sports-governing
bodies, the President of the panel is directly appointed by the President of the CAS
Appeals Division,25 who is a member of the ICAS. These issues form part of the
questions currently submitted to the European Court of Human Rights‘ scrutiny in
the Pechstein case.26 While the existing residual imbalance should not constitute a
sufficient reason to question the structural independence of the CAS, the actions
currently pending before the Strasbourg Court might encourage the ICAS to go the
extra mile in adjusting the Code so as to definitively eliminate the grounds for such
concerns. After all, while endorsing the current CAS system, the Swiss Supreme
Court’s Lazutina decision expressly noted that the CAS was still “perfectible” as
an institution.27 Ten years and several Code revisions after this statement, nothing
substantial has been changed to the very feature of the CAS that prompted the
Lausanne judges to add this caveat in their otherwise generously supportive opinion.

C The Financing of the CAS

11 The CAS system is partially financed by the filing fees and arbitration costs paid
by the parties,28 with the remaining, substantial, part being financed by the sports-
governing bodies (the IOC (1/3), the National Olympic Committees (NOCs) and
International Federations (IFs) (2/3)).29 In Lazutina, the Swiss Supreme Court

22 BGE 129 III 445 para. 3.3.3.2.

23 M’Baye, as per the press release published by the CAS on the day the Lazutina award was
issued (cf. Rigozzi, p. 296).
24 Cf. Art. R34.
25 Cf. Art. R54(2).
26 Pechstein v. Switzerland, Application number 67474/10, available at http://hudoc.echr.coe.
int/sites/eng/pages/search.aspx?i=001-117166. The applicant essentially alleges a violation of
Art. 6 § 1 (right to a fair hearing) and Art. 6 § 2 (presumption of innocence) of the Convention.
27 BGE 129 III 445, para. 3.3.3.3.
28 Cf. Art. R64.1.
29 According to Art. 3 of the 1994 Paris Agreement establishing the ICAS, the financing of this
foundation, which is drawn from the royalties received by the IOC for the television broad-
casting rights relating to the Olympic Games, is provided by the IOC (4/12), by the Olympic
Introduction to the CAS Code – Rigozzi/Hasler/Noth 1425

convincingly explained that recourse to financing by the sports governing bodies

was the inevitable consequence of the fact that athletes have to bear no or only
moderate costs for CAS proceedings, but also, more generally, that there was
no correlation between the financing of an arbitral institution and the structural
independence of the latter when one of the entities financing the system is a party
to an arbitration. In the words of the Court, “[t]his is illustrated, for example, by
the fact that State courts in countries governed by the rule of law are often required
to rule on disputes involving the State itself, without their judges’ independence
being questioned on the ground that they are financially linked to the State”.30 Any
fair analysis of the CAS’s financing should not overlook the fact that the system is
also financed to a significant extent by the CAS arbitrators themselves, who accept
to act in that capacity for a fee that, for many among them, is significantly lower
than those they could charge in standard commercial arbitration proceedings or
in their usual law practice.

D Outlook

The successive amendments made to the CAS Code have progressively reduced 12
the CAS’s institutional links with the sports-governing bodies. Promisingly, the
ICAS President indicated some time ago that consultations had been conducted
by ICAS with“[a]ll major stakeholders and users of CAS”, which would be “very
likely to lead to further amendments to the Code”.31 It is submitted that when such
consultations will be open to all users/stakeholders and conducted in a transpar-
ent way, the CAS’s actual and/or perceived problem of ‘institutional bias’ will be
definitively eliminated. In any event, it would be overly simplistic to assess the
independence of the CAS only in abstract terms. As noted by the Swiss Supreme
Court in Lazutina, the CAS has shown by the actions of its arbitrators that it was
not a ‘vassal’ court, passively submitted to the will of the sports establishment.32
This is a crucial aspect, and it should be emphasized, particularly in light of the
challenges currently pending before the Strasbourg Court. The obvious fact that
the system can be improved33 does not mean that it is not sufficiently independent
to qualify as a genuine arbitral system as now also confirmed by the German
Bundesgerichtshof in the Pechstein case.34

International Federations for the summer sports (3/12) and for winter sports (1/12), as well
as by the Association of National Olympic Committees (4/12).
30 BGE 129 III 445 para. 3.3.3.2. Moreover, as pragmatically noted by the Swiss Supreme Court,
“on a more general level, it is also hard to imagine that any other possible structure could ensure
the financial autarchy of the CAS […]”. The remaining criticisms in this respect fail to address
these aspects and the suggested alternative financing schemes are, it is submitted, simply
unrealistic (cf., e.g., Prof. Zen-Ruffinen’s proposal to have the CAS financed out of the Swiss
Federal Budget, as reported in Le Temps of 18 December 2011).
31 Cf. Coates, Message of the ICAS President, CAS Bulletin 2011/2, p. 2.
32 BGE 129 III 445 para. 3.3.3.3; Yearbook Comm. Arbitration XXIX (2004), p. 207.
33 Cf. para. 10 above, footnote 23.
34 Cf. para. 3 above.
 1426 Arbitration in Switzerland – The Practitioner’s Guide

III MAIN FEATURES OF CAS ARBITRATION

A Which Procedure for What Kind of Disputes?

13 According to Art. S1 of the Code, the CAS’s main purpose is to “resolve sports-related
disputes through arbitration […]”. CAS panels will hear only disputes relating to
sports.35 In practice, disputes submitted to the CAS can be divided into two categories:
(i) commercial and contractual disputes (e.g. sponsoring, image rights or employment
contracts), and (ii) disputes relating to decisions rendered by sports organizations,
in particular disciplinary disputes.
14 Commercial sports disputes are assigned36 to panels of the Ordinary Arbitral Divi-
sion. They are decided pursuant to the General Provisions of the Procedural Rules
in the CAS Code (Arts. R27 to R37), and to the Special Provisions Applicable to
the Ordinary Arbitration Procedure (Arts. R38 to R46 of the Code; hereinafter, the
“[CAS] ordinary procedure”). In substance, the CAS ordinary procedure does not
differ from that stipulated in other standard commercial arbitration rules, and is
characterized by a great deal of procedural autonomy for the parties.37 In principle,
both the proceedings and the award are confidential.38
15 Disputes concerning decisions by sports-governing organizations are assigned to
panels in the Appeals Arbitration Division. Such cases are decided pursuant to the
General Provisions of the CAS Code (Art. R27 to R37) and to the Special Provisions
Applicable to the Appeals Arbitration Procedure (Arts. R47 to R59 of the Code;
hereinafter, the “[CAS] appeals procedure”). These provisions limit party autonomy
in various ways, including by setting a series of time limits for each step of the
proceedings, e.g. for filing a statement of appeal and the for the appointment of
arbitrators.39 The final award – which as a rule is not confidential – must be delivered
within three months after transfer of the file to the panel.40
16 This latter feature of the appeals procedure can be explained by the fact that it was
originally reserved for disciplinary disputes, in which the award must be delivered
quickly. The archetypal disciplinary disputes are those related to doping. The World
Anti-Doping Code (WADA Code), which is mandatory for all federations that are
members of the Olympic Movement, provides that the CAS has jurisdiction to hear
all doping disputes involving athletes competing at an international level.41
17 The other main type of disputes that is most commonly resolved in CAS under the
appeals procedure are appeals from decisions issued by FIFA, the world governing
body for football, which has its own internal judicial system, in particular under the
FIFA Regulations on the Status and Transfer of Players. Disputes within the ambit of
these regulations typically arise from the termination of the employment contracts

35 Cf. Art. R27, paras. 19–20 below.

36 Cf. Art. S20.
37 For an overview, cf., e.g., Kaufmann-Kohler/Bärtsch.
38 Cf. Art. R43, para. 7 below.
39 Cf. Arts. R48, R49 and R53.
40 Cf. Art. R59(5).
41 Cf. Art. 13 WADA Code. In Switzerland, the jurisdiction of the CAS has been extended to
disputes involving athletes competing at a national level (Art. 13.2.1 of the Statutes relating to
doping of Swiss Olympic, available in French and German at: <http://www.antidoping.ch/
en/glossary/swiss-olympic-doping-statute>).
Introduction to the CAS Code – Rigozzi/Hasler/Noth 1427

of players or coaches, or the transfer of players between clubs. As a consequence of

such transfers, remuneration is generally payable to the player’s previous club(s),
either pursuant to contractual agreements between the parties or according to the
complex series of regulations that apply to football transfers, both in a national and
international context.42

B The Lex Arbitri

Pursuant to Art. R28 ab initio of the CAS Code, “[t]he seat of the CAS and of each 18
Arbitration Panel (‘Panel’) is in Lausanne, Switzerland”.43 The same applies to the
panels of the CAS Ad Hoc Division(s), e.g., for the Olympic Games (cf. Art. 7 of
the Ad Hoc Rules). This means that all CAS arbitration proceedings are governed
by Swiss arbitration law, which is widely regarded as being ‘arbitration friendly’. It
also means that actions to set aside against awards rendered by the CAS can only be
filed with the Swiss Federal Supreme Court, which ensures that there is procedural
consistency between all CAS cases.
Chapter 12 of the PILS applies in all CAS cases where at least one party has its domicile 19
or habitual residence outside Switzerland (international arbitration), provided the
parties have not excluded its application and agreed to the application of part 3 of
the ZPO (governing domestic arbitration);44 if none of the parties has its domicile
or habitual residence outside Switzerland, part 3 of the ZPO will apply.45 That said,
an opting-out provision was enacted in the ZPO to avoid the inevitable unequal
treatment due to the application of two different legal regimes governing arbitra-
tion in cases that are virtually identical but for the domiciles or places of habitual
residence of the parties involved.46 To our knowledge, however, sports-governing
bodies have not (yet) varied their regulations to take advantage of this opportunity.

C Parties’ Representation

As explicitly acknowledged by the Swiss Supreme Court, it is a consequence of the 20

small world of international arbitration that individuals often find themselves work-
ing alongside each other in different cases.47 In particular, the fact that an arbitrator
in one CAS arbitration was at the same time sitting in another CAS panel together
with counsel to one of the parties to the first arbitration did not, in itself, suffice to
question his impartiality.48 It was therefore all the more remarkable that shortly after
the Supreme Court rendered the decision just referred to, the ICAS issued a circular to
the attention of CAS arbitrators recommending that they renounce acting as a counsel

42 Cf., e.g., Haas, Football Disputes between Players and Clubs before the CAS, in: Bernasconi/
Rigozzi (eds), Football Disputes, Doping and CAS Arbitration, Bern: Editions Weblaw, 2009, pp.
215–246, and Fumagalli, Disputes between Clubs before the CAS, in: Bernasconi/Rigozzi (eds),
Football Disputes, Doping and CAS Arbitration, Bern: Editions Weblaw, 2009, pp. 251–269.
43 Cf. Art. R28, para. 2 below.
44 Cf. Orelli, above commentary on Art. 176 PILS (Chapter 2), paras. 21–32.
45 Cf. Art. 353(1) ZPO – provided the parties have not agreed to exclude the applicability of the
ZPO and agreed that the provisions of Chapter 12 PILS shall apply instead (so-called opting
out; Art. 353(2) ZPO).
46 Cf. Art. 353(2) ZPO. Rigozzi/Hochuli, Die Internationalität der Schiedsgerichtsbarkeit in
Sportstreitigkeiten, Jusletter of 27 November 2006, paras. 24–25.
47 BGE 129 III 445 para. 3.3.3.
48 BGer. 4P.105/2006 para. 4.
 1428 Arbitration in Switzerland – The Practitioner’s Guide

before the CAS in order to avoid creating an appearance of imbalance between the
parties appearing before a CAS panel.49 With the 2010 revision of the Code, a new
Art. S18(3) has been adopted. According to this provision, “CAS arbitrators and
mediators may [no longer] act as counsel for a party before the CAS”. Contrary to the
recommendations expressed in the earlier circular, which were not necessarily taken
too seriously by all CAS arbitrators at the time, the new Art. S18(3) is binding.50
21 That said, the rule targets only the arbitrator himself, not the other members of his
law firm.51 As a result, law firms with lawyers who are on the list of CAS arbitrators
may still benefit from advantages such as having access to unpublished CAS case
law and other non-public data and information.52 In the event an arbitrator were to
breach his or her duties under Art. S18, the ICAS has the power to sanction such
conduct, including by a temporary or permanent suspension.53
22 Notwithstanding this provision, it remains unclear whether a CAS arbitrator who
also acts as counsel in CAS proceedings can be challenged on this ground.54 In the
light of the above-mentioned jurisprudence of the Swiss Supreme Court, this may
not constitute a ground for disqualification for lack of independence or impartiality
within the meaning of Art. 33 of the Code.55 Therefore, it would seem that Art. S18(3)
is more aimed at preserving the credibility and image of the CAS as an institution,
than at actual avoiding conflicts of interest.56

IV THE CAS CODE

23 The CAS Code, or more precisely the “Code of Sports-related Arbitration and Media-
tion Rules”, consists of several different sets of rules, namely The Statutes of the
Bodies Working for the Settlement of Sports-related Disputes; the CAS Procedural
Rules; the CAS Mediation Rules and the Arbitration Rules for the Olympic Games.
These rules are all published on the CAS website.57 They are also customarily issued
in the form of a small green booklet in both the working languages of the CAS,
French and English.58 The CAS Code was amended in 1994, 2004, 2010, 2011, 2012,
2013, 2016 and 2017. Clearly, the trend in recent years appears to be towards more
frequent revisions. While this is not problematic in itself, the nature of the changes
made and the manner in which they are decided may give rise to some concerns. In
particular, it is difficult to avoid having the impression that the process is somewhat
piecemeal and reactive (consisting of incremental adjustments to take into account,

49 Rigozzi, Jusletter of 13 September 2010, para. 8.

50 Rigozzi, Jusletter of 13 September 2010, para. 9.
51 CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/FC Sion, Award of 31 January 2012, para.
93; Reeb, CAS Bull. 2010/1, p. 32; Rigozzi, Jusletter of 13 September 2010, para. 9.
52 Critical on this Rigozzi, Jusletter of 13 September 2010, para. 9.
53 Art. S19(2).
54 Rigozzi, Jusletter of 13 September 2010, para. 11.
55 BGer. 4P.105/2006 para. 4.
56 Rigozzi, Jusletter of 13 September 2010, para. 11.
57 See <http://www.tas-cas.org> under the clickable terms “ICAS”, “Arbitration” and
“Mediation”.
58 Cf. Art. R29, para. 7 below. However, no such “hard copy” version was made available for the
2012 and 2016 amendments.
Introduction to the CAS Code – Rigozzi/Hasler/Noth 1429

for instance, recent jurisprudential developments), rather than being implemented

as a systematic review.59
The “Statutes of the Bodies Working for the Settlement of Sports-related Disputes” 24
(Arts. S1-S26 of the Code) govern the organization of ICAS and the CAS. Arts. R27-
R70 are the CAS’s “Procedural Rules” properly speaking: they lay down the rules
governing CAS arbitration procedures, whether they are conducted as ordinary or
as appeals proceedings. The “Arbitration Rules for the Olympic Games” are specific
arbitration rules applying to disputes arising during the Olympic Games.60 Finally,
in 1999, the CAS has adopted a set of Mediation Rules, which were revised and
amended in 2013 and 2016.61
The CAS Statutes, Arbitration and Mediation Rules are complemented by several 25
“Appendixes”.62 Appendix I contains standard clauses recommended by the CAS to
those who wish to include a reference to arbitration/mediation by the CAS.
The wording of these standard clauses for submission to the CAS ordinary arbitration 26
procedure is as follows:

Arbitration clause to be inserted in a contract

“Any dispute arising from or related to the present contract will be submitted
exclusively to the Court of Arbitration for Sport in Lausanne, Switzerland,
and resolved definitively in accordance with the Code of sports-related
arbitration.”

Optional explanatory phrases

“The Panel will consist of one [or three] arbitrator(s).”
“The language of the arbitration will be […]”

Arbitration agreement concluded after the dispute has arisen

[Brief description of the dispute]
The dispute will be submitted exclusively to the Court of Arbitration for
Sport in Lausanne, Switzerland, and settled definitively in accordance with
the Code of sports-related arbitration.

Alternative 1
The Panel set in operation by the Court of Arbitration for Sport will consist of
a sole arbitrator designated by the President of the CAS Division concerned.

59 Critical also Noth/Abegg, Neuerungen im CAS-Code 2013, Causa Sport 2013, pp. 112, 117.
60 As explained on the CAS website, “since 1996 [at the Atlanta Olympic Games], ad hoc divisions
have been created for each edition of the Olympic Summer and Winter Games. Ad hoc divisions
were also set up for the Commonwealth Games since 1998, for the UEFA European Championship
since 2000 and for the FIFA World Cup in 2006”. At the very latest since the Olypmpic Summer
Games 2012, the names of the members of the Olympic CAS Ad Hoc Division are published by
the CAS in advance (see e.g. regarding the Summer Games 2016: <http://www.tas-cas.org/
fileadmin/user_upload/Media_Release_Rio_2016_ad_hoc.pdf>).
61 Cf., e.g., Blackshaw, Sport, Mediation and Arbitration, The Hague: T.M.C. Asser Press, 2009,
pp. 46–69.
62 Appendixes I to IV.
 1430 Arbitration in Switzerland – The Practitioner’s Guide

Alternative 2
The Panel set in operation by the Court of Arbitration for Sport will consist
of three arbitrators. Each party designates the following arbitrator :

Claimant: Mr/Mrs [insert the name of a person included on the list of CAS
arbitrators (see Annex I)];

Defendant: Mr/Mrs [insert the name of a person included on the list of

CAS arbitrators (see Annex I)];

These two arbitrators will designate the President of the Panel within 30
days following the signature of this agreement. If no agreement is reached
within this time limit, the President of the Division concerned will designate
the President of the Panel.”
27 With regard to the appeals procedure, the following alternative wordings are recom-
mended, depending on the circumstances:

1. Arbitration clause to be inserted within the statutes of a sports federation,

association or other sports body
“Any decision made by [insert the name of the disciplinary tribunal or
similar court of the sports federation, association or sports body which
constitutes the highest internal tribunal] may be submitted exclusively by
way of appeal to the Court of Arbitration for Sport in Lausanne, Switzerland,
which will resolve the dispute definitively in accordance with the Code
of sports-related arbitration. The time limit for appeal is twenty-one days
after the reception of the decision concerning the appeal.”

2. Acceptance of the arbitration clause by athletes

It is important that athletes expressly accept in writing this clause of the
statutes. They may do so either by means of a general written declaration
applicable to all future disputes between them and the sports federation,
association or other sports body (see section a below), or by a written
declaration limited to a specific sports event (see section b below).

a. Standard general declaration

“I the undersigned […] accept the statutes of [name of the federation], in
particular the provision which foresees the exclusive competence of the
Court of Arbitration for Sport.”

b. Declaration limited to an event

“Within the framework of my participation in [name of the event], I the
undersigned […] accept that any decision made by the highest internal
tribunal in relation to this event may be the object of appeal arbitration
proceedings pursuant to the Code of sports-related arbitration of the Court
of Arbitration for Sport in Lausanne, Switzerland. I accept the competence
of the CAS, excluding all recourse to ordinary courts.”

Note: The validity of the clause excluding recourse to ordinary courts is

not recognized by all national legal systems.
Introduction to the CAS Code – Rigozzi/Hasler/Noth 1431

Federations and organizers are recommended to check the validity of this

clause within their own legal system.
Appendix II, setting out the CAS “Schedule of Arbitration Costs” is also of great 28
practical importance.63 This appendix contains rules regarding the CAS Court Office
fee, the institution’s administrative costs and the arbitrators’ and ad hoc clerks’
costs and fees.

V CONCLUDING REMARKS

Since its creation more than thirty years ago, the Lausanne-based Court of Arbitration 29
for Sport has experienced significant changes, not only in its structure and organi-
zation, but also in terms of the volume and nature of the workload it handles.64 The
CAS’s arbitration rules, commented in the following pages, enable the CAS and its
panels to fulfill their day-to-day mission of resolving the disputes brought before
them, whilst giving life to this unique institution, at the pinnacle of the world-wide
dispute-settlement system for sports. To our knowledge, our commentary in the first
edition of this Practitioner’s Guide of 2013 was the first article-by-article commentary
to be published on the CAS rules: in it, we attempted to provide a first systematic
discussion of the workings and specificities of CAS arbitration, in particular from the
point of view of its users. In the meantime a second article-by-article commentary on
the CAS rules was published65 and no doubt that further commentaries and further
new editions like this one will appear, reflecting the growing attention devoted to the
CAS by both academics and practitioners. Hopefully, this closer scrutiny of the CAS’s
rules, practice and procedures will help bring about the reforms needed to reaffirm
its legitimacy and consolidate its status as the ‘supreme court of world sport’.66

63 Cf. also Arts. R64 and R65 below.

64 Cf. the statistics of the CAS since its inception, available at <http://www.tas-cas.org/fileadmin/
user_upload/CAS_statistics_2016.pdf>.
65 Mavromati Despina/Reeb Matthieu, The Code of the Court of Arbitration for Sport, Commentary,
Cases and Materials, 2015 Kluwer Law International BV, The Netherlands.
66 BGE 129 III 445 para. 3.3.3.3.
 1433

Part II: Commentary on the CAS Procedural Rules

A. General Provisions (Arts. R27 – R37)

Article R27: Application of the Rules

These Procedural Rules apply whenever the parties have agreed to refer a sports-
related dispute to CAS. Such reference may arise out of an arbitration clause
contained in a contract or regulations or by reason of a later arbitration agreement
(ordinary arbitration proceedings) or may involve an appeal against a decision
rendered by a federation, association or sports-related body where the statutes or
regulations of such bodies, or a specific agreement provide for an appeal to CAS
(appeal arbitration proceedings).
Such disputes may involve matters of principle relating to sport or matters of
pecuniary or other interests relating to the practice or the development of sport and
may include, more generally, any activity or matter related or connected to sport.

I PURPOSE OF THE PROVISION

Article R27 defines what rules apply if the parties agree to submit a dispute to the 1
CAS. Furthermore, the provision specifies the requirements in order for the CAS
to be competent and, consequently, the jurisdiction of the CAS to apply.1 Finally,
this provision indicates the two types of proceedings under the CAS Code: ordinary
arbitration proceedings and appeal arbitration proceedings.2

II CONTENT OF THE PROVISION

A Applicability of the CAS Code

According to Art. R27(1), first sentence, the procedural rules contemplated in Arts. 2
R27-R70 (the CAS Code) apply in all cases in which the parties have agreed to refer
their sports-related disputes to the CAS.3 This provision clarifies that arbitration
proceedings at the CAS cannot be conducted under procedural rules other than
those of the CAS Code. Nevertheless, special ad-hoc rules apply in case of ad-hoc
arbitration proceedings at the Olympic Games, i.e., the “Arbitration Rules for the
Olympic Games”, which have been specifically drafted for the Olympics.4

1 CAS 2002/O/422, Besiktas v. FIFA & SC Freiburg, Award of 10 March 2003, para. 4.
2 See also Art. S12(3). The consultation proceedings (advisory opinion) have been discontinued
in the course of the 2012 revision of the CAS Code effective as of 1 January 2012.
3 Confirmed by CAS jurisprudence, e.g., CAS 2008/A/1644, M. v. Chelsea Football Club Ltd.,
Award of 31 July 2009, para. 10.
4 Cf. Reeb, pp. 177–186.
 1434 Arbitration in Switzerland – The Practitioner’s Guide

3 The CAS Code is amended or supplemented from time to time.5 As a consequence, the
question may arise as to which version should govern a given arbitration case before
the CAS. If the arbitration agreement does not answer this question, the version in
force at the time of the initiation of the arbitration proceedings shall be applicable,
because, most often, the parties agree on the relevant institution in recognition of
its reputation as an arbitral institution and not because of the specific provisions
of its rules at the time of the conclusion of the arbitration agreement.6 This means
that the current rules, i.e., amended as of 1 January 2017, apply in principle to all
procedures initiated by the CAS on or after 1 January 2017, even if another version
of the CAS Code was in force at the time the arbitration agreement was concluded.7
4 The CAS Code may also apply independently of whether or not the CAS is competent
to decide the dispute. For example, the parties may agree on an ad-hoc tribunal
applying the CAS Code. If, however, the parties have agreed to the competence of
the CAS, the latter will always apply the CAS Code. The question may arise whether
or not the parties are entitled to deviate from, or substitute some of the provisions of
the CAS Code. This is, in principle, admissible wherever the CAS Code (specifically)
provides for the respective autonomy of the parties (e.g. time limits, Art. R49). In all
other instances, one will have to differentiate between mandatory and non-mandatory
provisions. Mandatory provisions are rules of the CAS Code on which “the arbitration
system itself is built”.8 Accordingly, the CAS has a legitimate interest in upholding
them without any changes.9 Examples of such “mandatory” rules are the number of
arbitrators assigned to an individual case, the “closed” list of CAS arbitrators who
may be appointed to a case, the seat of the arbitral tribunal, the provision on costs of
CAS proceedings, the scrutiny of the CAS award by the Secretary General (R59(2)),
or the official languages of the CAS. The parties cannot opt out of such provisions
and at the same time submit the dispute to the CAS. If the parties wish to deviate
from such (mandatory) rules they must resort to ad-hoc arbitration instead. It may
be difficult in an individual case to establish whether or not a specific provision of
the CAS Code is mandatory. In essence, those provisions of the CAS Code are to be
considered as mandatory that pertain to the “well-functioning” of the CAS as an
arbitral institution. To state an example, the CAS has held that the “prohibition” of
counterclaims in appeal arbitration proceedings is mandatory and that the parties
cannot deviate from it.10

5 The CAS Code has been subject to seven revisions in recent years, i.e. the 2017 revision effec-
tive as of 1 January 2017, the 2016 revision effective as of 1 January 2016, the 2013 revision
effective as of 1 March 2013, the 2012 revision effective as of 1 January 2012, the 2011 revision
effective as of 1 January 2011, the 2010 revision effective as of 1 January 2010, and the 2004
revision effective as of 22 November 2004. For an overview on the 2013 revision, see Noth/
Abegg, Neuerungen im CAS-Code 2013, Causa Sport 2013, pp. 112–117; Rigozzi/Hasler/Quinn,
The 2011, 2012 and 2013 Revisions to the Code of Sports-Related Arbitration, jusletter 3 June
2013; on the 2012 revision see, e.g., Reeb, CAS Bull 2012/1, pp. 30–37; Kraehe, SPuRt 2012, p.
17. For an overview on the 2010 revision see, e.g., Rigozzi, Jusletter 13 September 2010 or Reeb,
CAS Bull. 2010/1, pp. 30–33.
6 BGer. 4P_253/2003 para. 5.4.
7 Cf. also Art. R67, first sentence. The procedures which are pending on 1 January 2017 remain
subject to the rules in force before 1 January 2017, unless both parties request the application
of the amended rules, cf. Art. R67, second sentence.
8 Beloff/Netzle/Haas, in Lewis/Taylor, para. E3.65.
9 CAS 2012/A/2943, Bulgarian Chess Federation v. FIDE, Award of 8 April 2013, para. 8.38.
10 CAS 2012/A/3031 Katusha Management SA v. UCI, Award of 15 February 2013, (referring to
TAS 2010/A/2101), paras. 75–82.
Article R27 CAS Code – Noth/Haas 1435

In case the parties have modified, or deviated from, a mandatory provision of the 5
CAS Code, the question arises what consequences follow therefrom. According to
Swiss legal doctrine, where the parties deviate from the fundamental rules of an
arbitral institution, such modified rules, if agreed-upon, shall not be considered
null and void. However, the arbitral tribunal may nonetheless refuse to administer
proceedings if the applicable procedural rules substantially deviate from the rules
of the relevant institution.11 In case of doubt, thus, the parties will preferably stick
to the mandatory provisions of the CAS Code rather than having their case not
administered and dealt with by the CAS. Where the agreement of the parties does
not touch upon any mandatory provision of the CAS Code, questions of this kind
need not be considered.12
The parties’ autonomy to deviate from the CAS Code may not only be restricted 6
by mandatory provisions of the CAS Code, but also by mandatory provisions or
principles of international law (in particular Art. 6 ECHR) and/or by Art. 182(3)
PILS and Art. 373(4) ZPO. Agreements on procedural issues, – existing, for instance,
in the rules and regulations of a sport federation – thus, must not violate the
principle of equal treatment, the principle of fair proceedings, the right to be heard
or the principle of access to justice. This may require that a CAS Panel review the
procedural agreement of the parties, in particular in cases of unequal bargaining
power.13 On this basis, rules derogating from the CAS Code by (a) imposing an
extremely short deadline of appeal or (b) a unilateral requirement for a member
to reveal third-party funding when bringing proceedings against an association; or
by (c) requiring security for costs from every member bringing an appeal against
a federation, regardless of their financial situation; or (d) providing for unequal
rights to claim costs in proceedings may be declared null and void, depending
on the manner in which they were drafted and on whether or not there are good
reasons of administration of justice to justify such rules.14 Furthermore, it should
be noted that the formal requirements for an arbitration agreement to be valid are
not applicable to procedural agreements.
In case the CAS Code contains a lacuna or remains silent on a specific issue, Swiss 7
procedural law (ZPO) does not apply by default (unless the parties have agreed
otherwise).15 Instead, the procedure is to be determined by the Panel sitting in the
matter at hand (Art. 182(2) PILS). In exercising its discretion how to fill the proce-
dural lacuna, the Panel may look at principles of Swiss procedural law as a source
of inspiration.16 However, caution should be exercised when applying principles of
Swiss civil procedure. This concerns, inter alia, the requirement for a party to have
a “legal interest” (“Rechtsschutzinteresse”, “intérêt légitime”) when asking for
declaratory relief.17 The respective threshold in Swiss civil procedure is particularly

11 Kaufmann-Kohler/Rigozzi, paras. 6.53 et seq.

12 CAS 2012/A/2943, Bulgarian Chess Federation v. FIDE, Award of 8 April 2013, para. 8.39.
13 Beloff/Netzle/Haas, in Lewis/Taylor, para. E3.66.
14 CAS 2012/A/2943, Bulgarian Chess Federation v. FIDE, Award of 8 April 2013, paras. 8.44–8.55;
CAS 2008/A/1782, Volandri v. ITF, Award of 30 March 2009, para. 70; CAS 2012/A/3031, Katusha
Management SA v. UCI, Award of 15 February 2013, para. 68.
15 Beloff/Netzle/Haas, in Lewis/Taylor, para. E3.61.
16 CAS 2009/A/1879, Alejandro Valverde Belmonte v. CONI et al., Award of 16 March 2010, para.
135.
17 The legal interest – according to recent jurisprudence by the Swiss Federal Supreme Court – is
a matter of procedure governed by the lex fori, BGer 5A_88/2011, para. 4.
 1436 Arbitration in Switzerland – The Practitioner’s Guide

high,18 first and foremost due to public interests, i.e., to restrict the case load for the
courts. This is clearly evidenced by the fact that the courts examine this (procedural)
condition sua sponte. However, it is obvious that such aspects of public interest are
of little concern in an arbitration proceeding and that, in general, conditions provided
for in civil procedure cannot always be applied mutatis mutandis to arbitration.19

B Jurisdiction of the CAS

1 The Power of CAS Panels to Decide on Their Jurisdiction

8 According to Art. 186(1) PILS and Art. 359 ZPO, arbitral tribunals have the power to
decide on their own jurisdiction (so called competence-competence). This principle
belongs to the mandatory rules of the Swiss lex arbitri,20 and may be considered
an internationally recognized standard.21 Since the 2012 revision of the CAS Code,
effective as from 1 January 2012, it has been enshrined in Arts. R39 and R55 of
the CAS Code. However, this principle was already expressly recognized by CAS
jurisprudence before this revision.22 The Panel may decide on its jurisdiction in an
interlocutory decision (Art. 186(3) PILS or Art. 359(1) ZPO) or in the final award.23
9 Pursuant to Art. R27(1), the CAS may affirm its jurisdiction provided there is a
valid arbitration agreement referring the sports-related dispute to the CAS. The
arbitration agreement is valid24 if (i) the parties have agreed on the essential elements
(essentialia negotii), (ii) the formal requirements regarding the agreement are met,
(iii) the subject-matter of the dispute can effectively be submitted to arbitration
(objective arbitrability),25 and (iv) the parties had the capacity to enter into a
binding arbitration agreement (subjective arbitrability26).27 The main effect of a valid
arbitration agreement is to exclude the jurisdiction of State courts in favor of dispute

18 For a comparative analysis of the (very strict) Swiss jurisprudence with reference to Art. 88
CCP, see Haas, in FS Gottwald, 2014, pp. 215 et seq.
19 Cf. Girsberger/Voser, 2016, para. 1194.
20 Kaufmann-Kohler/Rigozzi, paras. 5.09 seq; Mavromati/Reeb, Art. R27, para. 23 et seq.; Poudret/
Besson, para. 462; Berger/Kellerhals, para. 670.
21 Berger/Kellerhals, paras. 664 and 666.
22 E.g., CAS 2009/A/1910, Telecom Egypt Club v. EFA, Award of 9 September 2010, para. 2; CAS
2005/A/952, Cole v. FALP, Award of 24 January 2006, para. 3; CAS 2004/A/748, ROC & Ekimov
v. IOC, USOC & Hamilton, Award of 27 June 2006, para. 6.
23 Beloff/Netzle/Haas, in Lewis/Taylor, para. E3.50.
24 The validity of the arbitration agreement must be examined separately from the validity of the
main contract (principle of separability), cf. Art. 178(3) PILS and Art. 357(2) ZPO stating that
the validity of an arbitration agreement may not be challenged on the grounds that the main
contract between the parties is not valid.
25 Cf. Art. 177(1) PILS and Art. 354 ZPO. According to Art. 177(1) PILS all pecuniary claims are
arbitrable. In general, the pecuniary nature of a claim is interpreted rather liberally (including
disciplinary matters, BGer 4P.172/2006, para. 3.2), Girsberger/Voser, 2016, para. 1924. It is
common ground among legal scholars that the rules on arbitrability belong to the mandatory
rules of the applicable lex arbitri, cf. Berger/Kellerhals, paras. 208 et seq.; as all CAS arbitrations
have their seat in Switzerland, arbitrability is exclusively governed by the Swiss lex arbitri. For
details regarding objective arbitrability see Rigozzi, ASA Bull. 2003, pp. 501–537.
26 This requirement is of particular importance with regard to athletes who are under age.
27 Regarding these requirements cf. Kohler-Kaufmann/Rigozzi, para. 5.01; Berger/Kellerhals,
paras. 344 et seq.; Girsberger/Voser, 2016, paras. 274 et seq.
Article R27 CAS Code – Noth/Haas 1437

resolution before an arbitral tribunal.28 The examination of the Panel concerning its
jurisdiction is not restricted by the “theory of double relevancy”.29 The Swiss Federal
Supreme Court has explicitly stated that this theory, which limits a court’s scope of
review, is not applicable in the context of arbitration.30

2 Essentialia Negotii of an Arbitration Agreement

In an agreement establishing the jurisdiction of the CAS the parties need to express 10
a mutual assent to submitting any disputes between them to the CAS.31 Thus, the
essential elements (essentialia negotii) of such an agreement are the following:32 (i)
It has to unambiguously mention that the parties wish their disputes to be settled
by arbitration, and (ii) it has to define the scope of the disputes to be submitted to
arbitration, either by specifying the disputes or by generally referring any dispute in
connection with a particular relationship to arbitration. Furthermore, the arbitration
agreement has to refer to the CAS as the competent court.33 Whether the above
conditions are fulfilled must be established according to the conflict of law provision
in Art. 178(2) PILS, which deals with the substantive validity of the arbitration
agreement. Inasfar as Swiss law applies the contents of the agreement has to be
determined by interpretation.34 According thereto, the arbitral tribunal must first
determine the real intent of the parties (Art. 18 para. 1 CO). If it is not possible to
establish such a real and common intent, the agreement is to be construed objectively,
according to the so-called principle of mutual trust, namely to identify the meaning
that the parties could and should give, according to the rules of good faith, to their
mutual declarations of intention.35 In addition to the minimum requirement in terms
of content, the arbitration agreement should preferably also govern the language
of the arbitration as well as the number of arbitrators and the procedure for their
appointment.36

28 Berger/Kellerhals, para. 494; Girsberger/Voser, 2016, paras. 494 et seq.; Kaufmann-Kohler/

Rigozzi, para. 3.32.
29 Principle according to which whenever the decision on jurisdiction/admissibility of the claim
pre-judges the outcome of the dispute on the merits, the full legal review of the doubly relevant
facts must be performed at the stage of the decision on the merits only, BGE 122 II 252; BGE
119 II 66, para. 2a.
30 BGE 131 III 153, para. 5.1.
31 Cf. Art. 178(2) PILS; BGer. 4P.253/2003 para. 5.3; BGer. 4A_548/2009 para. 4.2.2. The lack
of an athlete’s consent does not per se invalidate an arbitration agreement that results from
the athlete’s participation in sporting activities, BGE 133 III 235 (Canas v. ATP) para. 4.3.2.3;
regarding arbitration agreements by reference, see also the following paragraph and Art. R47,
paras. 26–29 below.
32 Cf. BGE 129 III 675, para. 2.3; BGer 4A_246/2011, para. 2.1 et seq.; CAS 2015/A/3959, CD
Universidad Católica & Cruzados SADP v. Genoa Cricket and Football Club, Award of 27 November
2015, para. 97.
33 Cf. BGer. 4P.253/2003 para. 5.1; BGE 130 III 66 para. 3.1; cf. also Mavromati, CAS Bull. 2011/1,
p. 33. With regard to the form requirements concerning the essentialia negotii see the following
paragraph.
34 BGE 130 III 66, para. 3.2; Poudret/Besson, para. 304.
35 BGE 130 III 66, para. 3.2; BSK-IPRG/Gränicher, Art. 178 para. 52a; Mavromati/Reeb, Art. R27,
para. 69; CAS 2015/A/3959, CD Universidad Católica & Cruzados SADP v. Genoa Cricket and
Football Club, Award of 27 November 2015, para. 95.
36 Cf. Berger/Kellerhals, para. 306; Kaufmann-Kohler/Rigozzi, para. 3.24.
 1438 Arbitration in Switzerland – The Practitioner’s Guide

a Referral to the CAS as Competent Court

11 Under Swiss law, the parties are presumed to choose arbitration as such and not
because of the identity of the arbitrator. Hence, the identity of the arbitrator is
generally not considered an essential element of an arbitration agreement. Instead,
it suffices that the arbitral tribunal is determinable.37 In cases in which the CAS
is not explicitly mentioned in the arbitration agreement, or where an institution
is mentioned that will not or cannot exercise arbitral functions, it may become
necessary to interpret the arbitration agreement in order to assess whether or not
the parties wished to confer jurisdiction to the CAS. The Swiss Federal Supreme
Court has held that a clause providing that the “competent instance in case of a
dispute concerning this Agreement is the FIFA Commission, or the UEFA Commis-
sion, which will have to decide the dispute that could arise between the club and the
agent” ultimately confers jurisdiction to the CAS.38 The Swiss Federal Supreme Court
reasoned as follows: “Without breaching federal law the CAS found that the Parties
wanted to submit their dispute to an arbitral tribunal sitting in Switzerland, which
would know sport law particularly well. The designation of FIFA as well as UEFA
suggests that the Parties wanted to have a sport body decide their possible disputes
under the transfer contract, which would be familiar with transfers in the business
of international football. It must be noticed in particular that the CAS can review
FIFA decisions concerning the transfer of players on appeal and the Appellant itself
acknowledges that an appeal to the CAS would have been allowed against the decision
of the FIFA Committee for the Status of Players if it had accepted jurisdiction in the
case at hand. On the basis of these circumstances it must be assumed that the Parties
would have submitted the possible disputes arising from their transfer agreement […]
to the CAS, which regularly addresses transfers of football players, had they known
that the bodies mentioned in article 4 would not have jurisdiction.” Similarly, a CAS
Panel found that a clause stating that “In case of litigation of the Contract, the case
shall be submitted to CFA or FIFA for arbitration” conferred jurisdiction to the CAS.39
Of course, all these problems can be avoided from the outset if the parties use the
standard arbitration clause, which can be found in the appendices of the CAS Code
as well as on the CAS website.40

b Consent to Arbitrate

12 As a mandatory requirement of an arbitration agreement the parties need to unam-

biguously express the wish that their disputes be settled by arbitration and, thus,

37 BGer 129 III 675 para. 2.3; BGer 4A_246/2011 paras. 2.1 et seq.; BSK-IPRG-Gränicher, Art. 178
para. 30; Berger/Kellerhals, para. 285; cf. also CAS 2015/A/3959, CD Universidad Católica &
Cruzados SADP v. Genoa Cricket and Football Club, Award of 27 November 2015, para. 99.
38 BGer 4A_246/2011, para. 2.3.3; see also Mavromati/Reeb, Art. R27, para. 41.
39 CAS 2015/A/3910, Ana Kuže v. Tianjin TEDA FC, Award of 20 November 2015, paras. 82 et seq.;
see also the case CAS 2015/A/3959 CD Universidad Católica & Cruzados SADP v. Genoa Cricket
and Football Club, Award of 27 November 2015, where the following clause was contained in the
contract: ”The parties agree that any difficulty arising among them because of the application,
performance, default, validity, invalidity, interpretation or other difficulty arising herefrom shall
be resolved by the Fédération Internationale de Football Association (FIFA) as an arbitrator ex
aequo et bono or amiable compositeur. There shall be no remedies against the decision thereof
and the parties undertake to abide by the ruling rendered by such association, to which they
grant due competence.”
40 Mavromati/Reeb, Art. R27, para. 37.
Article R27 CAS Code – Noth/Haas 1439

to the exclusion of state courts.41 According to Art. R27(1), second sentence, such
wish may be expressed either in the form of an arbitration clause contained in a
contract or in regulations, or in the form of a later arbitration agreement (ordinary
arbitration proceedings); such an agreement may further exist based on statutes,42
regulations or a specific agreement to the effect that any appeal against a decision by
sports-related bodies is to be brought before the CAS (appeal arbitration proceedings).
With regard to whether there is a will of the parties to arbitrate, the Swiss Federal 13
Supreme Court has repeatedly stated that, as a principle, it applies a “benevolent”
standard in sports arbitration, in order to encourage the speedy resolution of disputes
by specialized arbitral tribunals presenting sufficient guarantees of independence
and impartiality, such as the CAS.43 However, it should be noted that the same
“benevolence” does not apply to sports arbitration in general. So far the Swiss
Federal Supreme Court has only expressed “benevolence” in two case groups. One
case group concerns the arbitration clause by (general) reference.44 The central issue
here is, whether or not there is (unambiguous) consent between the parties to resort
to arbitration.45 This question must be resolved through the principle of good faith.46
According to the Swiss Federal Supreme Court, arbitration is the typical dispute
resolution mechanism of the sports industry, which must be taken into account when
determining the will of the parties.47 Accordingly, the Swiss Federal Supreme Court
has found that “a general reference to the FIFA Rules [in the Statutes of a National
Federation] and thus to the appeal rights of FIFA and WADA contained in the FIFA
Statutes [to the CAS] is sufficient to establish the jurisdiction of the CAS …”.48 Thus,
the threshold to assume consent to arbitrate in a sports context is particularly low
with regard to arbitration clauses by reference.49
The other case group where the Swiss Federal Supreme Court has shown “benevo- 14
lence” deals with so-called “forced arbitration clauses”.50 It is a characteristic feature
of sports arbitration that one of the parties to the arbitration agreement (e.g. a club
or an athlete) has no free choice whether to accept the arbitration clause or not.
Instead, due to the monopolistic structure within sport, the contracting party may
only choose to submit itself to arbitration or else not to participate in a particular
sport altogether. This may be a particularly hard choice for an athlete who exercises
his or her sport professionally. However, the Swiss Federal Supreme Court has found
that notwithstanding the unequal bargaining power between the parties in such cases
there is – in a sports context – still sufficient “consent” to arbitrate, provided that

41 BGE 130 III 66, para. 3.1: “Another general condition for an arbitration agreement is the clarity
and certainty with respect to the private jurisdiction …”; see also Art. 178 paras. 50 et seq.;
Berger/Kellerhals, para. 289.
42 For a typical example of such statutes see, e.g., the FIFA Statutes, Arts. 66–68, UEFA Statutes,
Arts. 60–63 and IOC Statutes, Art. 61.
43 BGer 4A_428/2011, para. 3.2.3, BGer. 4A_246/2011 para. 2.2.2; BGer. 4A_548/2009 para. 4.1;
BGer. 4A_460/2008 para. 6.2; Rigozzi, paras. 832 et seq.
44 Mavromati/Reeb, Art. R27, para. 50 et seq.
45 See Art. 178 PILS paras. 61 et seq. ; Berger/Kellerhals, paras. 455 et seq.
46 See Art. 178 PILS para. 61; Mavromati/Reeb, Art. R27, para. 43.
47 BGer 4A_428/2011, para. 3.2.3: “In other words, following the conclusions of another specialist
in this area of law, there is in essence no elite sport without consent to arbitrate.”
48 BGer 4A_60/2008, para. 6.2.
49 Haas, Zwangsschiedsgerichtsbarkeit im Sport und EMRK, Bull ASA 4/2014, 707, 709.
50 Cf. Haas, Zwangsschiedsgerichtsbarkeit im Sport und EMRK, Bull ASA 4/2014, 707, 711 et seq.
 1440 Arbitration in Switzerland – The Practitioner’s Guide

the arbitral institution is independent from the parties.51 The Swiss Federal Supreme
Court justifies its reasoning by a balancing of the parties’ interests and finds that the
advantages of sports arbitration are in the parties’ interest of administering justice.

c Defined Scope of Dispute

15 The arbitration agreement must specify the subject-matter of the dispute, in

terms of either the object or the legal relationship in dispute.52 It follows from this
prerequisite that global submissions to arbitration such as “all legal disputes which
arise out of current and future legal relationships” are not permissible. Moreover, it
also follows that it must be determinable and foreseeable whether or not a certain
dispute is covered by an arbitration clause. Various problems in this respect may
arise in connection with Art. 61(1) of the Olympic Charter (OC), which reads as
follows: “The decisions of the IOC are final. Any dispute relating to their application
or interpretation may be resolved solely by the IOC Executive Board and, in certain
cases, by arbitration before the Court of Arbitration for Sport (CAS).” The meaning
of the phrase “in certain cases” is hard to construe. The provision seems to convey
that the decisions of the IOC are either “final” or that they may be resolved – inter
alia – by the CAS. This is already a misconception, because all disputes are resolved
at a final level either before the CAS or by a state court. In one way or the other,
there must be access to justice for persons concerned by an IOC decision. In essence,
Rule 61(1) OC thus regulates whether a dispute over an IOC decision ends up before
the CAS or before state courts. Furthermore, there is no obvious understanding of
the phrase “certain cases”. In particular, it is unclear what aspect determines the
competent forum: is it the “nature” of the decision, the sporting body issuing it,
or rather the importance or size of the dispute? Certainly, Rule 61(1) OC cannot
be interpreted to mean that either party – the IOC or its opponent in a particular
dispute – may unilaterally choose whether to bring the case before the CAS. Rule
61(1) OC fails to identify the disputes that qualify as a “certain case” subject to CAS
review. Since, therefore, the disputes covered by the arbitration clause cannot be
determined, the clause does not qualify as a valid arbitration clause.53

3 Formal Requirements

16 The CAS Code does not set out whether an arbitration agreement needs to be in
writing, or whether another form, such as an oral agreement, would be accepted
under CAS rules. In WADA v. NSAM & Cheah & Ng & Masitah,54 the Panel held that
“an agreement to arbitrate may be concluded explicitly or tacitly and may result from
the content of the pleadings submitted by the parties”. In any event, the validity
of an arbitration agreement must be determined in accordance with Art. 178(1)

51 BGE 133 III 235, para. 4.3.2.2; see also Haas, Zwangsschiedsgerichtsbarkeit im Sport und EMRK,
ASA Bull. 4/2014, 707 et seq.; Beloff/Netzle/Haas, in Lewis/Taylor, para. E3.47; Girsberger/
Voser, 2016, para. 1928; contra Lukomski, Int Sports Law J 2013, 60 et seq.
52 See Art. 178 PILS paras. 48, 51 seq.
53 CAS 2011/A/2576, Curacao Sport and Olympic Federation v. IOC, Award of 31 August 2012,
paras. 6.15 et seq.
54 CAS 2007/A/1395, WADA v. NSAM & Cheah & Ng & Masitah, Award of 31 March 2008, para.
51.
Article R27 CAS Code – Noth/Haas 1441

PILS55 (international arbitration) and Art. 358 ZPO (domestic arbitration), which
require an agreement in writing. Under the PILS, the understanding of the criterion
“written form” is generally very broad, meaning that any kind of written expression
of the parties will be capable of meeting the requirements of Art. 178(1) PILS. The
formal requirements in Art. 178(1) PILS only apply to the essential elements of the
arbitration agreement (essentialia negotii, supra para. 10).56
The parties’ written statements may be expressed in one or in several documents.57 17
For instance, an arbitration agreement may result from an exchange of letters between
parties.58 No personal signature is required in order to conform to the written form
requirement under the PILS.59 Even a simple reference to a document containing an
arbitration clause may suffice to assume the existence of a valid arbitration agree-
ment (arbitration agreement by reference).60 An oral agreement satisfies the form
requirements under the PILS only if it is subsequently confirmed in writing.61 The
form requirement includes all essential elements of the arbitration agreement.62 If the
CAS is referred to by an incorrect or imprecise denomination or description (“falsa
demonstration non nocet”), this does not invalidate the arbitration agreement.63
The Swiss Federal Supreme Court has furthermore highlighted – not only in the 18
context of sports arbitration – that in certain circumstances the principle of good
faith can substitute the formal requirements provided for in Art. 178(1) PILS.64 This
is particularly true in cases in which non-signatories are bound to an arbitration
agreement (e.g. universal successor,65 individual successor, contract to the benefit
of third party,66 etc.).67 For the non-signatory to be thus bound it is sufficient, in
this kind of situations, that the arbitration agreement comply with Art. 178(1) PILS
between the contracting parties only.68 The principle of good faith may substitute the
formal requirements also in other instances,69 notably, e.g., if the appellant sends its

55 This provision is a substantive rule of Swiss private international law and a mandatory provision
of the Swiss lex arbitri, Berger/Kellerhals, para. 418 seq.
56 Girsberger/Voser, 2016, para. 339.
57 Mavromati, CAS Bull. 2011/1, p. 33. Cf. CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/
FC Sion, Award of 31 January 2012, para. 241, where the statutes in conjunction with an entry
form for a supranational league were considered as a binding arbitration clause.
58 CAS 2008/O/1483, AHF, KzHF, KHA v. IHF, Award of 20 May 2008, para. 4.
59 Girsberger/Voser, 2016, para. 341; Berger/Kellerhals, paras. 422; Mavromati/Reeb, Art. R27,
para. 30.
60 BGer. 4P.230/2000 para. 2a; BGer. 4P.253/2003 para. 5; BGer. 4A_460/2008 para. 6.2; regarding
the well-known issues of the validity of arbitration agreements by reference, cf. Netzle, ASA
Special Series no. 11, pp. 50–53; for examples of corresponding CAS jurisprudence, cf., e.g.,
Mavromati, CAS Bull. 2011/1, pp. 36–37.
61 Berger/Kellerhals, para. 426; it is, however, disputed whether the confirmation must be made
by both parties or whether unilateral confirmation suffices, Girsberger/Voser, 2016, paras. 343
seq; cf. also Kaufmann-Kohler/Rigozzi, para. 3.71.
62 Kaufmann-Kohler/Rigozzi, para. 3.58.
63 BGer. 4A_246/2011 para. 2.2.3 and 2.3, where the further context of the arbitration agreement
allowed to interpret the “FIFA Commission, or the UEFA Commission” as the CAS.
64 BGer 4A_428, para. 3.2.3; BGE 129 III 727, para. 5.3.1.
65 CAS 2015/A/3910, Ana Kuže v. Tianjin TEDA FC, Award of 20 November 2015, para. 97; Berger/
Kellerhals, para. 540; BSK-IPRG-Gränicher, Art. 178 para. 76.
66 BGer 4A_627/2011, para. 3.2.
67 Berger/Kellerhals, paras. 537 et seq.
68 See Berger/Kellerhals, para. 539.
69 Mavromati/Reeb, Art. R27, paras. 46 et seq.
 1442 Arbitration in Switzerland – The Practitioner’s Guide

statement of appeal to the CAS within the time limit.70 Likewise, filing a cross-appeal
is deemed an acknowledgement of CAS jurisdiction. The jurisdiction of the CAS
is also established by signing the Order of Procedure stating that the CAS shall be
competent to decide on the case.71 However, a party appointing an arbitrator is not
prevented from objecting to CAS jurisdiction provided the party expressly reserves
such a right. A decision of a federation stating that this decision may be appealed
before the CAS within 20 days of receiving notification is considered an offer to
conclude an ad-hoc arbitration agreement.72 Participation in a competition organized
by a federation which in its regulations stipulates that any dispute shall be resolved
by arbitration (= offer in writing) was considered an acceptance of the offer.73

4 Sports-related Disputes

19 Only sports-related disputes are covered by the CAS Code.74 Such disputes must be of
a private-law nature.75 It is for the Court to assess whether a dispute is sports-related
or not.76 The IOC understanding of the concept of sports reflects the core notion
of sports in the meaning of Art. R27.77 However, sports that are not recognized by
the IOC may also be covered by Art. R27. Difficult questions may arise with regard
to leisure and entertainment activities such as bungee jumping, mental exercise
competitions, e-games or card games.
20 In general, the CAS has a very broad understanding of sports and sports-relations.78
Chess is also considered a sport in the meaning of the CAS Code.79 The CAS also
affirmed a sports-relation in a case in which an architect was commissioned by a
boats company to participate in the development of sports boats;80 whether the CAS
is indeed the right platform for such purely commercial matters has been questioned
by some authors.81

5 Lack of Funds

21 Even though the costs of an arbitration proceeding before the CAS are fairly low
compared to commercial arbitration, the question may arise whether or not an
arbitration agreement is inoperative from the perspective of an athlete because of lack
of funds. In legal literature some advocate a right for a party’s unilateral termination

70 CAS 2002/O/422, Besiktas v. FIFA & SC Freiburg, Award of 10 March 2003, para. 25.
71 Oschütz, p. 274; Netzle, ASA Special Series no. 11, p. 53.
72 Cf., e.g., CAS 2003/O/482, Ortega v. Fenerbahce & FIFA, Award of 5 November 2003, para. 4;
CAS 2003/O/486, Fulham FC v. Olympique Lyonnais, Award of 15 September 2003, para. 3.
73 CAS 2009/A/1910, Telecom Egypt Club v. EFA, Award of 9 September 2010, para. 9.
74 Art. R27(2).
75 Oschütz, p. 83.
76 See in detail Mavromati/Reeb, Art. R27, paras. 88 et seq.
77 Cf. Rochat, ASA Special Series no. 11, p. 12 who considers the criteria of IOC’s understanding
of the notion of sports as relevant; similar Oschütz, p. 84.
78 Cf. McLaren, p. 37, the topics that the CAS addresses have constantly expanded to include a
wider array of issues and sports; Sternheimer/Le Lay, CAS Bull. 2012/1, pp. 49, 52; cf. also
Girsberger/Voser, 2016, para. 1923.
79 Cf. CAS 2004/O/657 – unpublished decision regarding a chess player.
80 CAS 92/O/81, L v. Y. SA, Award of 30 November 1992, para. 3.
81 E.g., Rigozzi, paras. 933 and 934; in support of CAS Sternheimer/Le Lay, CAS Bull. 2012/1, p.
56.
Article R27 CAS Code – Noth/Haas 1443

of the arbitration agreement if it has proven to be unable to pay the arbitration costs,
in order to avoid denial of access to justice for such party.82 Unlike in state court
proceedings there is, in principle, no (mandatory) legal aid before arbitral tribunals
(either by direct application of the respective rules in civil procedure or following
from the principle of equal treatment of the parties or on ordre public grounds).83
In order to ensure that lack of funds does not jeopardize access to justice, the CAS
Code provides for legal aid. According to Art. S6(9) ICAS is responsible for creating
“a legal aid fund to facilitate access to CAS arbitration for natural persons without
sufficient financial means”. The guidelines on legal aid84 and the legal aid application
form can be downloaded from the CAS website.85 In the majority of the requests
filed, the applicant is granted legal aid in some form or another.86

C Categories of Proceedings Before the CAS

Article R27(1) states that the CAS Code differentiates between two types of arbitra- 22
tion proceedings, i.e., ordinary arbitration proceedings, which are governed by
Arts. R38-R46, and appeal arbitration proceedings, which in turn are governed by
Arts. R47-R59.87 Ordinary arbitration proceedings are – in most cases – similar to
commercial arbitration;88 whereas appeal arbitration proceedings are of a different,
sports-specific nature. However, also ordinary arbitration proceedings may be very
sport specific. For instance, Art. 8.5 of the World Anti-Doping Code provides that
an anti-doping rule violation asserted against an athlete may, with the consent of
the athlete, the anti-doping organization with results management responsibility,
WADA and any other anti-doping organization that would have a right to appeal
a first instance hearing decision, be heard directly at CAS with no requirement for
a prior decision by the sports body. Such first instance CAS proceedings in doping
matters would sometimes be conducted as ordinary arbitration89 sometimes as
appeals arbitration procedures.90 In recent years, most CAS proceedings have been
appeal proceedings.91
Arbitration proceedings submitted to the CAS are assigned by the CAS Court Office 23
to the appropriate division.92 The assignment is made on the basis of the Request
for Arbitration / Statement of Appeal, i.e., at a very early stage of the proceedings
in which the Respondent has not yet been heard.93 Thus, the assignment is made
depending on the subject matter in dispute (in particular the requests) as submitted

82 Berger/Kellerhals, para. 633; see also Kaufmann-Kohler/Rigozzi, para. 3.187; left undecided
in BGer 4A_178/2014, para. 4.
83 BGer 4A_178/2014, para. 4.
84 http://www.tas-cas.org/fileadmin/user_upload/Legal_Aid_Rules_2016_ENG_.pdf.
85 http://www.tas-cas.org/fileadmin/user_upload/Legal20Aid20Form20_English_.pdf.
86 See the statistics in Mavromati/Reeb, para. VI C.
87 Cf. also Arts. S3(2) and S20(1).
88 Oschütz, p. 50; Kaufmann-Kohler/Bärtsch, p. 85; Sternheimer/Le Lay, CAS Bull. 2012/1, p. 52.
89 See for such an example CAS 2015/O/4128, IAAF v. Rita Jeptoo.
90 See for such an example CAS 2016/A/4707, Alex Schwazer v. IAAF, NADO ITALIA, FIDAL &
WADA.
91 In the year 2013, 58 CAS cases concerned ordinary proceedings and 349 CAS cases appeal
proceedings, cf. <http://www.tas-cas.org/fileadmin/user_upload/CAS_Statistics_2013.pdf.>.
92 Art. S20(2), first sentence.
93 Haas/Köppel, Abwehransprüche des Sportlers gegen (angeblich rechtswidriges) Verbandsver-
halten vor dem Court of Arbitration for Sport (CAS/TAS), in jusletter 16 July 2012, paras. 31
seq.
1444 Arbitration in Switzerland – The Practitioner’s Guide

to the CAS by the Appellant/Claimant.94 If the subject matter (“Streitgegenstand”)

concerns an appeal against a decision of a sports organization, then the case will
be assigned to the Appeals Arbitration Division, unless the validity/lawfulness of
the contested decision is a purely preliminary question (“Vorfrage”) of the dispute.
The term “appeal” should be construed widely as it covers declaratory relief as well
as modificatory relief (“Gestaltungsklagen”).95 Thus, in order for the matter to be
assigned to the Appeals Arbitration Division, the appeal against the decision must
be the core of the dispute.96 This will not apply, for instance, if the Claimant files
a request for damages based on the alleged unlawfulness of a decision issued by a
sports organization. If the Claimant / Appellant files several requests pertaining to
both divisions, the CAS Court Office may assign all claims to the Appeals Arbitration
Division for reasons of procedural efficiency, provided that there is a factual or legal
connection between the various claims. As a matter of principle, the assignment of
the CAS Court Office may not be contested by the parties.97 However, the parties may
ask the CAS Court Office to reconsider its decision and the Court Office may agree to
do so.98 If both parties wish and agree to submit their dispute to the other Division,
the CAS Court Office should modify its decision in any event.99 Furthermore, in the
event of a change of circumstances during the procedure, i.e. after the commence-
ment of the proceedings, the CAS Court Office may re-assign the arbitration to the
other division.100 However, there is no “change of circumstances”, if – in the course
of the appeal proceedings – the Panel comes to the conclusion that based on the
factual submissions of the parties there is in fact no decision that the Appellant is
entitled to contest. In such circumstances the Panel may neither reject the appeal
for lack of jurisdiction,101 nor dismiss the appeal as inadmissible.102 Since the CAS
Court Office’s assignment of the case to either of the two divisions is binding (on
the parties and also on the arbitral tribunal)103 and includes the applicability of the
respective procedural rules, the Panel must dismiss the appeal on the merits.104

94 Haas/Köppel, in jusletter 16 July 2012, para. 22.

95 Haas/Köppel, in jusletter 16 July 2012, para. 35.
96 Haas/Köppel, in jusletter 16 July 2012, para. 35.
97 Art. S20(2), second sentence; cf. CAS 2004/A/748, ROC & Ekimov v. IOC, USOC & Hamilton,
Award of 27 June 2006, para. 2.
98 Kaufmann-Kohler/Bärtsch, pp. 74–75.
99 Kaufmann-Kohler/Bärtsch, p. 75.
100 Art. S20(2), third sentence.
101 Haas/Köppel, in jusletter 16 July 2012, para. 30.
102 Haas/Köppel, in jusletter 16 July 2012, paras. 31 et seq.
103 CAS 2004/A/748, Russian Olympic Committee (ROC) & Viatcheslav Ekimov v. International
Olympic Committee (IOC), United States Olympic Committee (USOC) & Tyler Hamilton, Award
of 27 June 2006, para. 2: “The Panel notes that, pursuant to Article S20 of the Code, the decision
of the CAS Court Office as to the assignment of a case to either CAS Division is administrative
in nature; no arguments are heard, no reasons are given, no appeal is allowed. The Panel must
thus disregard the arguments put forward by the parties with respect to the characterization
of this arbitration as an “appeal” or an “ordinary” arbitration. As the Court Office assigned
this case to the Appeals Arbitration Division, the Panel must follow the set of Code provisions
applicable to the appeal arbitration procedure.”
104 See CAS 2014/A/3744&3766, Nigerian Football Federation v. FIFA, Award of 18 May 2015, para.
196.
 1445

Article R28: Seat

The seat of CAS and of each Arbitration Panel (“Panel”) is Lausanne, Switzerland.
However, should circumstances so warrant, and after consultation with all parties,
the President of the Panel may decide to hold a hearing in another place and may
issue the appropriate directions related to such hearing.

I PURPOSE OF THE PROVISION

The purpose of Art. R28 is to establish rules for determining both the seat of arbitra- 1
tion proceedings at the CAS and the location for the conduct of such proceedings.1

II CONTENT OF THE PROVISION

A Seat

According to Art. R28, first sentence, all CAS arbitrations have their seat in Lausanne, 2
Switzerland.2 Unlike the rules of most other arbitral institutions,3 the CAS Code does
not provide for autonomy of the parties to choose the seat of their arbitration. This
provision is mandatory.4 This rule also applies to the ad-hoc Division at Olympic
Games.5 The reason for this is that in order to establish uniform applicability of the
sports-related rules and regulations, there is a need for a single lex arbitri to apply
in all cases, since the lex arbitri determines the competent courts with jurisdiction
in relation to the arbitration.6
In order to facilitate access to CAS in North America and Oceania the ICAS, in 1996, 3
created two decentralized offices, one in Denver, which has since been moved to
New York, and one in Sydney.7 However, also for decentralized proceedings, the
seat of the arbitration is in Lausanne, with only the management of the proceedings
taking place abroad.8

B Location for the Conduct of Proceedings

It is common that hearings, consultations and/or other meetings are held at conveni- 4
ent places other than the seat. Thus, the fact that the CAS Code establishes the seat in
Lausanne in no way obliges the Panel to hold the hearing or deliberate in Lausanne.9
As a principle, such convenient places may be within or outside Switzerland. The

1 Mavromati/Reeb, Art. R28, paras. 1, 4.

2 Cf. also Art. S1(3).
3 Cf references with Girsberger/Voser, 2016, para. 1931.
4 Rigozzi, paras. 408 and 430; Oschütz, pp. 79–80; Mangan, ArbInt. 2009, p. 594; Reeb, Role and
Functions, p. 37.
5 Art. 7 Arbitration Rules for the Olympic Games; Rigozzi/Hochuli, Jusletter 27 November 2006,
para. 1.
6 Girsberger/Voser, 2016, para. 1931.
7 Reeb, Role and Functions, p. 34.
8 Mavromati/Reeb, Art. R28, para. 18. This was also recognized by the New South Wales Court
of Appeal (Australia), CA 40650/00, in Digest of CAS Awards II, pp. 783 et seq.
9 Mavromati/Reeb, Art. R28, para. 17.
 1446 Arbitration in Switzerland – The Practitioner’s Guide

authority to determine such place lies with the President of the Panel.10 However,
decisions must not be made arbitrarily or based on personal preferences unrelated to
the arbitration. The choice of location ought to be justified by the circumstances of
the case such as the residence/seat of the parties, arbitrators, witnesses and experts,
or legal or factual travel restrictions affecting the parties; the main priority must
be to ensure that the proceedings can be carried out efficiently and economically.
Furthermore, such a decision should consider the risk that conducting the proceed-
ings in different legal systems may give rise to inconvenient conflict-of-law situations.
5 According to the express wording of this provision, the parties must be consulted
before settling on a location. The parties’ agreement to hold hearings at specific places
or to limit the President’s discretion to some specific places should be respected, as
a principle. Barring such an agreement by both parties, hearings may even be held
at places to which one of the parties explicitly objects (provided, of course, that the
respective choice is justified by the circumstances of the case).
6 In the event of hearings being held at places other than the seat of the CAS, the
President may issue appropriate directions concerning the hearings,11 particularly
with regard to the place and time schedule.

C Consequences of the Seat

7 Article R28 governing the seat of arbitration has some major legal consequences:12
First of all, the seat of arbitration determines the lex arbitri. As the seat of CAS
arbitrations is always in Switzerland, Swiss arbitration law invariably applies to
CAS proceedings.13 Chapter 12 of the PILS (international arbitration) applies in all
CAS cases where at least one party has its domicile or habitual residence outside
Switzerland, provided the parties have not excluded its application and opted for the
application of part 3 of the ZPO.14 If no party has its domicile or habitual residence
outside Switzerland, Part 3 of the ZPO (domestic arbitration) applies, unless the
parties have excluded its applicability and agreed that Chapter 12 of the PILS shall
apply instead.15
8 Second, the seat establishes the jurisdiction of local state courts to review the award.
Hence, the judicial control of all CAS awards falls within the exclusive jurisdiction
of the Swiss Federal Supreme Court.16 In international arbitration,17 such control
is limited to the exhaustive list of grounds in Art. 190(2) PILS.18 This also applies

10 Art. R28, second sentence.

11 Art. R28 at the end.
12 Kaufmann-Kohler/Rigozzi, para. 2.23; Kaufmann-Kohler/Bärtsch, pp. 78–81; Girsberger/Voser,
2016, paras. 597 et seq.; cf. also Rochat/Cuendet, pp. 60–61 and McLaren, p. 38 emphasizing
the first two consequences mentioned here.
13 Rigozzi/Hochuli, Jusletter 27 November 2006, para. 2; Mavromati/Reeb, Art. R28, para. 21;
Poudret/Besson, paras. 134–135.
14 Art. 176(2) PILS.
15 Art. 353(2) ZPO.
16 Art. 191 PILS; see Mavromati/Reeb, Art. R28, para. 22.
17 For domestic arbitration cf. Art. 393 ZPO.
18 Cf. Arroyo, above commentary on Art. 190 PILS (Chapter 2), paras. 3–5. For an overview on
challenged awards of the CAS, see, e.g., Rigozzi, JIDS 2010, pp. 217–265; Netzle, CAS Bull.
2011/2, pp. 19–26.
Article R28 CAS Code – Noth/Haas 1447

to cases in which the challenged decision has been rendered abroad and to cases
where the proceedings have taken place abroad.19
Third, the seat of the arbitration determines access to local state courts for judicial 9
assistance in support of the arbitration.20
Fourth, the seat of the arbitration determines the “nationality” of the arbitral award 10
pursuant to the New York Convention.21
Finally, the seat of the arbitration has also an impact on the jurisdiction of the Panel 11
to issue provisional measures,22 since Art. 183(1) PILS provide that “unless the parties
have agreed otherwise, the arbitral tribunal may enter provisional or conservatory
orders at the request of one party”.

19 Rigozzi, para. 1299.

20 Although available, aid by the state courts is rarely resorted to in practice, Kaufmann-Kohler/
Bärtsch, p. 80.
21 Mavromati/Reeb, Art. R28, paras. 28 et seq.
22 See Mavromati/Reeb, Art. R28, para. 34; for further details see commentary to R37.
 1448

Article R29: Language

The CAS working languages are French and English. In the absence of agreement
between the parties, the President of the Panel or, if she/he has not yet been
appointed, the President of the relevant Division, shall select one of these two lan-
guages as the language of the arbitration at the outset of the procedure, taking into
account all relevant circumstances. Thereafter, the proceedings shall be conducted
exclusively in that language, unless the parties and the Panel agree otherwise.
The parties may request that a language other than French or English be selected,
provided that the Panel and the CAS Court Office agree. If agreed, the CAS Court
Office determines with the Panel the conditions related to the choice of the language;
the Panel may order that the parties bear all or part of the costs of translation and
interpretation. If a hearing is to be held, the Panel may allow a party to use a
language other than that chosen for the arbitration, on condition that it provides,
at its own cost, interpretation into and from the official language of the arbitration.
The Panel or, prior to the constitution of the Panel, the Division President may
order that all documents submitted in languages other than that of the proceedings
be filed together with a certified translation in the language of the proceedings.

I PURPOSE OF THE PROVISION

1 The purpose of Art. R29 is to establish rules concerning the language of CAS
arbitration proceedings. In particular, it defines French and English as the official
working languages of the CAS1 and governs how the language in which arbitration
proceedings are conducted before the CAS must be determined. The provision was
amended in 2016. Para. 2 of Art. R29 now incorporates a standing practice at the CAS
according to which if “a hearing is to be held, the Panel may allow a party to use a
language other than that chosen for the arbitration, on condition that it provides, at
its own cost, interpretation into and from the official language of the arbitration.”
2 The choice of the language is important. It may impact on the costs of the proceed-
ings (e.g. costs of translations) and the conduct of the procedure in general, since
there might be links between the language determined and the legal traditions of a
certain involved legal system / country.2

II CONTENT OF THE PROVISION

A In General

3 Particularly in international sport arbitrations, where parties often have a different

cultural and linguistic background, establishing the language to be used in the
proceedings at the CAS is one of the key issues to be addressed at the very outset
of the arbitration.

1 See also Arts. R69 and S24 stating that the English and French texts of the CAS Code are
authentic and that in the event of any divergence, the French text shall prevail.
2 Mavromati/Reeb, Art. R29, para. 4.
Article R29 CAS Code – Noth/Haas 1449

Establishing the relevant language is primarily a matter for the parties, but where 4
they fail to settle on a language, the CAS shall do so. This principle is in line with
Art. 182(1)(2) PILS and Art. 373(1)(2) ZPO.

1 Decision by the Parties

Article R29 provides that, in principle, the parties may agree on the applicable 5
language. Where a language has not yet been chosen in the arbitration agreement,
the parties should agree on the applicable language at the earliest possible stage,
preferably before the appointment of the arbitrators, as an early choice of language
facilitates the selection of suitable arbitrators and counsels and avoids the need of
their subsequent replacement due to lack of language skills.3 Therefore, a request
for arbitration or a statement of appeal should, preferably, also address the question
of which language to use in the procedure before the CAS.
Neither the CAS Code nor Swiss law imposes specific requirements regarding the 6
parties’ agreement on the language of the proceedings. Since the language is a
procedural matter and not an essentialia of the arbitration agreement (see Art. R27
paras. 10 et seq.), Art. 178(1) PILS does not apply and the parties may conclude the
agreement in writing, orally or tacitly.
The parties may request that the CAS procedure be conducted either in one of the 7
CAS’ two working languages or in another language. The two working languages
are – according to Art. R29(1) – the traditional languages of the Olympic Movement,
i.e. French and English.4 If the parties agree on another language (than English or
French), such choice will become binding only with the consent of the Panel and the
CAS Court Office.5 In addition to English and French, CAS arbitration proceedings
have also been conducted in Spanish, German and Italian.6 The great majority of
arbitration proceedings at the CAS are, however, held in English.7 Additional costs
resulting from the choice of a non-working language are to be borne by the parties,
as a principle.8 In this respect Art. R29(2) provides that the “Panel may order that
the parties bear all or part of the costs of translation and interpretation”.
The choice of more than one language for the arbitration is not excluded under the 8
CAS Code. Hence, the parties may agree, for instance, that two or more languages
may be generally used in the proceedings or that the written submissions, oral
pleadings and/or examination of the witnesses shall be in different languages.9 In
any event, it is highly recommended to define a prevailing language for the event
of any version conflicts between the various languages.

3 Mavromati/Reeb, Art. R29, para. 2.

4 Mavromati/Reeb, Art. R29, para. 1.
5 Art. R29(2), first sentence; critical in this respect Crespo, in Rigozzi/Bernasconi. p. 35.
6 Mavromati/Reeb, Art. R29, para. 9.
7 Mavromati/Reeb, Art. R29, para. 7, see also the Annex IV B. It is worth noting that English is
not an official national language in Switzerland and that an appeal brief to the Swiss Supreme
Court must be submitted in one of Switzerland’s official languages, i.e., German, French, Italian
or Rumantsch Grischun, Art. 42(1) BGG and Art. 70(1) FC.
8 Cf. Art. R29(2), second sentence.
9 Mavromati/Reeb, Art. R29, para. 25. However, multilingual arbitration is not recommended if
it delays the procedure and increases its costs; this is mostly the case if two or more languages
are accepted without specific rules and restrictions or if the arbitrators do not have a good
command in both or all languages. Cf. also Mavromati, CAS Bull. 2012/1, p. 44.
 1450 Arbitration in Switzerland – The Practitioner’s Guide

2 Decision by the CAS

9 Where the parties are unable to agree on the language of the arbitration proceedings,
the competent President shall select one of the two official languages, taking into
account all “relevant circumstances”.10 Such decision will take the form of an “order
on language”11 and is not (separately) appealable to the Swiss Federal Supreme
Court.12 However, in extreme cases of arbitrariness the choice of language may
infringe on the principle of due process, or the parties’ right to be heard or their
right to equal treatment, all of which can constitute a ground for setting aside the
award rendered in the dispute.13
10 The relevant circumstances to be taken into account by the CAS include the national-
ity and language of the parties, the language previously used between the parties
(namely, the language of the contract), the language applied by the body that took
the appealed decision, the language in which an appeal has been filed, the language
of the law governing the merits, the place where the dispute has arisen, and the
language skills of the arbitrators (if the language is chosen after the arbitrators’
appointment) and those of other important people involved, such as witnesses.14
11 In any event, the principle of equal treatment of the parties must be respected.15
Therefore, the parties must have the opportunity to set out their point of view on
the issue of the language of the arbitration proceedings before the decision is taken.
The principle of equal treatment does not, however, require that each party has the
right to present its case in its own language.
12 According to the wording of this provision, the President of the Panel or, prior to his
appointment, the President of the relevant Division, shall select which of the two
working languages shall apply.16 It makes good sense that the CAS Code vests the
President of the relevant Division with the competence to decide on the language for
as long as the Panel has not been appointed. However, once the Panel is constituted, it
is preferable for the entire Panel and not only its President to decide on the language
of the procedure, given the importance of this issue throughout the proceeding.

B Meaning of the Relevant Language

13 Generally, the language chosen as described will be used for the entire proceed-
ings. This follows from the last sentence of Art. R29(1), according to which “the
proceedings shall be conducted exclusively in that language, unless the parties

10 Art. R29(1), second sentence. In the course of the 2013 revision, the English wording of this
provision was changed from “pertinent circumstances” into “relevant circumstances”; by con-
trast, the French version has remained unchanged and still states “pertinentes” circumstances;
according to the authors’ views, the recent change of the English wording is not of material
nature.
11 Mavromati/Reeb, Art. R29, para. 3.
12 Mavromati/Reeb, Art. R29, para. 16.
13 Mavromati/Reeb, Art. R29, para. 5.
14 Mavromati/Reeb, Art. R29, paras. 18, 20–24; see also Rochat/Cuendet, pp. 61–62; Mavromati,
CAS Bull. 2012/1, pp. 42–44 with reference to unpublished CAS jurisprudence; Lazareff,
Language, pp. 23–26. Further, cf. CAS 2009/A/2014, AMA v. RLVB & Iljo Keisse, Award of 6
July 2010, paras. 39–42.
15 Cf. Art. 182(3) PILS; Art. 373(4) ZPO.
16 Art. R29(1), second sentence.
Article R29 CAS Code – Noth/Haas 1451

and the Panel agree otherwise”. Consequently, all official documents, the parties’
submissions, exhibits, letters and correspondence with the CAS Court Office as
well as the conduct of the hearing shall be in the language chosen by the parties.17
As a principle, this rule also applies to the award to be rendered by the Panel. It is
rather evident that if the name of a party is being used in a translated version to
match the language of the proceedings, this does not affect or amend the original
claim provided there can be no doubt with respect to the identity of said party.18
The CAS Code is silent on what to do with written statements submitted in a language 14
other than the language of the proceedings as agreed by the parties or selected by
the CAS. According to CAS practice the filing of documents in a language other than
the language chosen will not be declared inadmissible automatically. Instead, the
CAS Court Office or the Panel will set a short deadline to file a translation of such a
submission.19 Denying such possibility could constitute excessive formalism, which
is forbidden by Swiss Constitution (Art. 29).20 However, in case the deadline is not
met, such a submission may be disregarded.
Oral statements made in a language other than the selected procedural language 15
must also be translated, unless the parties and the Panel accept the oral statement
as presented.

C Translation of Documents

In case certain documents have been submitted in the proceeding in a language 16

other than the agreed-upon language of the proceedings, the Panel (or, prior to the
constitution of the Panel, the Division President) may order that the documents
be submitted together with a “certified translation into the relevant language of
the proceedings” (Art. R29(3)). The Panel has the option, but not an obligation to
ask for a “certified translation”.21 It may also order that all documents submitted
in languages other than that of the arbitration proceedings be filed together with
a “loose” translation into the language of the proceedings.22 However, the Panel
may be inclined to order a “certified translation”, if the other party objects to the
filing of “loose translations” or contests the accuracy of the latter.23 The Panel, in
any event, will then examine whether or not the objection by the other party is
made in bad faith or is disproportionate.24 In case the party does not comply with
the order to produce translations, the Panel, in principle, can decline to consider

17 Mavromati/Reeb, Art. R29, para. 1; Mavromati, CAS Bull. 2012/1, p. 39.

18 CAS 2010/A/2311 & 2312, Stichting Anti-Doping Autoriteit Nederland (NADO) & the Koninklijke
Nederlandsche Schaatsenrijders Bond (KNSB) v. Wesley Lommers, Award of 22 August 2011,
para. 8.1.
19 Mavromati, CAS Bull. 2012/1, p. 45; Mavromati/Reeb, Art. R29, para. 30; see also CAS
2003/O/460, VFB Admira Wacker Mödling v. FIFA & Gornik Zabrze SSA, Preliminary Decision
dated 7 July 2003, para. 4.5.
20 BGer. 4A_600/2008 para. 5.2.2; see also CAS 2008/A/1621 Iraqi Football Association v. FIFA
& Qatar Football Association, Award of 29 September 2008, para. 61; CAS 2014/A/3703 Legia
Warszawa SA v. UEFA, Award of 28 April 2015, paras. 90 et seq.
21 CAS 2007/A/1207, Parma FC v. Portsmouth City FC, Award of 21 August 2007, para. 19; CAS
2009/A/1897, PAS Giannina 1966 Footballl Club v. Derek Décamps, Award of 23 November
2010, para. 3.13; Mavromati/Reeb, Art. R29, para.26.
22 Mavromati, CAS Bull. 2012/1, p. 41.
23 Mavromati/Reeb, Art. R29, para. 26.
24 See also Mavromati/Reeb, Art. R29, para. 28.
 1452 Arbitration in Switzerland – The Practitioner’s Guide

the documents.25 In certain individual cases the Panel may deem it sufficient to
only order the relevant parts of the documents in question to be translated (and
filed together with the original text). When considering to obtain translations, the
Panel should balance the need for such translations against any costs and delay
this may cause.26 The more important the document in question appears to be, the
more likely the Panel will request that translations be submitted. Finally, – if all
arbitrators sufficiently understand the original language in which a document is
drafted – the Panel may accept the document on file even without a translation into
the language of the proceedings.27
17 The burden of translation work as well as the respective costs are to be borne, as a
principle, by the party filing the document in question.

D Interpreters

18 Interpreters may be retained for hearings in order to translate for parties, witnesses
or experts who do not master the language of the arbitration proceedings. Interpreter
costs are at the expense of the party requesting them.28

25 CAS 2008/A/1641, Netherlands Antilles Olympic Committee v. IAAF & USOC, Award of 6 March
2009, para. 80; Mavromati/Reeb, Art. R29 para. 26.
26 Cf. CAS 2007/A/1207, Parma FC v. Portsmouth City FC, Award of 21 August 2007, para. 21. A
Panel may rule that it is not necessary to order the production of certified translations if the
Panel can understand the contents of the documents and if the fact that certain documents were
produced in another language did not put the other party at a disadvantage in the proceedings,
nor deprive it of its right to be heard, e.g., because the other party’s attorney understands all
documents.
27 Mavromati/Reeb, Art. R29, para. 11.
28 Art. R64.3.
 1453

Article R30: Representation and Assistance

The parties may be represented or assisted by persons of their choice. The names,
addresses, electronic mail addresses, telephone and facsimile numbers of the persons
representing the parties shall be communicated to the CAS Court Office, the other
party and the Panel after its formation. Any party represented by an attorney or
other person shall provide written confirmation of such representation to the CAS
Court Office.

I PURPOSE OF THE PROVISION

The purpose of this provision is to establish the rules regarding the representation 1
and assistance of the parties in CAS proceedings. The right to representation and
assistance is derived from the right to be heard.1

II CONTENT OF THE PROVISION

According to Art. R30, first sentence, the parties have the right to be represented or 2
assisted by other persons of their choice, during the entire (or part of the) arbitra-
tion proceedings. However, there is no obligation to appoint a representative, i.e., a
counsel or other person authorized to act on behalf of a party in the proceedings.2
In practice, sport organisations (e.g. clubs) are frequently represented by their head
of legal department or by the chairman / president.3 Nevertheless, in most cases it
is strongly recommended to retain a counsel who is familiar with the relevant sports
law and the CAS rules. The representatives are usually, but not necessarily, lawyers.4
Under the CAS Code and the PILS, lawyers admitted to the Swiss bar do not hold a 3
monopoly with regard to the representation of parties at CAS.5 However, due to the
great importance of Swiss law in CAS proceedings,6 it is often critical to be supported
by a counsel who is familiar with Swiss law.
The contact details of any appointed representative need to be communicated 4
to the other party, the CAS Court Office and the Panel.7 Any later changes in the
representative’s contact details need to be communicated to the CAS Court Office
without delay.8 Similarly, if the power of representation is revoked, this must be com-
municated within the meaning of Art. R30.9 In case a party has several representatives
the question may arise whether or not contact details of all representatives need

1 BGE 117 II 346 para. 1a; Berger/Kellerhals, para. 1169.

2 CAS 2007/A/1417, Perner v. ÖSV, Award of 25 January 2010, paras. 57–58; see also Mavromati/
Reeb, Art. R30, para. 17.
3 Mavromati/Reeb, Art. R30, para. 2.
4 Cf. Girsberger/Voser, 2016, para. 949.
5 However, only lawyers admitted to the Swiss Bar or lawyers authorized by an international
treaty to practice in Switzerland may represent parties in actions to set aside arbitral awards
before the Swiss Federal Supreme Court, cf. Art. 40 BGG.
6 Cf. Arts. R45 and R58.
7 Art. R30, second sentence; since the 2013 revision of the CAS Code this explicitly includes the
email address as communication by email has become quite common at CAS, cf. Art. R31.
8 Cf. Art. R31(1), second sentence at the end.
9 Mavromati/Reeb, Art. R30, para. 14.
 1454 Arbitration in Switzerland – The Practitioner’s Guide

to be communicated. In the light of the purpose of this provision, i.e. to establish

the precise date and time of notification of each document to the individual party,
it suffices that the details of the leading counsel are communicated.10 It is open
to question whether this rule also applies to persons assisting a party. The better
arguments speak for a literal application of Art. R30.11
5 There is in principle no limit to the number of persons representing a party. In
particular during the hearing a party may be represented or assisted by as many
counsel as they want. However, it is up to the Panel to organize the hearing schedule
and to allocate time to the various parties. Good administration of justice may, thus,
well require that not all representatives will be allowed to speak at the hearing.12
6 Under the CAS Code edition 2004, Art. R30, third sentence, stated that a “power of
attorney may be provided”. In the course of the 2010 revision of the CAS Code the
wording of this provision was changed into a “power of attorney must be provided”.
Under the 2013 revision, the wording was changed again and now states the parties
“shall provide written confirmation of such representation”.13 The modified wording
now conforms to the first sentence of Art. R30, according to which not only attorneys
but also other persons may represent parties at CAS. Moreover, the new wording
makes clear that power of representation must be provided in writing, i.e. that oral
declarations are not sufficient. In addition, the term “confirmation” implies that if
a submission is made without proof of representation, a respective confirmation
may still be submitted at a later stage.
7 The power of attorney shall be produced spontaneously and not at the request of a
party or the Panel.14 However, Art. R30 is silent on when such written confirmation
must be submitted to the CAS Court Office. Also, Art. R48 of the CAS Code, dealing
with the (mandatory) requirements of the statement of appeal, does not explicitly
list the power of attorney. Thus, it appears that the power of attorney does not need
to be attached to the statement of appeal in order to comply with the time limit in
Art. R49 to file the appeal.15
8 A question may arise as to the validity of a request for arbitration / appeal in case it
was filed by a representative lacking due authorization. In principle, such procedural
acts are not void from the outset, but may be authorized by the represented party
ex post.16 That such authorization is effective ex tunc is corroborated by the juris-
prudence of the Swiss Federal Supreme Court as well as by Swiss legal literature.17

10 Mavromati/Reeb, Art. R30, para. 5.

11 Mavromati/Reeb, Art. R30, para. 4.
12 Mavromati/Reeb, Art. R30, para. 6.
13 Before the 2010 revision, no power of attorney or written confirmation of representation was
explicitly required by Art. R30; this was also confirmed by CAS jurisprudence, CAS 2002/A/395,
UCI v. D and FCI, Award of 19 November 2002, para. 3.
14 Mavromati/Reeb, Art. R30, para. 14.
15 CAS 2015/A/3959, CD Universidad Católica & Cruzados SADP v. Genoa Cricket and Football
Club, Award of 27 November 2015, para. 132.
16 CAS 2015/A/3959, CD Universidad Católica & Cruzados SADP v. Genoa Cricket and Football
Club, Award of 27 November 2015, para. 133.
17 BGer 4A_150/2013, para. 3.2; Staehelin/Schweizer, in: Sutter-Somm/Hasenböhler/Leuenberger
(eds.), Kommentar zur Schweizerischen Zivilprozessordnung, para. 28 at Art. 68.
Article R30 CAS Code – Noth/Haas 1455

If a party does not have the financial means to be represented by a lawyer before 9
the CAS, it may file a request for financial aid to the CAS (for detail, see the below
commentary on Art. R48).18

18 For details see Mavromati/Reeb, Art. R30, paras. 23 et seq.

 1456

Article R31: Notifications and Communication

All notifications and communications that CAS or the Panel intend for the parties
shall be made through the CAS Court Office. The notifications and communications
shall be sent to the address shown in the arbitration request or the statement of
appeal, or to any other address specified at a later date.
All arbitration awards, orders, and other decisions made by CAS and the Panel
shall be notified by courier and/or by facsimile and/or by electronic mail but at
least in a form permitting proof of receipt.
The request for arbitration, the statement of appeal and any other written submis-
sions, printed or saved on digital medium, must be filed by courier delivery to
the CAS Court Office by the parties in as many copies as there are other parties
and arbitrators, together with one additional copy for the CAS itself, failing which
the CAS shall not proceed. If they are transmitted in advance by facsimile or by
electronic mail at the official CAS email address (procedures@tas-cas.org), the filing
is valid upon receipt of the facsimile or of the electronic mail by the CAS Court Office
provided that the written submission and its copies are also filed by courier within
the first subsequent business day of the relevant time limit, as mentioned above.
Filing of the above-mentioned submissions by electronic mail is permitted under
the conditions set out in the CAS guidelines on electronic filing.
The exhibits attached to any written submissions may be sent to the CAS Court
Office by electronic mail, provided that they are listed and that each exhibit can be
clearly identified; the CAS Court Office may then forward them by the same means.
Any other communications from the parties intended for the CAS Court Office or the
Panel shall be sent by courier, facsimile or electronic mail to the CAS Court Office.

I PURPOSE OF THE PROVISION

1 The purpose of Art. R31 is to establish rules with regard to communications between
the CAS, the Panel and the parties, from the beginning to the conclusion of arbitra-
tion proceedings at the CAS. The provision was amended in 2016 with the aim of
facilitating electronic communication with the CAS Court Office.

II CONTENT OF THE PROVISION

A The Terms Used

2 The provision speaks of “notifications” and “communications”. Both terms are

not defined in the CAS Code. However, it follows from Art. R31(2) that the term
“notification” describes the communication of Panel decisions to the parties (“[a]ll
arbitration awards, orders, and other decisions made by CAS and the Panel shall be
notified”). The term “communication”, in turn, is used for submissions of the parties
to the CAS Court Office / Panel.1 Thus, the request for arbitration, the statement of
appeal and any other written submission (cf Art. R31(3)) are “communicated” to

1 Mavromati/Reeb, Art. R31, para. 1.

Article R31 CAS Code – Noth/Haas 1457

the CAS Court Office by the parties. The same is true for counterclaims lodged by
a party and any other letters addressed to the CAS.2

B Coordination through the CAS Court Office

Article R31 provides that all notifications and communications from the CAS or the 3
Panel to the parties, and conversely from the parties to the CAS or the Panel, shall
take place via the CAS Court Office.3 Hence, in arbitrations before the CAS, written
communications may not be exchanged directly between the parties and the Panel,
but always through the institution’s court office. This communication system may
not appear to be the most efficient, but it facilitates control of the information flow
between the parties and the Panel.

C Form of Notifications

The arbitral awards, orders and other decisions of the CAS or the Panel shall be 4
notified according to Art. R31(2) to the parties in any form permitting proof of
receipt.4 In the 2013 revision of the CAS Code it was clarified that this includes
courier, facsimile and electronic mail, but that this list of notification means is not
exclusive. The question may arise what the phrase “other decisions” intends to
include, i.e. whether or not this leaves any communication at all that may be sent to
the parties without permitting proof of receipt. The correct view holds that regular
exchange of correspondence between the CAS Court Office and the parties does not
fall under “other decisions” and, thus, can be sent by regular mail.5
Notifications must be sent to the address specified by the parties. The relevant 5
addresses of the parties and representatives (if any) follow from the information
given in the request for arbitration or statement of appeal or derive from any other
address specified at a later date (Art. R31(1)). Any change in the address of a party
or representative must be communicated to the CAS without delay, as communica-
tions sent to the previously indicated address shall be deemed to have been made
properly. There should, in principle, be only one address for each party.6
The question arises whether the “ok” status on the fax transmission sheet is suf- 6
ficient evidence that the communication was actually received by a party. Swiss
jurisprudence appears to be rather reluctant when it comes to accepting notification
by fax as a reliable means of communication.7

2 Mavromati/Reeb, Art. R31, para. 3.

3 Art. R31(1), first sentence and Art. R31(3), first sentence.
4 Art. R31(2).
5 Mavromati/Reeb, Art. R31, para. 10.
6 Mavromati/Reeb, Art. R31, para. 15.
7 BGer 4A_392/2010, paras. 2.3.1 et seq.
 1458 Arbitration in Switzerland – The Practitioner’s Guide

D Form of Communications

1 The Principle: Filing by Courier

7 Before the 2013 revision of the CAS Code, Art. R31(3), first sentence stated that “all
communications” from the parties to the CAS or the Panel had to be sent by “courier
or facsimile”. According to the new wording of this provision, “[t]he request for
arbitration, the statement of appeal and any other written submissions” must be
filed by “courier delivery” (i.e., postal or delivery services).8 This is a major change
as it means that filing submissions only by facsimile (or email) does not meet the
formal requirements of the CAS Code anymore.9 For communications other than
the submissions mentioned in Art. R31(3) sentence 1, the means of either courier,
facsimile or electronic mail suffices (Art. R31(5) last sentence). The list of these three
means of communication seems to be exhaustive (unlike the list in Art. R31(2)). It is
unclear – at least at first glance – which kind of communications is covered by the
term “submission” contained in Art. R31(3). However, if read in conjunction with
Art. R44.1, the term “any other submission” in Art. R31(3) clearly refers to additional
rounds of submissions concerning the matter in dispute (e.g. reply, rejoinder or, for
instance, a statement regarding new evidence filed at a later stage due to exceptional
circumstances pursuant to Art. R56). The requirement to dispatch files by courier
does not apply to exhibits to the written submissions. Exhibits may be filed via
electronic mail according to Art. R31(5), provided that they are clearly referenced
in the written submissions (sent by courier) and that each exhibit can be clearly
identified. In such case the CAS Court Office will forward them to the other party
and the arbitrators only electronically.
8 Since the 2013 revision, the CAS Code allows submissions not only in printed
form, but also saved on digital media.10 The CAS Code does not specify the term
“digital medium” and one may expect that it is to be understood broadly (at least
as long as its meaning is not further clarified by the CAS). Thus, it encompasses
any customary digital medium such as CD-ROM or USB-stick. Importantly, the data
contained on the digital medium must be saved in one of the common formats, for
instance, pdf or Word.

2 The Exception: Filing by Electronic Mail Along with Courier

9 In addition, the CAS Code now permits under certain conditions the filing of
submissions by electronic mail. The conditions are set out in the CAS guidelines
on electronic filing, which are published on the CAS website.11 Accordingly, the
submission initiating the CAS proceedings (Request for Arbitration / Statement of
Appeal) must be filed by facsimile or courier. In order to benefit from the e-filing
system, a respective request of a party needs to be consented to by all other parties.
10 Correspondingly, the communications referred to in Art. R31(3) may be transmitted
in advance by electronic mail to the official CAS e-mail address. However, even

8 Art. R31(3), first sentence.

9 As also expressed by Art. R31(3), second sentence.
10 Art. R31(3), first sentence, effective as of 1 March 2013.
11 <http://www.tas-cas.org/en/e-filing/e-filing.html>. See also Stocker, in Bernasconi, Arbitrat-
ing Disputes in a Modern Sports World, 2016, 113 et seq.
Article R31 CAS Code – Noth/Haas 1459

upon receipt of the electronic mail, the filing is only valid if the written submission
(along with the necessary copies) is dispatched in hardcopy by courier within the
first subsequent business day of the relevant time limit.
The CAS Code (still) does not provide for any rule regarding cases where briefs are 11
submitted in a timely fashion, but the exhibits do not arrive within the time limit
for technical reasons (e.g., due to server problems or because the maximum size
for attachments has been exceeded). As a principle, the party using such a form
of communication bears the risk of such failure. However, it is desirable for the
CAS to adopt a pragmatic approach and accept the attachments at a slightly later
stage, unless there are clear indications of abuse. In any event, where documents
are successfully transmitted and available to the other party only after a delay, the
CAS, as appropriate, shall grant some extra time to such party.

E Receipt of Communications

The CAS Code does not define what constitutes receipt of communication.12 12
Presumably, it embraces the “objective-receipt theory” and, thus, considers any
communication as validly received if said communication has been physically
delivered to the addressee, whether to him personally or to someone at his residence
or place of business such as a secretary.13

F Copies of Submissions

A party filing a written submission must file one copy for each party, each arbitrator 13
and the CAS itself.14 This applies equally to submissions in printed form (hardcopies)
and submissions stored on digital devices.15 Non-compliance with this rule may have
the consequence that the CAS does not proceed with the arbitration. Despite the clear
wording of this provision, i.e. “shall not proceed”,16 this very strict consequence is
neither compulsory nor automatic; in other words: “not to proceed” is an optional
choice rather than an obligation of the CAS.

12 With regard to when, i.e., at what point in time a communication is deemed to have been
received, cf. Art. R32, paras. 2 – 4.
13 This understanding corresponds to the express wording of some important arbitration rules such
as Art. 2(2)(3) UNCITRAL Rules or Art. 2(1) Swiss Rules and to the corresponding principles
applicable under Swiss civil law (cf. “Empfangstheorie” and “Zugangsprinzip” in German).
14 Art. R31(3), first sentence. In the event that the number of arbitrators is not defined in the
arbitration agreement, at least one copy, but preferably three copies should be filed for the
arbitrator(s).
15 Beloff/Netzle/Haas, para. E3.70.
16 The CAS Code edition 2004 did not yet contain this provision. This rule was adopted only with
the 2010 revision of the CAS Code, at which time it read “CAS will not proceed”.
 1460

Article R32: Time Limits

The time limits fixed under this Code shall begin from the day after that on which
notification by the CAS is received. Official holidays and non-working days are
included in the calculation of time limits. The time limits fixed under this Code are
respected if the communications by the parties are sent before midnight, time of
the location of their own domicile or, if represented, of the domicile of their main
legal representative, on the last day on which such time limits expire. If the last
day of the time limit is an official holiday or a non-business day in the location
from where the document is to be sent, the time limit shall expire at the end of
the first subsequent business day.
Upon application on justified grounds and after consultation with the other party (or
parties), either the President of the Panel or, if she/he has not yet been appointed,
the President of the relevant Division, may extend the time limits provided in
these Procedural Rules, with the exception of the time limit for the filing of the
statement of appeal, if the circumstances so warrant and provided that the initial
time limit has not already expired. With the exception of the time limit for the
statement of appeal, any request for a first extension of time of a maximum of
five days can be decided by the CAS Secretary General without consultation with
the other party(-ies). The Panel or, if it has not yet been constituted, the President
of the relevant Division may, upon application on justified grounds, suspend an
ongoing arbitration for a limited period of time.

I PURPOSE OF THE PROVISION

1 The purpose of Art. R32 is to provide guidance and clarity with regard to time
matters,1 in particular the calculation (Art. R32 (1)) and extension (Art. R32 (2)) of
time limits and the suspension of arbitration proceedings (Art. R32 (3)).

II CONTENT OF THE PROVISION

A Time Limits under the Code

2 The provision refers to “time limits fixed under this Code”, i.e. provisions in which
the CAS legislator defines time limits.2 This may concern deadlines already fixed
in the Code itself as, for example, in Art. R34(1) (seven days), Art. R37(4)(6) (ten
days), Art. R40.2(2) (fifteen days) or Art. R51(1) (ten days). In addition, also time
limits fixed by the Panel (in application of the Code and, thus, “under the Code”)
fall within the scope of Art. R32. Examples of provisions where the Code confers
power upon the Panel to fix deadlines within its discretion are, e.g., Arts. R39,
R40.2 and R44.1.
3 Whether the time limit for filing an appeal under Art. R49 is already a “time limit fixed
under the Code” is questionable. The time limits for appeal are fixed, in principle,
in the statutes or regulations of the federation, association or sports-related body

1 Cf. CAS 2008/A/1705, Grasshopper v. Alianza Lima, Award of 18 June 2009, para. 34.
2 Mavromati/Reeb, Art. R32, para. 2.
Article R32 CAS Code – Noth/Haas 1461

concerned and, not strictly speaking, “under the Code”.3 The twenty-one-day deadline
provided for in Art. R49 only applies by default. Consequently, R32(2) provides
that any time limits provided for in the Code may be extended with the exception
of the one provided for in Art. R49. Nevertheless, Art. R32(1) should be used as an
interpretative tool when calculating the time limits under Art. R49 (see below B).4

B Calculation Of Time Limits

1 Law Applicable to the Calculation of the Time Limit

The calculation of time limits has to be performed first and foremost on the basis of 4
Art. R32. However, the question may arise what law to apply subsidiarily in case of
a lacuna in the rules. It is submitted inter alia that the law subsidiarily applicable
is the law of the place of receipt5 or the lex arbitri.6 The second view is preferable
and should be followed consistently as it leads to uniform results and allows for
the application of the European Convention on the Calculation of Time Limits, to
which Switzerland is a signatory.7

2 Dies a Quo

The time limits established under the CAS Code begin (dies a quo) on the day follow- 5
ing the day of receipt of the respective communication.8 This is, by the way, in line
with Swiss law (cf. Art. 132 CO, 77(1) CO).9 The question of when a communication
is deemed to have been received follows Swiss law (see supra para. 4). Accordingly,
receipt means that the communication must have come into the sphere of control of
the party concerned (or of his/her representative or agent authorised to take receipt)
and that the party concerned must also have a (reasonable) possibility of taking
note of the notification by the CAS.10 This is not the case, if notification made to the

3 CAS 2003/A/643, Superstar Rangers FC v/ Sport Lisboa e Benefica Futebol SAD, Award of 1
February 2005, para. 7.
4 CAS 2013/A/3165, FC Volyn v. Issa Ndoye, Award of 14 January 2014, paras. 44–47; CAS
2004/A/574, Associação Portuguesa de Desportos v/ Club Valencia C.F. S.A.D., Award of 15
September 2004, para. 69; CAS 2003/A/643, Superstar Rangers FC v/ Sport Lisboa e Benefica
Futebol SAD, Award of 1 February 2005, para. 7; CAS 2008/A/1705, Grasshopper v/ Club Alianza
de Lima, Award of 18 June 2009, paras. 8.3.3 et seq.; Mavromati/Reeb, Art. R32, para. 15;
Haas, SchiedsVZ 2011, pp. 1, 8 seq.
5 CAS 2004/A/574, Associacao Portuguesa de Desportos v. Club Valencia, para. 70, describing it
as “place of delivery”.
6 CAS 2010/A/2315, Netball New Zealand v. IFNA, Award of 27 May 2011, para. 7.6; see also CAS
2010/A/2354, Elmir Muhic v. FIFA, Award of 24 August 2011, para. 37; for further references,
see Art. R49, para. 7 below.
7 European Convention on the Calculation of Time Limits of 16 May 1972 (Europäisches
Übereinkommen über die Berechnung von Fristen in German, SR 0.221.122.3); cf. Art. R49,
para. 7 below; as to the meaning of receipt of communication, see Art. R31, para. 12 above.
8 Art. R32(1), first sentence.
9 Cf. CAS 2010/A/2354, Elmir Muhic v. FIFA, Award of 24 August 2011, para. 37; CAS 2007A/1364,
WADA v. FAW and James, Award of 21 December 2007, paras. 6.1 et seq.; CAS 2006/A/1153,
WADA v/ Assis & FPF, Award of 24 January 2007, para. 41; see also Mavromati/Reeb, Art. R32,
para. 18; Haas, SchiedsVZ 2011, p. 9.
10 CAS 2004/A/574, Associação Portuguesa de Desportos v. Club Valencia C.F. S.A.D., Award of
15 September 2004, para. 60; CAS 2006/A/1153, WADA v/ Assis & FPD, Award of 24 January
2007, para. 40.
 1462 Arbitration in Switzerland – The Practitioner’s Guide

address of the party’s federation instead of the party’s address.11 Whether the party
concerned actually took note of the content of the communication, is not decisive.12
The burden of proof of having received a communication at a certain point in time
lies with the party so claiming.13

3 Dies at Quem

6 The time limits under the CAS Code are deemed to have been met (dies ad quem)
if the party’s communication is sent before midnight on the last day on which said
time limit expires.14 In the course of the 2013 revision of the CAS Code, it has been
clarified that the term “midnight” refers to the time at the location “where the
notification has to be made”. Since the notification (cf. Art. R31 para. 4 et seq.) has
to be made to the address of the party, the time zone of that party is decisive for
whether or not the communication has been sent before midnight.15
7 If the communication is to be sent by Swiss postal services, it is decisive that it be
committed to a Swiss postal office (or courier) before the deadline has expired and
that said timely posting can be proven, for instance by acknowledgement of receipt
from the post office.16 The burden of proof of having sent the communication within
the set time limit rests with the party filing the submission.

4 Official Holidays and Non-working Days

8 Official holidays and non-working days that occur during the relevant time period
are included in the calculation of time limits under the CAS Code, meaning that
they do not extend the time limit.17 However, the time limit will be extended if its
last day falls on an official holiday or a non-business day.18 This, also, is consistent
with Swiss law.19 Again, the CAS Code specifies that it is the place from which the
notification is made, i.e. the place from which the communication to the CAS is
sent, which governs whether or not the last day of the deadline is an official holiday
or non-business day.20 In such a case, the time limit shall expire at midnight of the
first subsequent business day.21 As the parties may be located in different countries,
their official business days may vary. Under Swiss law, Saturday does not count as

11 CAS 2012/A/2839, C.A. Boca Juniors v. FIFA, Award of 26 July 2013, paras. 71 et seq.
12 CAS 2006/A/1153, WADA v/ Assis & FPD, Award 24 January 2007, para. 40; see also CAS
2004/A/574, Associação Portuguesa de Desportos v. Club Valencia C.F. S.A.D., Award of 15
September 2004, para. 60.
13 Mavromati/Reeb, Art. R32, para. 13.
14 Art. R32(1), third sentence. Confirmed in CAS 2009/A/1895, Le Mans Union Club 72 v. Club
Olympique de Bamako, Award of 6 May 2010, para. 10.
15 Contra: Mavromati/Reeb, Art. R32, para. 17; left undecided in CAS 2013/A/3274, Mads Glasner
v. Fédération Internationale de Natation (FINA), Award of 31 January 2014, paras. 52 et seq.
16 CAS 2001/A/343, Union Cycliste Internationale (UCI) v. H., Award of 28 January 2002, para.
9.
17 Art. R32(1), second sentence.
18 See also CAS 2015/A/3910, Ana Kuže v. Tianjin TEDA FC, Award of 20 November 2015, para.
53; see also CAS 2012/A/2839, C.A. Boca Juniors v. FIFA, Award of 26 July 2013, para. 70.
19 Mavromati/Reeb, Art. R32, para. 18; Haas, SchiedsVZ 2011, p. 9.
20 CAS 2014/A/3864, AFC Astra v. Laionel da Silva Ramalho & FIFA, Award of 31 July 2015, paras.
43 et seq.; contra: Mavromati/Reeb, Art. R32, para. 17.
21 Art. R32(1), fourth sentence; cf. also Arts. 3 and 5 European Convention on the Calculation of
Time Limits of 16 May 1972 (SR 0.221.122.3).
Article R32 CAS Code – Noth/Haas 1463

a working day.22 Thus, if the end of a time limit falls on a Saturday or Sunday, the
time limit expires on Monday only.23 It will fall to the party claiming entitlement to
an extension of time to establish that the last day of the time limit was a holiday or
non-working day pursuant to the applicable law, and that the day of its submission
is the first subsequent business day.

C Extension of Time Limits

Except for the time limit for filing the statement of appeal,24 time limits may be 9
extended if the party’s application is based on justified grounds, if the circumstances
of the case so warrant, and if the initial time limit has not yet expired.25 In any
event, a consultation with the other party is always required (in particular in order
to avoid a violation of the right to be heard). The extension is, in practice, rather
short (usually 3 days).26 In certain instances the time limit may be suspended until
the other party has expressed itself upon the request.27 That said, providing for the
possibility to extend time limits does not mean that time limits under the CAS Code
are not meant to be of absolute, binding character.28 Granting extensions should
be the exception rather than the rule. However, if a reasoned request is made on
time, the CAS is likely to grant the extension.29 The same is true if the request for
extension is accepted by the other party.30 If – despite being consulted – the other
party remains silent, such silence will be interpreted as tacit acceptance.31
Article R32 does not define the expressions “justified grounds” and “circumstances 10
so warrant”. “Justified grounds” refers to the grounds invoked by the applicant, i.e.,
the party requesting an extension. This usually requires that there be no fault on the
part of the applicant (e.g., in case of illness or important professional engagements
of the applicant or his representative, delays in obtaining evidence from third parties
or experts, difficulties to contact and consult with the applicant who is abroad – e.g.
at a tournament –, or the complexity of the case).32 The “circumstances” refer to
the arbitration and the actual case; they warrant an extension if, from an objective
point of view, no specific urgency interferes with the extension sought. At the end
of the day the justified grounds have to be balanced with the principle of good
administration of justice, in particular delays in the procedure, the principle of equal

22 CAS 2004/A/574, Associacao Portuguesa de Desportos v. Club Valencia, para. 69; Mavromati/
Reeb, Art. R32, para. 18.
23 Cf. CAS 2006/A/1175, D. v. International DanceSport Federation, Award of 26 June 2007, paras.
10–11.
24 Art. R32(2), first sentence; cf. BGer. 4A_126/2008 para. 2; CAS 2008/A/1561, Luke Michael
v. Australian Canoeing, Award of 29 September 2008, para. 3. However, there may be cases
involving good faith that may allow for remedy in case the deadline in R47 is missed, see Haas,
SchiedsVZ 2011, pp. 10 et seq.
25 Art. R32(2), first sentence.
26 Mavromati/Reeb, Art. R32, para. 24.
27 Mavromati/Reeb, Art. R32, para. 24.
28 BGer. 4A_600/2008 para. 4.2.1.2.
29 Cf. Oschütz, p. 271, stating that in practice a first extension will always be granted even if there
is no special reasoning.
30 See for an example, CAS 2011/A/2576, Curacao Sport and Olympic Federation v. IOC, Award of
31 August 2012, para. 3.4.
31 Mavromati/Reb, Art. R32, para. 24.
32 See CAS 2011/A/2621, David Savic v. Professional Tennis Integrity Officers, Award of 5 September
2012, para. 3.7; Mavromati/Reeb, Art. R32, para. 23 (with many examples).
 1464 Arbitration in Switzerland – The Practitioner’s Guide

treatment of the parties and the principle of proportionality.33 In assessing the weight
of the various grounds, the President of the Panel (or the Division President) has a
wide margin of discretion.34 In particular, requests for an extension in order to wait
for the outcome of parallel criminal proceedings are problematic.35 No extension,
in principle, can be granted if the request is filed after the original deadline has
already expired (see also below para. 13). However, in exceptional circumstances a
new deadline may be fixed with the agreement of all other parties.
11 Requests for the extension of time limits are quite frequent in CAS proceedings. They
may be filed by any of the parties.36 Extensions are usually dealt with by the President
of the Panel (or in case the Panel has not yet been appointed, by the President of the
respective Division). Depending on whether or not the other party has objected to the
extension, the President of the Panel will either give a brief explanation in the letter
granting the extension or refer to the reasoning in the award.37 Sometimes, requests
are made just shortly before the expiry of the time limit as the party claims to have
discovered an element requiring further action that cannot be accomplished within
the remaining time.38 Such cases require swift decisions. Therefore, the CAS Code
contemplates that, except as regards the time limit for the statement of appeal, any
request for a first extension of up to five days may be decided by the CAS Secretary
General, notably without consulting the other party.39
12 Article R32 does not exclude the possibility that several subsequent requests for
extension may be lodged by the same party and eventually granted. This is possible
in particular where the grounds are not caused by the requesting party itself, where
new circumstances have arisen, or where the opposing party agrees to a further
extension. In any event, the grounds put forward by the requesting party should be
more significant to justify a second extension. However, if the opposing party does
not object, a further extension will be granted liberally.
13 It has been submitted that even in situations in which the time limit has already
expired, a party may nonetheless request the reinstatement of the time limit.40 In
essence, at least partly, this is provided for in case of late filing under Art. R56. In
any case, CAS should grant such reinstatement only in exceptional circumstances,
failing which legal certainty would be undermined. Such exceptions require that (i)
the party was objectively prevented from acting on time by extraordinary circum-
stances (e.g., by accident or illness), (ii) the party did not cause the extraordinary
circumstances through its own fault, that (iii) the party immediately act as soon as
he/she is able to do so, and (iv) such reinstatement be proportional in relation to
previous proceedings and the interests at stake.

33 CAS 2010/A/2235, UCI v. Tadej Valjavec & Olympic Committee of Slovenia, Award of 21 April
2011, para. 71; Mavromati/Reeb, Art. R32, para. 25.
34 CAS 2010/A/2235, UCI v. Tadej Valjavec & Olympic Committee of Slovenia, Award of 21 April
2011, para. 71.
35 CAS 2008/A/1528 & 1546, UCI & CONI v.Gianpaolo Caruso & Italian Cycling Federation, Award
of 21 January 2009, para. 3.4 seq.
36 Mavromati/Reeb, Art. R32, para. 22.
37 See also Mavromati/Reeb, Art. R32, para. 24.
38 Rigozzi, Jusletter 13 September 2010, para. 17.
39 Art. R32(2), second sentence.
40 Rigozzi, Jusletter 13 September 2010, para. 18.
Article R32 CAS Code – Noth/Haas 1465

Where a party does not make use of Art. R32 and does not request an extension, 14
it may not argue at a later stage that it did not have enough time to prepare the
arbitration, and that as a consequence its right to be heard was violated.41

D Suspension (Stay) of the Arbitration

Apart from Art. 186(1bis) PILS, there is no specific statutory provision as to the 15
power of the Panel to stay arbitral proceedings. However, the power of the Panel
to do so follows (indirectly) from Art. 182(2) PILS, according to which the arbitral
tribunal is competent to decide on questions of procedure unless the parties have
agreed otherwise. Hence, a Panel has – in principle and absent any contrary agree-
ment to the by the parties – full discretion when ruling on a request for a stay.42
In conformity with this principle of Art. 182(2) PILS, Art. R32(3) provides that the
arbitration “may” be suspended on “justified grounds”. Thus, the Panel (or the
Division President) enjoys a wide margin of discretion when deciding on the request
for a stay. In doing so, the Panel is not bound by the prerequisites enshrined in Art.
R37, since a suspension of the arbitration procedure is not a provisional measure
within the meaning of Art. R37.43 Pursuant to the clear wording of this provision
a suspension may not be ordered ex officio. The provision in Art. R32(3) must be
distinguished from Art. R39(4) and Art. R55(5), which adopt the provision in Art.
186(1bis) PILS practically verbatim for parallel (civil) proceedings.44
Article R32(3) does not specify the meaning of the term “justified grounds”. A 16
suspension is justified where, from an objective point of view, the granting of a
stay facilitates establishing the proper decision, prevents contradictory decisions
and/or increases efficiency. Upon receipt of a request for a stay from one party, a
consultation with the other party is required.45 The other party’s agreement or lack
of objection to the request for suspension is no conditio sine qua non, but usually
facilitates the granting of the request.46 In exercising its discretion the Panel will
balance the conflicting interests of the parties, in particular the right of access to
justice, with due consideration to equal treatment of the parties.47 Grounds for
suspending an arbitration might exist where the interlocutory award issued by
the Panel according to Art. 186(1) PILS is appealed to the Swiss Federal Supreme
Court, where a decision on legal aid or the language of the proceeding (Art. R29)
is pending, and where proceedings to challenge an arbitrator, conciliation talks, or

41 BGer. 4A_612/2009 para. 5.1.2.

42 Poudret/Besson, para. 581.
43 See also CAS 2008/A/1528 & 1546, UCI & CONI v. Caruso & FCI, Order on Provisional Measure
of 22 August 2008, paras. 5.1 et seq.
44 Mavromati/Reeb, Art. R32, para. 31.
45 Art. R32(2) by analogy.
46 Cf. CAS 2008/A/1531, Federaciòn Boliviana de Futbol v. FIFA, Procedural order of 12 June
2008; CAS 2011/A/2678, IAAF v. RFEA & Francisco Fernandez Pelaez, Award of 17 April 2012,
paras. 64 et seq.; CAS 2008/A/1564, World Anti-doping Agency (WADA) v. International Ice
Hockey Federation (IIHF) & Florian Busch, Award of 23 June 2009, p. 8, where WADA requested
that the appeal procedure be stayed until the National German Court of Arbitration for Sports
rendered its final decision on the appeal filed by WADA, which appeal was pending before the
National German Court of Arbitration for Sports, a request to which the IIHF agreed; see also
Mavromati/Reeb, Art. R32, para. 17.
47 Cf Berger/Kellerhals, para. 1183.
 1466 Arbitration in Switzerland – The Practitioner’s Guide

proceedings for the replacement of an arbitrator are pending.48 In principle, the mere
fact that a proceeding relating to the same subject matter is pending before civil
courts is not – as such – a sufficient ground to suspend the arbitration proceedings.
This follows already from Art. 186(1bis) PILS.
17 The discretion conferred upon the Panel (or the Division President) to decide on the
request for a suspension is not limitless, however. Restrictions follow from Art. 182(3)
PILS, according to which due consideration must be given to the parties’ right to
be heard and to the principle of equal treatment. The Swiss Federal Supreme Court
has acknowledged that – beyond the aforementioned principles – restrictions to the
Panel’s discretion may apply where there are “mandatory reasons” for suspending
arbitral proceedings.49 Such “mandatory reasons” may follow from the notion of
ordre public or other basic procedural notions.50
18 No issue of public policy arises – e.g. – in a case of parallel proceedings between civil
courts and arbitration. Even if the CAS is the second court seized and the matter in
dispute is identical in both proceedings, no mandatory stay applies to the arbitral
procedure (cf. Art. 186(1bis) PILS, which basically excludes the lis pendens rule).
Furthermore, it is also established in Swiss jurisprudence that the principle “le pénal
tient le civil en l’état”,51 according to which a criminal procedure takes precedence
over a civil procedure, is not part of the Swiss ordre public.52 This follows – inter
alia – from Art. 53 of the Swiss Code of Obligations (hereinafter referred to as “CO”)
that specifically provides for the principle of independence between criminal and
civil proceedings. Thus, the fact that criminal investigations are (allegedly) pending
does not constitute a mandatory ground for a stay of the arbitral proceedings. Only
in very rare circumstances has the Swiss Federal Supreme Court contemplated a
mandatory ground for a suspension, where “questions material to the outcome of
the arbitral proceedings that are beyond the competence of the arbitral tribunal must
be clarified”.53 Likewise, a mandatory stay based on the right to be heard will only
be warranted in exceptional cases. It has been observed that continuing rather than
suspending the arbitration may prevent a party from introducing evidence that might
have been obtained otherwise. Though this is true, it does not warrant a mandatory
stay of the arbitral proceedings as can be deduced from the following jurisprudence
of the Swiss Federal Supreme Court: “[C]ases in which difficulties of a probative
nature arise do not fall into this category [of a mandatory stay];54 the possibility of
absence of proof is inherent to civil procedure ; the rules on the burden of proof then
achieve their true significance. In order to ease the consequences of this rigid solution,

48 Mavromati/Reeb, Art. R32, para. 28; Berger/Kellerhals, para. 1184.

49 BGer 4P.64/2004 para. 3.2.
50 BGE 127 III 279 para. 2 a/b.
51 For a (detailed) analysis of this principle stemming from French law, cf. Cour d’appel Paris
(23.3.2002) Rev. Arb. 2002, 971 et seq.; Cour d’appel Paris (20.6.2002) Rev. Arb. 2002, 792 et
seq.; Chilstein, Droit pénal et arbitrage, Rev. Arb. 2009, 3, 44 et seq.
52 BGE 119 II 386 para. 1c; cf. also BGer 4A_604/2010, ASA Bull. 2013, 89, 95; Poncet/Macaluso,
in: Festschift Kellerhals, 2005, pp. 65, 70 et seq.; Berger/Kellerhals, paras. 1185–1186; Poudret/
Besson, para. 583; Belohlavek, Arbitration Vol II, 2009, para. 1397; see also CAS 2010/A/2298,
Jae Joon Yoo v. AIBA, Award of 12 July 2011, paras. 7.1–7.3.
53 BGer. 4P.64/2004 para. 3.2: “A mandatory ground may be acknowledged where circumstances
occur that affect the legal existence or the legal capacity of a party or if questions material to
the outcome of the arbitral proceedings that are beyond the competence of the arbitral tribunal
must be clarified.”
54 Inserted for better understanding.
Article R32 CAS Code – Noth/Haas 1467

the legislator provides that a party that was prevented from presenting conclusive
evidence in due time may file an action for revision; this measure is also available in
the ambit of procedures according to articles 176 et seq of the PILA, even though not
expressly provided for.” 55 In case insolvency proceedings are opened over the estate
of a party to the proceedings, the correct view holds that – irrespective of where
this party is domiciled – Art. 207(1) SchKG is not applicable, since this provision
only applies to proceedings pending before (Swiss) state courts.56 Furthermore, the
provision is not part of the Swiss ordre public.57 However, the right to be heard may
warrant that the proceedings be suspended, if the administrator taking over the
estate needs additional time to familiarize himself with the file.58
Article R32(3) makes it clear that an arbitration proceeding cannot be suspended 19
indefinitely. Instead, suspension can only be granted “for a limited period of time”.

55 BGE 119 II 386 para. 1b ; cf. also Poncet/Macaluso, in: Festschrift Kellerhals, 2005, pp. 65, 72.
56 The question is, however, disputed in legal literature, cf. Berger/Kellerhals, paras. 1187 seq.;
see also BGE 130 III 769 para. 3.2.3. where the courts specifically stated that the provision is
only applicable to courts and authorities in Switzerland (“nur gegenüber Richtern und Behörden
im Inland”).
57 Poudret/Besson, para. 584; Lévy, Insolvency in Arbitration – Swiss law, in: Financial Capacity
of the Parties – A Condition for the Validity of Arbitration Agreements?, edited by the German
Institution of Arbitration (DIS), Frankfurt a. M., 2004, p. 102.
58 Lévy, Insolvency in Arbitration – Swiss law, in: Financial Capacity of the Parties – A Condition
for the Validity of Arbitration Agreements?, edited by the German Institution of Arbitration
(DIS), Frankfurt a. M. 2004, p. 103.
 1468

Article R33: Independence and Qualifications of Arbitrators

Every arbitrator shall be and remain impartial and independent of the parties and
shall immediately disclose any circumstances which may affect her/his independ-
ence with respect to any of the parties.
Every arbitrator shall appear on the list drawn up by the ICAS in accordance with
the Statutes which are part of this Code, shall have a good command of the language
of the arbitration and shall be available as required to complete the arbitration
expeditiously.

I PURPOSE OF THE PROVISION

1 The provision deals with the independence and qualifications of CAS arbitrators. The
delivery of fair and “right” decisions requires independent and qualified arbitrators.
The purpose of Art. R33 is to ensure that arbitrators acting in CAS proceedings are
independent and sufficiently qualified. In case of lack of independence, an arbitrator
may be challenged in accordance with Art. R34. In case of insufficient qualifications,
an arbitrator may be removed pursuant to Art. R35.
2 This provision does not cover the institutional/structural independence of the CAS.1
The Swiss Federal Supreme Court has confirmed the said independence with regard
to sports federations2 and the IOC,3 and has stated that the CAS provides adequate
guarantees for an independent and impartial dispute resolution process.4

II CONTENT OF THE PROVISION

A Independence Of Arbitrators

1 The Terms “Independence” and “Impartiality”

3 According to Art. R33(1), every arbitrator needs to be “impartial and independent”.5

No universally accepted definitions of these two terms exist, but it is customarily
stated that independence relates to external factors, in particular externally percep-
tible connections of a financial, social or other kind, whereas impartiality relates
to internal factors (state of mind), in particular actual or possible bias on the part
of an arbitrator with regard to the dispute or one of the parties.6 It is apparent that
these two concepts partially overlap,7 and looking at the heading of Art. R33 which

1 Cf. Introduction above, para. 4, and Rigozzi, ZSR 2013 III, 301 et seqq.
2 BGE 119 II 271 para. 3b.
3 BGE 129 III 445 para. 3; BGer. 4A_612/2009 para. 3.1.3.
4 BGE 138 III 29 para. 2.2.2.
5 Cf. also Art. S18(2): Upon their appointment, the CAS arbitrators shall sign an official declar-
ation undertaking to exercise their functions personally with total objectivity, independence
and impartiality.
6 E.g., Mavromati/Reeb, Art. R33, para. 8; Berger/Kellerhals, para. 783; Girsberger/Voser, 2016,
para. 652 et seq. Impartiality is assumed as long as the contrary cannot be proven, cf. BGer.
4A_586/2008 para. 3.1.1.
7 Mavromati/Reeb, Art. R33, para. 8: “closely linked”.
Article R33 CAS Code – Noth/Haas 1469

mentions only independence, and at Art. R34 according to which an arbitrator can
be challenged on the basis of lack of independence or impartiality, it is clear that
the broader term independence also encompasses impartiality. It is noteworthy that
before the 2013 revision of the CAS Code, the wording of Art. R33(1) only mentioned
independence, but not impartiality.8 However, it seems to be universally accepted that
arbitrators have to be both independent and impartial in the aforementioned sense.9
Moreover, under the PILS, both the lack of independence and the lack of impartiality
are grounds on which an award can be set aside.10 Against this background, there
are no doubts that the CAS Code required impartiality already before the CAS Code
revision of 1 March 2013.11 In other words: Impartiality has always been covered by
the notion of independence and the said amendment to Art. R33 is just a clarification
of formal nature. (Accordingly, also throughout the following commentary on this
provision the use of the term independence usually includes impartiality).
Independence means not only that the arbitrator is de facto not dependent, but also 4
that he does not convey the impression that he might be dependent, i.e. that he does
not give raise to legitimate doubts about his independence.12 This must be assessed
from an objective third-party perspective and not from the subjective party view.13
Said third party is a hypothetical party and not an arbitrator. Naturally, also the
personal view of the arbitrator concerned and his “clean conscience” are not decisive
factors of the test. However, in order to admit legitimate doubts as to an arbitrator’s
impartiality or independence these doubts have to appear founded in objective
findings. Conversely, subjective impressions are not sufficient to induce a lack of
independence/impartiality, unless they are based on concrete, i.e. objective facts.14

2 The Legal Standard

The Swiss Federal Supreme Court has ruled that, as a starting principle, arbitral 5
tribunals must present the same guarantees of independence as state courts.15 Thus,
the decisions of the Swiss Federal Supreme Court in relation to Art. 30(1) of the
Swiss Constitution serve as a starting point. However, the Swiss Federal Supreme
Court has equally ruled that when assessing the independence of an arbitrator one
should also take into account the particularities of international arbitration.16 One
of its particularities is that arbitrators and counsels have frequent contacts due to
their economic and professional background and the private nature of arbitration

8 See Mavromati/Reeb, Art. R33, para. 7.

9 See IBA Guidelines, Part I(1); see also, e.g., Raeschke-Kessler, ASA Bull. 2008, p. 6; Girsberger/
Voser, 2016, paras. 652 et seq.
10 Cf. BGE 136 III 605 para. 3.3.2. Same: Art. 367(1)(c) CCP. See also Art. 30 FC.
11 Of the same view Rochat/Cuendet, p. 55; Kaufmann-Kohler/Bärtsch, p. 76.
12 Art. R34(1) sentence 1. See also BGer. 4A_586/2008 para. 3.1.1; Rigozzi, para. 947; Oschütz,
p. 119; Kaufmann-Kohler/Bärtsch, pp. 76–77; cf. further Art. R34, para. 3 below.
13 BGer. 4P.105/2006, para. 4; BGer. 4A_458/2009, para. 3.1; see also CAS 2002/A/370, L v. IOC,
Award of 29 November 2002, p. 4; CAS 2011/O/2583, ICAS Board Decision of 21 February 2012,
para. 29; Rigozzi, para. 947; De Witt Wijnen, p. 60; IBA Guidelines, Part I (2)(b).
14 BGE 129 III 445 para. 3.3.3; BGer. 4A_586/2008 para. 3.1.1; BGer. 4A_506/2007 para. 3.1.1;
see also CAS 2012/A/2697, ICAS Board Decision of 26 June 2012 published in 2012 ISLR 3, 49;
see Mavromati/Reeb, Art. R33, para. 18.
15 BGE 136 III 605 para. 3.2.1; BGE 125 I 389, para. 4a; BGer. 4A_586/2008 para. 3.1.1; BGer.
4A_506/2007 para. 3.1.1.
16 BGer 4P.4/2007 para. 3.1; BGer. 4A_506/2007 para. 3.1.1.
 1470 Arbitration in Switzerland – The Practitioner’s Guide

and that these contacts should not by themselves justify a challenge brought against
them.17 This is all the more true in an arbitration environment that is characterized
by a closed list of arbitrators and by special expertise of the arbitrators, as is the
case in sports law.18
6 The IBA Guidelines on Conflicts of Interest are a useful tool in determining whether
or not a specific arbitrator is sufficiently independent and/or impartial.19 Even though
the IBA Guidelines have since their first issuance in 2004 gained wide acceptance in
the arbitration community, it must be kept in mind that they are not actually legal
provisions and, therefore, do not override national law.20 Their purpose, rather, is
to assist parties (and arbitrators), in assessing whether or not there is sufficient
impartiality.21 The IBA Guidelines themselves expressly provide that they should
be applied employing common sense and no unduly formalistic interpretation.22
The ICAS23 as well as the Swiss Federal Supreme Court24 frequently refer to the IBA
Guidelines.

3 Same Standard for Chairman and Co-arbitrators

7 It has been long disputed among scholars whether, in international arbitration,

the independence standards applicable to a sole arbitrator or chairman differ from
those applicable to a party-nominated co-arbitrator.25 However, the Swiss Federal
Supreme Court has in the meantime confirmed that the application of a different
standard to co-arbitrators is not permissible in international arbitration.26 This rule
also applies to CAS arbitrations.

4 Applying the Standards in the Individual Case27

8 When assessing an arbitrator’s independence, all circumstances must be considered.

Independence (and impartiality), thus, must be assessed based on the individual
circumstances.28

17 BGE 129 III 445 para. 4.2.2.2; BGer. 4A_586/2008 para. 3.1.2; see also BGer. 4P.224/1997 para.
3.
18 BGE 129 III 445 para. 4.2.2.2.
19 See also Mavromati/Reeb, Art. R33, para. 33 et seq.
20 CAS 2012/A/2697, ICAS Board Decision of 26 June 2012 published in 2012 ISLR 3, 50.
21 Cf. IBA Guidelines Introduction (6).
22 IBA Guidelines Introduction (6).
23 Cf e.g. CAS 2009/A/1879, ICAS Board Decision of 23 November 2009, para. 31; see also CAS
2012/A/2697, ICAS Board Decision of 26 June 2012 published in 2012 ISLR 3, 40 et seq.
24 BGer. 4A_506/2007 para. 3.3.2.1: „precious working tool“; BGer. 4A_506/2007 para. 3.3.2.2.
25 In favour of an equal standard, e.g., Kaufmann-Kohler/Rigozzi, paras. 4.106–4.124; Berger/
Kellerhals, para. 784; Girsberger/Voser, 2016, para. 707; for a lower standard, e.g., Peter/Besson,
paras. 13–14 at Art. 180; Vischer, paras. 7–8 at Art. 180; Oschütz, p. 127.
26 BGE 136 III 605 paras. 3.3.1 et seq. This is also in line with the IBA Guidelines, cf. IBA Guidelines,
Part I (5); see also Mavromati/Reeb, Art. R33, paras. 14 et seq; Girsberger/Voser, 2016, para.
1939.
27 See for a whole range of examples and jurisprudence of CAS / ICAS, Mavromati/Reeb, Art.
R33, 19 et seq.
28 CAS 2012/A/2697, ICAS Board Decision of 26 June 2012 published in 2012 ISLR 3, 49; CAS
2007/A/1322, ICAS Board Decision of 19 September 2007, para. 16; CAS 2010/A/2070, ICAS
Board Decision of 3 August 2010, para. 8; CAS 2009/A/1879, ICAS Board Decision of 23
November 2009, paras. 25 et seq.; Mavromati/Reeb, Art. R33, para. 17.
Article R33 CAS Code – Noth/Haas 1471

An arbitrator’s independence needs to exist, first and foremost, in relation to the 9

parties.29 Thus, any close and direct links (as opposed to normal and ordinary
contacts) between an arbitrator and a party, such as economic subordination (e.g.
working relations, companies’ administration), family or personal links may objec-
tively cast doubt on an arbitrator’s independence and impartiality.30 Furthermore,
the aforementioned principles also apply to the relationship between arbitrators
and party counsels.31 However, in such case – since the link to the party is only
indirect and in light of the particularities of arbitration – a higher threshold must
be required to assume a lack of impartiality and/or independence.32 Therefore,
friendship between an arbitrator and a party’s counsel does not as such justify a
challenge.33 The same is true if an arbitrator sits in the same law firm as a party’s
counsel, provided that they do not share funds and revenues.34 In an equal sense,
the fact that an arbitrator and a party’s counsel are sitting together as co-arbitrators
in another pending case is not a sufficient basis to objectively justify a challenge.35
The same is true if counsel and arbitrator are members in the same academic, social
or professional association.36 In international arbitration the question may arise if
and to what extent barristers’ chambers within the English legal system are to be
seen on a par with law firms. This is answered predominantly in the affirmative.37
Conversely, factors that are not based on a relationship to a party or a counsel, but
are rooted solely in the arbitrator’s personality, such as e.g. nationality, domicile/
residence, gender, religion, ethnic and cultural background or other factors that are
inseparably inherent in the arbitrator’s person are, as a principle, not in themselves
a reason to assume lack of independence.38 However, if such an aspect of personal
background is at the core of the dispute (e.g., in a dispute regarding the exclusion
of an athlete allegedly motivated by racism), it may exceptionally become relevant.
In any event, shared nationality or residence in the same country does not amount
to a lack of independence.39
Further to independence in relation to the parties and counsels, independence 10
must also exist in relation to third parties with an interest in the outcome of the
arbitration and towards panel-appointed experts and witnesses whose statements

29 CAS 2012/A/2697, ICAS Board Decision of 26 June 2012 published in 2012 ISLR 3, 49; Mavro-
mati/Reeb, Art. R33, para. 19.
30 BGer. 4A_586/2008 para. 3.1.2; CAS 2012/A/2697, ICAS Board Decision of 26 June 2012
published in 2012 ISLR 3, 49.
31 CAS 2007/A/1322, ICAS Board Decision of 19 September 2007, para. 18; Kaufmann-Kohler/
Rigozzi, para. 4.115.
32 BGer. 4A_586/2008 para. 3.1.2; see also CAS 2007/A/1322, ICAS Board Decision of 19 September
2007, para. 18.
33 BGer. 4A_586/2008 para. 3.1.2; BGer. 4P.292/1993 para. 4.
34 BGer. 4A_586/2008 para. 3.1.2; BGer. 4P.224/1997 para. 3.
35 BGer. 4A_586/2008 para. 3.1.2; BGer. 4P.105/2006 para. 4.
36 BGer. 4A_506/2007 para. 3.3.2.2.
37 Cf. CAS 2012/A/2697, ICAS Board Decision of 26 June 2012 published in 2012 ISLR 3, 50 et
seq.
38 CAS 2007/A/1322, ICAS Board Decision of 19 September 2007, para. 14; CAS 2009/A/1893,
ICAS Board Decision of 29 November 2009, para. 17 published in Mavromati/Reeb, Art. R34,
Annex V (A); cf. also Rigozzi, para. 947; cf. also BGer. 4A_160/2007 para. 5, regarding the
Israeli passport of an arbitrator.
39 Swiss Federal Supreme Court decision of 16 May 1983 (République arabe d’Egypte v. Westland
helicopters Ltd. et al.), ASA Bull. 1984, p. 206; CAS 2007/A/1322, ICAS Board Decision of 19
September 2007, para. 14.
 1472 Arbitration in Switzerland – The Practitioner’s Guide

are decisive for the outcome of the arbitration.40 Especially, direct links, such
as economic dependency, family or close personal links or ongoing contractual
relationships may be grounds to successfully challenge an arbitrator.41 However, to
a certain degree, links, encounters and relations may exist without threatening the
arbitrator’s independence.

5 Further Examples

11 There is no exhaustive list of grounds for challenging an arbitrator.42 An arbitrator’s

involvement in other pending or prior arbitration proceedings in itself has no impact
on his independence, even where the cases and relevant issues are/were similar.43 An
arbitrator who sat in a Panel that confirmed a breach of contract was considered to be
independent in a subsequent second arbitration dealing with damage claims based on
the said breach of contract.44 An arbitrator’s self-description as a hardliner in doping
matters, made in the course of other proceedings, is too vague and general to cast
serious doubts on his independence.45 An arbitrator’s publications on specific legal
questions do generally not suffice to vindicate doubts concerning his independence
unless the proceedings appear predetermined due to such publications. The simple
fact that an arbitrator has been nominated several times by international sports
bodies is not per se sufficient to disqualify him.46 However, where the nomination
of an arbitrator by a party is quasi-systematic, his independence may be indeed
questioned.47 The Swiss Federal Supreme Court found WADA’s nomination of an
arbitrator who participated as an independent expert in the revision of the World Anti-
Doping Code (never representing, nor being instructed by or under the supervision
of WADA) to be acceptable.48 Apparently, however, a director or official of a party
or its affiliated party is not fit to serve as arbitrator.49 The fact that an arbitrator and
counsel to one of the parties have sat together on another panel does not constitute
grounds for challenging the arbitrator’s independence;50 nor, similarly, does the

40 Cf. Rigozzi, para. 952; Kaufmann-Kohler/Rigozzi, para. 4.119.

41 CAS 2011/A/2384, ICAS Board Decision of 4 May 2011, para. 2.7; CAS 2007/A/1322, ICAS Board
Decision of 19 September 2007, para. 17.
42 BGE 129 III 445 para. 4.2.2.2.
43 De La Rochefoucauld, CAS Bull. 2011/2, p. 29; CAS 2008/A/1644, ICAS Board Decision of 11
February 2009, para. 22; CAS 2008/A/1557, ICAS Board Decision of 28 May 2009, para. 24;
CAS 2010/A/2070, ICAS Board Decision of 3 August 2010, para. 4.
44 BGer. 4A_458/2009 para. 3.3.3.2; rightly critical Beffa/Ducrey, CaS 2011, p. 309.
45 BGer. 4A_612/2009 para. 3.2.
46 CAS 2007/A/1288, ICAS Board Decision of 18 July 2007, para. 22. In this regard see Guidelines
Part II orange list footnote 5, where it states 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
no disclosure of this fact is required, where all parties in the arbitration should be familiar with
such custom and practice.”; cf. also Mavromati/Reeb, Art. R33, paras. 27 et seq.
47 Rigozzi, JIDS 2010, p. 238. Cf. also CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/FC Sion,
Award of 31 January 2012.
48 BGE 136 III 605 para. 3.4.4; see also CAS 2009/A/1879, ICAS Board Decision dated 23 November
2009, paras. 28 et seq.
49 Cf. BGE 111 Ia 72 para. 2; Art. S21(1), second sentence. Depending on the nature of the dispute,
being a stakeholder of a company may also affect the arbitrator’s independence, in particular
if the stakeholder holds a substantial part of the shares.
50 BGer. 4P.105/2006 para. 4.
Article R33 CAS Code – Noth/Haas 1473

fact that the arbitrator and counsel to one of the parties had both been members
of the same Ad Hoc Division of CAS at the Olympics.51 In addition, the fact that a
representative of a party has worked as CAS Counsel for several years and during
this time established relationships with CAS arbitrators that went beyond normal
professional acquaintance will generally not suffice to challenge an arbitrator.52 The
same applies if an arbitrator and a counsel to one of the parties both worked at
different branch locations of the same law firm 4 or 5 years previously.53 Past or prior
normal (business) relationships are not per se problematic unless some financial
or social ties remain, in particular for purposes of acquiring new mandates.54 As
the circle of lawyers active in sports law is rather small, customary professional
contact amongst the arbitrator and counsel is inevitable and a certain degree of
friendship developed on the basis of professional intercourse is acceptable.55 Even
a friendship between an arbitrator and a party’s counsel is not necessarily sufficient
to assume that the arbitrator is not independent; additional reasons must pertain to
draw such a conclusion.56 Difficult questions may arise if the dispute concerns the
interests of an entire industry (“Brancheninteressen”) and the arbitrator appears to
be a representative of or otherwise connected with such industry.
In general, one may state that the Swiss Federal Supreme Court is fairly liberal in 12
assessing arbitrator independence and only rarely admits a challenge.57 This is true
for both commercial and sport arbitration.58 Some authors submit that a particularly
low threshold is applied in relation to challenges of arbitrators in CAS proceedings,
and lament that the impression arises that “the peculiarities of sports arbitration
are used by the Swiss Federal Supreme Court as an excuse or justification for a
more relaxed approach to the concepts of independence and impartiality in sports
arbitrations than in commercial arbitrations.”59 These reproaches are neither true nor
substantiated. Instead, the jurisprudence of the Swiss Federal Supreme Court shows
a balanced and justified approach in assessing whether allegations of partiality are
based on subjective distrust or on objective indicators of bias.60

51 BGE 129 III 445 para. 4.2.2.2.

52 BGer. 4A_176/2008 para. 3.3 at the end.
53 CAS 2011/O/2583, ICAS Board Decision of 21 February 2012, para. 33.
54 Cf. BGer. 4P.188/2001 para. 2d; see also CAS 2006/A/1095, ICAS Board Decision of 8 August
2006, para. 2.1; CAS 2007/A/1322, ICAS Board Decision of 19 September 2007, para. 17.
55 Cf. Poudret/Besson, para. 419; CAS 2008 (undisclosed case number), ICAS Board Decision of
11 February 2009, para. 22; CAS 2007/A/1322, ICAS Board Decision of 19 September 2007,
para. 17.
56 BGer. 4P.105/2006 para. 4. Cf. however BGE 92 I 271 para. 5, where the Swiss Federal Supreme
Court ruled that an arbitrator who was appointed by a party representative and whose wife
worked as a juridical member of staff at the law firm of the representative was not independent.
57 Beffa, ASA Bull. 2011, pp. 598–599 and 606; Leemann, ASA Bull. 2011, pp. 31–32; Kaufmann-
Kohler/Rigozzi, para. 4.114.
58 BGer. 4A_506/2007 para. 3.1.1: the particularities of sports arbitration “do not justify as such the
application of less demanding standards to sports arbitration than in commercial arbitration.”
59 Beffa, ASA Bull. 2011, p. 604.
60 Contra: the rather superficial analysis in Beffa/Ducrey, CaS 2011, p. 311, which in addition does
not correctly state the facts of the various cases.
 1474 Arbitration in Switzerland – The Practitioner’s Guide

6 No Acting as Counsel and Arbitrator

13 According to Art. S18(3), CAS arbitrators may not act as counsel for a party before
the CAS.61 This provision, adopted in 2010, is the result of several years of debate
on the question of whether or not the functions of an arbitrator and counsel may be
combined.62 This rule targets only the arbitrator himself, not the other members of his
law firm.63 As a result, law firms with lawyers who are on the list of CAS arbitrators
may still benefit from advantages such as having access to unpublished CAS case
law and other non-public data and information.64 Art. S18 does not prevent a CAS
arbitrator from writing an expert opinion on a specific question of law for one of the
parties in a proceeding in which he or she is not involved as an arbitrator, or from
being called as an expert witness or as a normal witness in such a CAS proceeding.
14 In the event of an arbitrator not complying with Art. S18, the ICAS has the power to
take particular measures against him with respect to his function as a CAS arbitrator,
including temporary or permanent suspension.65 However, it is not quite clear what
the immediate consequences of a breach of Art. S18(3) would be on the respective
arbitration procedure. If, e.g., a CAS arbitrator appears in a CAS proceeding (in which
he or she is not an arbitrator) in the capacity of counsel for one of the parties, the
question arises whether he or she, even without being removed from the list, may
nevertheless continue to represent the party’s interests before the CAS and, if so,
what consequences this would take on the respective arbitral award.

B Disclosure of Circumstances Affecting Independence

15 Arbitrators are under a duty to make reasonable enquiries to investigate any facts or
other circumstances that might affect their independence.66 Before the 2013 revision
of the CAS Code, Art. R33 stated that arbitrators must disclose any circumstances
“likely” to affect their independence.67 As this did not adequately describe the
required degree of care, the amended provision now states that arbitrators are
obliged to disclose any circumstances that “may” affect their independence. This
amendment is welcome and the principle “if in doubt, disclose” should be heeded
invariably.68 The duty to disclose applies to arbitrators and ad-hoc clerks,69 but not
to the parties’ counsels in respect of their party-appointed arbitrators (however, in
order to avoid a later overruling the counsel should disclose if the arbitrator fails to
do so). It must be kept in mind that the threshold for facts to be disclosed is much
lower than the threshold to assume an actual lack of independence and impartiality.
Consequently, a fact that has been disclosed by the arbitrator does not per se give
rise to a justified challenge. Conversely, the fact that the arbitrator failed to disclose
a fact (that should have been disclosed) is only an element to be taken into account

61 The arbitrators may not be members of the ICAS either (cf. Art. S5(3)).
62 See the instructive analysis of Mavromati/Reeb, Art. R33, para. 37.
63 CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/FC Sion, Award of 31 January 2012, para.
93; Reeb, New Code, p. 32; Rigozzi, Jusletter 13 September 2010, para. 9.
64 Critical on this: Rigozzi, Jusletter 13 September 2010, para. 9.
65 Art. S19(2).
66 Cf. IBA Guidelines, Part I (7)(c).
67 Art. R33(1) of the CAS Code edition 2012.
68 See also Guidelines, Part I (3)(d).
69 Cf. also Guidelines, Part I (5)(b).
Article R33 CAS Code – Noth/Haas 1475

when assessing the arbitrator’s independence and impartiality, but does not – per
se – indicate a lack of independence and/or impartiality.70
An arbitrator must be independent during the entire arbitration proceedings, i.e., 16
until the final award is rendered or the proceedings are otherwise terminated.71 To
prevent long delays at a later stage of the arbitration, any potential issues should be
disclosed at the outset of the proceedings.72 Arbitrators should make full disclosure
when they sign the “Arbitrator’s acceptance and statement of independence”, a
standard document of the CAS, upon their nomination. This standard document
invites prospective appointees to set out any facts or circumstances that might be
susceptible to compromise their independence. Should an arbitrator become aware
of circumstances potentially affecting his independence at a later stage, he must
immediately disclose them, in addition to providing reasons for not having done
so earlier.73

C Closed List of Arbitrators

Only arbitrators who appear on the list drawn up by the ICAS may be appointed 17
for CAS arbitration proceedings.74 The ostensible purpose of this mandatory list is
to ensure that only qualified arbitrators are appointed, in particular people with
recognized competence in sports law and a good knowledge of sports in general.75
The exhaustive nature of the list of CAS arbitrators has been approved by the Swiss
Federal Supreme Court.76
The list of the CAS arbitrators is available on the CAS website. Currently, the list 18
contains the names of over 350 arbitrators from all over the world. In reality most
cases at the CAS are decided by a rather small number of arbitrators;77 whereas the
other listed arbitrators act only in a few cases, if at all. As a result, a considerable
number of the listed arbitrators have little experience of CAS arbitration.78
Despite the fact that the CAS’s closed list is to be deemed lawful, some authors have 19
voiced criticism in that respect. According to them, the closed list entails the recurring
appointment of arbitrators, which may raise a variety of difficult questions regarding
independence. In addition, the critics advocate that by opting for a closed list, many
highly-qualified lawyers with great experience in arbitration and profiles that would
perfectly match certain specific CAS cases are excluded merely for not being on

70 Mavromati/Reeb, Art. R33, para. 43.

71 De La Rochefoucauld, CAS Bull. 2011/2, p. 30; cf. IBA Guidelines, Part I (1).
72 Cf. the Arbitrator’s Acceptance Form that all arbitrators are required to complete, in Mavromati/
Reeb, Art. R33, Annex V (A).
73 Cf. Rigozzi, para. 973; Rochat/Cuendet, p. 59.
74 Art. R33(2). Regarding the closed list, see also Introduction above, paras. 5–7.
75 De La Rochefoucauld, CAS Bull. 2011/2, p. 31; cf. Art. S14.
76 BGE 129 III 445 para. 3.3.3.2. However, the closed list calls for stricter standards of independence
and impartiality, cf. Rigozzi, JIDS 2010, p. 239. Cf. also CAS 2011/O/2574, UEFA v. Olympique
des Alpes SA/FC Sion, Award of 31 January 2012, para. 263, where the CAS states that sports law
is a kind of arbitration subject to the exception provided in point 3.1.2 of the IBA Guidelines.
77 Cf. CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/FC Sion, Award of 31 January 2012,
para. 211, where the CAS Secretary General testified that only 1/3 of the arbitrators are regularly
appointed. These arbitrators are without any doubt highly qualified lawyers.
78 Dickenmann, CaS 2010, p. 208.
 1476 Arbitration in Switzerland – The Practitioner’s Guide

the list.79 Finally, some criticize that the closed list applies to all CAS arbitrations
irrespective of the questions at stake. However, not all matters in the sports world
require very specific and technical expertise. Hence, the alleged need in the sports
world for such a list seems somewhat forced, all the more considering that other,
likewise complex, industries, such as the pharmaceutical industry apparently do not
have a need for a closed list, despite requiring very specific and technical knowledge.
20 Criticism and concerns within the arbitration community should always be taken
seriously. However, effective criticism relies on in-depth analysis, which – unfor-
tunately – is sometimes missing. It is true that other industries and arbitration
institutions, such as the ICC, function well without closed lists and are able to handle
complex cases. However, the decisive difference is that one of the core elements
of the sports industry is the equal treatment of all stakeholders. Unlike the parties
in other industries, a sporting club or an athlete have only submitted themselves
to the rules and regulations of a sports organization under the condition that their
competitors are bound exactly the same way. Thus, there is – very different from other
industries – a certain need for the rules and regulations forming the legal basis of the
industry to be applied in a harmonized and consistent manner. Of course one could
debate what tools are most appropriate to achieve consistency; in particular, whether
or not the publication of awards is already sufficient or whether, in addition to this,
there ought to be a closed corpus of jurists deciding these matters at the highest
level. It appears rather obvious, though, that there are no easy and straightforward
solutions and that there is a need for fair debate that takes into account the very
needs of this particular industry.80

D Qualifications of Arbitrators

21 In addition to the requirement of familiarity with sports law and sports, arbitrators
must have a good command of the language of the arbitration;81 this refers to both
oral and written language skills.
22 Moreover, arbitrators must be available during the entire duration of the arbitration
so that it may be expeditiously conducted and completed.82

79 Cf. Oschütz, p. 101.

80 Cf. also Girsberger/Voser, 2016, paras. 1942 et seq. Regarding a possible new scheme that seems
increasingly accepted, see Introduction above, para. 7.
81 Art. R33(2).
82 Art. R33(2), at the end.
 1477

Article R34: Challenge

An arbitrator may be challenged if the circumstances give rise to legitimate doubts
over her/his independence or over her/his impartiality. The challenge shall be
brought within seven days after the ground for the challenge has become known.
Challenges shall be determined by the ICAS Board, which has the discretion to
refer a case to ICAS. The challenge of an arbitrator shall be lodged by the party
raising it, in the form of a petition setting forth the facts giving rise to the challenge,
which shall be sent to the CAS Court Office. The ICAS Board or ICAS shall rule
on the challenge after the other party (or parties), the challenged arbitrator and
the other arbitrators, if any, have been invited to submit written comments. Such
comments shall be communicated by the CAS Court Office to the parties and to
the other arbitrators, if any. The ICAS Board or ICAS shall give brief reasons for its
decision and may decide to publish it.

I PURPOSE OF THE PROVISION

Article R34 deals with a challenge to an arbitrator whose independence or impartiality 1

is questioned by a party.1 The party’s right to challenge an arbitrator’s legitimacy is
an instrument intended to ensure the integrity of the arbitration process.
This provision applies to any arbitrator, i.e., the sole or presiding arbitrator or any 2
co-arbitrator. In addition, it also applies to ad-hoc clerks.2

II CONTENT OF THE PROVISION

A Requirements for Challenge: Legitimate Doubts about Independence

Not every kind, but only legitimate doubts about the independence or impartiality 3
of an arbitrator constitute grounds to challenge an arbitrator.3 Doubts are legitimate
where a reasonable and informed third party would reach the conclusion that there
is a likelihood that the arbitrator may be influenced by factors other than the merits
of the case as presented by the parties (see Art. R33 para. 15).4 Although this test
is an objective one,5 there are no absolute grounds for challenge.

1 This provision corresponds to Art. 180(1)(c) PILS and Art. 367(1)(c) ZPO.
2 Cf. Art. R40.3(3), second sentence.
3 Cf. Art. R34(1), first sentence. In the event a party is of the view that an arbitrator does not
fulfill the qualifications required according to Art. R33(2), the arbitrator may not be challenged
based on Art. R34; however, in such a case, the arbitrator may be removed based on Art. R35,
first sentence.
4 Cf. IBA Guidelines, Part I(2)(c); see also Art. 180(1)(c) PILS.
5 Cf. BGer. 4P.105/2006 para. 4; BGer. 4A_458/2009 para. 3.1; CAS 2002/A/370, L v. IOC, Award
of 29 November 2002, p. 4; Rigozzi, para. 947; De Witt Wijnen, p. 60; IBA Guidelines, Part I(2)
(b).
 1478 Arbitration in Switzerland – The Practitioner’s Guide

4 In questioning the independence of arbitrators, the parties may refer to the IBA
Guidelines (see Art. R33 para. 6).6 However, these guidelines are not legally binding.7

B Time Limit, Form and Procedure for Challenges

5 In principle, the right to challenge a member of the Panel may be invoked at any time
throughout the arbitral proceedings.8 Art. R34, however, holds that the challenge has
to be brought within seven days after the grounds for the challenge have become
known9 or could have become known in case of due diligence.10 This also means
that a party entertaining a certain suspicion as to the independence or impartiality
of an arbitrator is obliged to initiate its own enquiries.11 Keeping grounds for a
challenge “in reserve” is not allowed. The right to challenge an arbitrator expires
after seven days.12 However, it appears that the ICAS (Board) has allowed a late
filing of the challenge in certain circumstances, provided that the person requesting
the challenge acted in good faith.13
6 Even if not expressly stated in the CAS Code, it is acknowledged that a challenge
under Art. R34 may only be made by the parties,14 not by others, in particular not
by the arbitrators.15 The arbitrators only have the option of initiating a removal
procedure under Art. R35.
7 Pursuant to Art. R34(2), second sentence, the challenge must be sent in the form of
a written petition to the CAS Court Office. The latter will then grant the challenged
arbitrator as well as the other arbitrators the possibility to enter observations.16
The challenge will then be forwarded to the ICAS Board, which may decide, at
its discretion, to refer it to the ICAS, i.e., the plenum.17 Challenges fall under the
exclusive competence of the ICAS Board or ICAS, respectively.18 This means that
such a challenge may not be raised before the Panel.19

6 BGer. 4A_506/2007 para. 3.3.2.2; CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/FC Sion,
Award of 31 January 2012, para. 215.
7 BGer. 4A_458/2009 para. 3.3.3.1.
8 Berger/Kellerhals, para. 869.
9 Art. R34(1), second sentence.
10 BGE 129 III 445 para. 4.2.2.1; BGer. 4A_506/2007 para. 3.1.2; BGer. 4A_176/2008 para. 3.3;
Kaufmann-Kohler/Bärtsch, p. 78.
11 Cf. BGer. 4P.188/2001 para. 2c; Berger/Kellerhals, paras. 881–882; Mavormati/Reeb, para. 68.
12 BGer 4A_612/2009 para. 3.1.2, stating that according to the principle of good faith challenges
have to be raised immediately, otherwise the right to challenge is forfeited. Cf. also BGE 129
III 445 para. 3.1.
13 Cf. Mavromati/Reeb, Art. R34, para. 69.
14 Cf. Mavromati/Reeb, Art. R34, para. 75: “the lodging of a petition by a party is […] an admis-
sibility criterion”.
15 Mavromati/Reeb, Art. R34, para. 76.
16 Mavromati/Reeb, Art. R34, para. 62.
17 Art. R34(2), first sentence; see also Mavromati/Reeb, Art. R34, para. 61.
18 This was the express wording of Art. R34(2), first sentence, edition 2012 of the CAS Code. In
the course of the 2013 revision of the CAS Code this express wording was deleted; however,
the exclusive competence is still implied by this provision. See also Art. S6 no. 4.
19 Cf. CAS 2002/A/370, L. v. IOC, Award of 29 November 2002, p. 4; CAS 2011/A/2384 & CAS
2011/A/2386, UCI v. Alberto Contador & RFEC/WADA v. Alberto Contador & RFEC, Award of 6
February 2012, p. 11.
Article R34 CAS Code – Noth/Haas 1479

Upon receipt of a challenge, the ICAS (Board) forwards a copy of the challenge to 8
the other parties and invites them to provide any comments in writing within a
specific time limit.20 This is an expression of the right to be heard. The comments
shall be communicated by the CAS Court Office to the other parties and arbitrators.21
It is then at the discretion of the ICAS (Board) to determine any further appropriate
or necessary procedural steps such as a hearing or telephone conference. When
rendering the decision, the ICAS (Board) succinctly provides “brief reasons” for its
decision.22 The ICAS may decide to publish its decisions on challenge in order to
enhance transparency and predictability.23
The CAS Code does not specify whether arbitral proceedings must be stayed or 9
may be continued while a challenge is pending. The PILS is silent on this issue,
too; whereas the ZPO states that the tribunal, including the challenged arbitrator,
may continue the proceedings and render an award, unless the parties agree to the
contrary.24 In the authors’ view, the tribunal is well advised to balance all interests
at stake and to consider all the circumstances of the case. In particular, the following
factors speak for a continuation of the proceedings: where the challenge appears
unfounded, where the challenge is raised at a late stage of the proceedings (i.e.,
after the hearing), where the parties have agreed on an expedited procedure, or
where there is a special urgency (e.g., regarding participation in an event that takes
place soon). By contrast, if the challenge appears well-founded, if it is raised at
an early stage of the proceedings (i.e., before the hearing), and/or if there is no
special urgency, it is worth waiting until the decision on the challenge is taken. In
any event, if the challenge is successful, the Panel must wait until the challenged
arbitrator is replaced.25

C Decision and its Consequences

The decision of the ICAS (Board) is final, i.e., it is not subject to further review 10
by another committee. No direct appeal against the challenge decision is available
before a state court, either, since the decision of the ICAS Board does not qualify as
an award.26 It is only possible to review the decision in the course of proceedings
to set aside the award within the restricted limits of Art. 190 PILS.27
If the ICAS (Board) concludes that legitimate doubts exist as to the independence 11
or impartiality of an arbitrator, the arbitrator will be replaced pursuant to Art. R36.
The challenged arbitrator’s tasks generally end with the communication of the 12
decision of the ICAS (Board).

20 Art. R34(2), third sentence.

21 Art. R34(2), fourth sentence.
22 Art. R34(2), fifth sentence.
23 Mavromati/Reeb, Art. R34, para. 79.
24 Art. 369(4) ZPO.
25 Cf. Art. R36.
26 Cf. Art. 179(1) PILS; BGE 118 II 359 para. 3b; BGer. 4A_644/2009 para. 1; Mavromati/Reeb,
Art. R34, para. 80; Peter/Freymond, para. 29 at Art. 180 PILS.
27 BGer. 4A_644/2009 para. 1; Beffa, ASA Bull. 2011, p. 602.
 1480

Article R35: Removal

An arbitrator may be removed by the ICAS if she/he refuses to or is prevented
from carrying out her/his duties or if she/he fails to fulfil her/his duties pursuant
to this Code within a reasonable time. ICAS may exercise such power through its
Board The Board shall invite the parties, the arbitrator in question and the other
arbitrators, if any, to submit written comments and shall give brief reasons for its
decision. Removal of an arbitrator cannot be requested by a party.

I PURPOSE OF THE PROVISION

1 Article R35 deals with the removal of an arbitrator who does not fulfill the duties
or requirements contemplated in the CAS Code, including those in Art. R33(2).1 In
case of doubts about the independence of an arbitrator, Arts. R33(1) and R34 apply.

II CONTENT OF THE PROVISION

A Requirements for Removal: Non-fulfillment of Duties

2 According to this provision, various situations justify the removal of an arbitrator, in

particular the following ones:2 First, an arbitrator may be removed if he is not willing
to carry out his duties despite being in a position to do so. Second, an arbitrator
may be removed if he is prevented from carrying out said duties, whether de facto
or de jure. Such situations arise, for example, in the case of illness, imprisonment
or judicial declaration of insanity. Third, an arbitrator may be removed if he carries
out his duties without due care or if he violates his arbitral contract so severely that
the conduct of fair proceedings is jeopardized. Fourth, an arbitrator may be removed
if it turns out that he does not meet the requirements expected from the arbitrators,
for instance, that he has insufficient command of the language of the proceedings.
Fifth, an arbitrator may be removed if he fails to fulfill his duties within a reasonable
time. The phrase “within a reasonable time” was added in the 2012 revision of the
CAS Code, effective as of 1 January 2012, in order to make sure that procedures are
conducted in an expeditious manner. This is in line with Art. 29(1) FC requiring that
any judicial proceedings in Switzerland, including arbitration proceedings, must be
adjudicated within a reasonable time. Removal of arbitrators under the CAS Code
should remain exceptional and only be admitted with good cause.3

B Time Limit, Form and Procedure for Removal

3 Unlike Art. R34, Art. R35 does not provide for any specific time limit to request
removal of an arbitrator. This seems appropriate because the reasons for removal
may vary and require an individual assessment. However, the principle of good
faith defines some limits.4

1 This corresponds to Art. 180(1)(b) PILS and Art. 367(1)(b) ZPO.

2 Cf. Rigozzi, para. 964.
3 Oschütz, p. 121; Berger/Kellerhals, para. 927.
4 Girsberger/Voser, 2016, para. 813. Cf. also Art. 180(2) PILS and Art. 367(2) ZPO.
Article R35 CAS Code – Noth/Haas 1481

In the 2013 revision of the CAS Code, sentence 4 was added to Art. R35. According 4
to this new provision, the removal of an arbitrator cannot be requested by a party.5
However, it remains unclear who may initiate a procedure for removal – is it the other
arbitrators, members of ICAS, the Division President and/or the General Secretary? At
a first glance, the adoption of this new provision seems regrettable because it reduces
the parties’ rights. Certainly, this new provision does not exclude that a party files a
request with the ICAS that it shall examine whether the requirements for the removal
of an arbitrator are met due to some specific reasons. Furthermore, the parties (along
with the other arbitrators) are invited to file comments on the case at stake.6
Removals lie within the sole power of the ICAS, which may delegate its powers to 5
the ICAS Board.7 This power is exclusive although the wording of Art. R35 does
not say so explicitly. Thus, such a challenge may not be raised before the Panel.
The ICAS (Board) shall, in writing, invite the other parties, the arbitrator in ques- 6
tion and the other arbitrators to comment in writing with respect to the removal in
question.8 This is an expression of the right to be heard. Once it has decided upon
the issue, the ICAS (Board) shall provide brief grounds for its decision.9
The CAS Code does not specify whether the arbitral proceedings must be stayed 7
or may be continued while an examination of the requirements for removal is
pending. As in the case of a challenge to an arbitrator, the tribunal is well advised
to balance all interests at stake and consider all the circumstances of the case. The
following speaks for a continuation of the proceedings: where the request appears
unfounded, where the request is raised at a late stage of the proceedings (i.e., after
the hearing), where the parties have agreed on an expedited procedure or where
there is a special urgency (e.g., regarding participation in an event). By contrast, if
the request appears well-founded, if it is raised at an early stage of the proceedings
(i.e., before the hearing), if the examination of the requirements for removal appears
to last only short time, and/or if there is no special urgency, it is worth waiting until
the decision on the request is taken. In any event, if the request is admitted, the
Panel must wait until the arbitrator thus removed has been replaced.10

C The Decision and its Consequences

The decision of the ICAS (Board) on removal is final, like the decision on a challenge 8
pursuant to Art. R34.11
Where an arbitrator is removed based on Art. R35, said arbitrator shall be replaced 9
in accordance with the provisions applicable to his appointment.12
The arbitrator’s tasks generally end with the communication of the decision of the 10
ICAS (Board).

5 Mavromati/Reeb, Art. R35, para. 12.

6 Mavromati/Reeb, Art. R35, para. 12.
7 Art. R35, second sentence. See also Art. S6 No. 4; cf. also Mavromati/Reeb, Art. R35, para.10.
8 Art. R35, third sentence.
9 Art. R35, third sentence at the end; cf. Art. R34(2), fifth sentence.
10 Cf. Art. R36, para. 11 below.
11 Cf. Art. R34, para. 10 above.
12 Art. R36.
 1482

Article R36: Replacement

In the event of resignation, death, removal or successful challenge of an arbitrator,
such arbitrator shall be replaced in accordance with the provisions applicable to
her/his appointment. If, within the time limit fixed by the CAS Court Office, the
Claimant/Appellant does not appoint an arbitrator to replace the arbitrator it had
initially appointed, the arbitration shall not be initiated or, in the event it has been
already initiated, shall be terminated. Unless otherwise agreed by the parties or
otherwise decided by the Panel, the proceedings shall continue without repetition
of any aspect thereof prior to the replacement.

I PURPOSE OF THE PROVISION

1 Article R36 governs the replacement of an arbitrator due to his resignation, death,
successful challenge or removal and establishes rules regarding the proceedings
following such a replacement.

II CONTENT OF THE PROVISION

A Grounds for Replacement

2 The provision mentions four grounds for replacement: resignation, death, successful
challenge and removal. However, this list is not exhaustive, i.e., there are also other
grounds for replacing an arbitrator, in particular revocation.
3 The CAS Code contains specific rules regarding the challenge and removal of an
arbitrator,1 but not concerning the death or resignation of an arbitrator. Art. R36
instead implies that an arbitrator’s mandate may also be terminated for other
reasons, such as death or resignation. Some aspects of these forms of termination
are worth pointing out:

1 Resignation

4 Where the initiative to terminate the arbitrator’s mandate comes from the arbitrator
himself, one speaks of the resignation of an arbitrator.2 Both Chapter 12 of the PILS
and Part 3 of the ZPO are silent on the issue of an arbitrator’s resignation. In line
with international arbitration3 and the Swiss Federal Supreme Court’s case law,4 and
absent any specific agreement between the parties, the resignation of an arbitrator
from ongoing arbitration proceedings in the CAS should be admissible only in
exceptional circumstances, i.e., for good cause shown (wichtiger Grund). In particular,
considering that arbitrators have to be chosen from a closed list and that it might be
difficult to find someone both capable and available, it is important not to approve
good cause too readily. Good cause criteria include, among others, serious health

1 Cf. Arts. R34 and R35.

2 Mavromati/Reeb, Art. R36, para. 5.
3 Berger, ASA Bull. 2002, pp. 12–14; Bucher, ASA Bull. 2002, p. 419; Mavromati/Reeb, Art. R36,
paras. 9 et seq.
4 BGE 117 Ia 166 para. 6c.
Article R36 CAS Code – Noth/Haas 1483

problems or other exceptional circumstances that make it, objectively, extremely

difficult or impossible for the arbitrator to continue the mandate.5 In addition, it
is generally recognized that the fact of being challenged by a party justifies the
arbitrator’s resignation.6 Moreover, resignation can be admitted if both parties agree
to it. However, even if an arbitrator resigns without just cause, the other arbitrators
cannot continue the arbitration proceedings as a “truncated arbitral tribunal”, without
the prior consent of the parties.7 The absence of the parties’ consent is a ground
for the annulment of a “truncated” tribunal’s award according to Art. 190(2)(a)
PILS.8 No issues of a “truncated arbitral tribunal” arise where an arbitrator’s offer
to resign has been refused by the CAS without the arbitrator opposing such refusal.9
Under Art. R36, the replacement of an arbitrator may result not only from the 5
arbitrator’s resignation for good cause, but also if good cause is found lacking.10
However, a distinction is to be made between an arbitrator’s resignation and a
situation where an arbitrator, though not formally resigning, refuses to cooperate
or obstructs the proceedings by refusing to participate in the deliberations of the
tribunal without valid grounds. In situations such as this, the arbitral tribunal
remains regularly constituted and the uncooperative arbitrator cannot prevent the
continuation of the proceedings.11
In the event of a resignation, it seems appropriate to assume that the arbitrator’s 6
tasks only end upon the formal confirmation of the notice of resignation by the
ICAS (Board).12

2 Death

In case of an arbitrator’s death, his or her task ends eo ipso. Replacement proceed- 7
ings may begin as soon as the death has been verified and confirmed. In case an
arbitrator is reported missing, the further course of proceedings must be decided
on a case-by-case basis.

3 Revocation

An arbitrator must also be replaced if the parties have agreed to revoke his mandate 8
(revocation or dismissal);13 for instance, because all parties have lost confidence in
the arbitrator or because said arbitrator has obviously become incapable of fulfilling
his functions. Likewise, the fact that one party’s challenge against an arbitrator is
accepted by the opposing party amounts to an agreement on revocation.

5 Berger/Kellerhals, para. 935; Girsberger/Voser, 2016, paras. 787 et seq.

6 Cf. e.g. CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/FC Sion, Award of 31 January 2012,
para. 96.
7 BGer. 4A_386/2010 para. 4.3.1.
8 BGer. 4A_386/2010 para. 4.3.1.
9 BGer. 4A_386/2010 para. 4.3.2.
10 BGE 117 Ia 166 para. 6c; nuanced Berger/Kellerhals, para. 944; contra: Girsberger/Voser, 2016,
para. 792.
11 BGE 128 III 234 para. 3b/aa; see also Mavromati/Reeb, Art. R36, para. 11.
12 As the ICAS (Board) is competent for challenges and removals (cf. Art. R34 para. 7 above and
Art. R35 para. 5 above), it is also competent for the confirmation of such notice of resignation.
13 Cf. Art. 179(1) PILS.
 1484 Arbitration in Switzerland – The Practitioner’s Guide

9 The agreement on revocation is not subject to any formal requirements.14 However, in

order to avoid any misunderstanding it is recommended to conclude such agreement
expressly and in writing. In the authors’ view the agreement on revocation does not
require the acceptance by the CAS/ICAS as the parties’ preference takes priority.15
The dismissed arbitrator himself is not entitled to any legal remedies against his
revocation by the parties’.16
10 In the event of revocation, the arbitrator’s task ceases upon formal communication
of the parties’ revocation by the ICAS (Board)

B Replacement Procedure

11 Neither Chapter 12 of the PILS nor Part 3 of the ZPO nor the CAS Code provide for
the stay of arbitral proceedings during the replacement procedure. As the arbitral
tribunal is not properly constituted as long as the seat of an arbitrator remains
vacant, the arbitration proceedings must be suspended until the replacement
has been successfully completed by the appointment of a substitute arbitrator.17
Otherwise, any procedural act by such an incomplete tribunal may subsequently
be challenged on grounds of irregular composition of the tribunal.18 Only where
both parties expressly agree that the remaining arbitrators should carry on with the
conduct of the arbitration, is a continuation of the proceedings lawful and proper.19
12 According to Art. R36, first sentence, the replacement of an arbitrator shall be
performed “in accordance with the provisions applicable to his appointment”. This
would appear to mean that the new arbitrator ought to be appointed in accordance
with Arts. R40 and R53-R54. Although this is, in principle, correct, an overly strict
application of said rule may not be appropriate in each case. For instance, in cases
where a party-appointed co-arbitrator has been revoked or has resigned the mandate
without good cause, it is not necessarily justified for the party who appointed the
original co-arbitrator to be entitled to reappoint the new arbitrator. Therefore, it is
crucial to consider and accommodate the case-specific context and reasons for a
replacement and to depart from the rule if necessary.

C Consequences of Replacement

13 In principle, once the new arbitrator has been appointed, proceedings shall continue
without repetition of any procedural steps and actions taken by the Panel prior to
the replacement.20 The rationale for this rule is mainly to avoid additional costs and
procedural delays. However, the Panel must depart from this rule if both parties
prefer to repeat certain parts of the proceedings. The same applies if a repetition is

14 Berger/Kellerhals, paras. 920–921; Girsberger/Voser, 2016, para. 803.

15 This seems to be in line with most other arbitration rules that address this question, e.g. Art.
10(4) LCIA Rules, Art. 15(4) SCC Rules or Art. 8(3) ICDR Rules; contra Art. 15(1) 2012 ICC
Rules.
16 Berger/Kellerhals, para. 923; Girsberger/Voser, 2016, para. 805.
17 Berger/Kellerhals, para. 952; Girsberger/Voser, 2016, para. 790.
18 Art. 190(2)(a) PILS; BGE 117 Ia 166 para. 6c; Berger/Kellerhals, para. 952.
19 Cf. BGer. 4A_386/2010 para. 4.3 asking, but not answering this question.
20 Art. R36, second sentence.
Article R36 CAS Code – Noth/Haas 1485

needed for the new arbitrator to be able to meet the requirements of his function.21
This may be true, in particular, if the replacement occurs after the hearing was
held. Absent any agreement by the parties, the better arguments speak in favor of
repeating this procedural step in order to allow the new arbitrator to fully exercise
his or her function.22 In any event, all interim, interlocutory or partial awards issued
prior to the replacement of the arbitrator remain valid and bind the new arbitrator
as well.23 In the event of a repetition, the parties should not be allowed to adduce
new evidence, unless all parties agree otherwise.

21 Cf. also Mavromati/Reeb, Art. R36, para. 15.

22 See also in more detail Mavromati/Reeb, Art. R36, paras. 21, 23.
23 Mavromati/Reeb, Art. R36, para. 15.
 1486

Article R37: Provisional and Conservatory Measures

No party may apply for provisional or conservatory measures under these Procedural
Rules before all internal legal remedies provided for in the rules of the federation
or sports-body concerned have been exhausted.
Upon filing of the request for provisional measures, the Applicant shall pay a
non-refundable Court Office fee of Swiss francs 1’000.–, without which CAS shall
not proceed. The CAS Court Office fee shall not be paid again upon filing of the
request for arbitration or of the statement of appeal in the same procedure.
The President of the relevant Division, prior to the transfer of the file to the Panel, or
thereafter, the Panel may, upon application by a party, make an order for provisional
or conservatory measures. In agreeing to submit any dispute subject to the ordinary
arbitration procedure or to the appeal arbitration procedure to these Procedural
Rules, the parties expressly waive their rights to request any such measures from
state authorities or tribunals.
Should an application for provisional measures be filed, the President of the relevant
Division or the Panel shall invite the other party (or parties) to express a position
within ten days or a shorter time limit if circumstances so require. The President
of the relevant Division or the Panel shall issue an order on an expedited basis
and shall first rule on the prima facie CAS jurisdiction. The Division President
may terminate the arbitration procedure if he rules that the CAS clearly has no
jurisdiction. In cases of utmost urgency, the President of the relevant Division,
prior to the transfer of the file to the Panel, or thereafter the President of the Panel
may issue an order upon mere presentation of the application, provided that the
opponent is subsequently heard.
When deciding whether to award preliminary relief, the President of the Division
or the Panel, as the case may be, shall consider whether the relief is necessary
to protect the applicant from irreparable harm, the likelihood of success on the
merits of the claim, and whether the interests of the Applicant outweigh those of
the Respondent(s).
The procedure for provisional measures and the provisional measures already
granted, if any, are automatically annulled if the party requesting them does not file
a related request for arbitration within 10 days following the filing of the request
for provisional measures (ordinary procedure) or any statement of appeal within
the time limit provided by Article R49 of the Code (appeals procedure). Such time
limits cannot be extended.
Provisional and conservatory measures may be made conditional upon the provi-
sion of security.

I PURPOSE OF THE PROVISION

1 In sports arbitration, even the most expedited procedures may not always keep pace
with the tight schedule of competitions, exposing parties to uncertainty in the interim
before a final award. Art. R37 enables the CAS to order the provisional measures
Article R37 CAS Code – Rigozzi/Hasler 1487

that may be necessary to temporarily protect the parties’ rights or to regulate the
situation between them pending the outcome of the proceedings.
Article R37 principally deals with jurisdictional issues (II.). It is silent with respect 2
to the types of provisional measures the CAS may order (III.), but since the 2013
revision it specifies the substantive and procedural requirements that must be
met for such measures to be granted (IV. and V.). The other issues that should be
addressed briefly in connection with interim relief orders made by the CAS are the
handling of the costs related to these orders, whether they are subject to appeal and
the modalities of their enforcement (VI.).

II JURISDICTION – AUTHORITY TO ORDER PROVISIONAL MEASURES

A The Legal Basis for CAS Jurisdiction

Under Swiss law, both Art. 183(1) PILS (applying to international arbitrations) and 3
Art. 374(1) ZPO (applying to domestic arbitrations) recognize arbitral jurisdiction
to order provisional measures, unless the parties provide otherwise. Art. R37 con-
firms that CAS arbitrators can order provisional and conservatory measures. It also
provides that such measures may be ordered by the arbitral institution pending the
constitution of the panel (B.) and that by submitting their dispute to CAS arbitration
the parties are deemed to have waived their right to request such measures from
the state courts (C.).

B Provisional Measures Prior to the Constitution of the Panel

Article 183(1) PILS provides (as does Art. 374(1) ZPO) that the “arbitral tribunal 4
may […] order provisional [or conservatory] measures”, which can be taken to imply
that until the moment the arbitral tribunal is constituted, jurisdiction to issue such
orders lies exclusively with the state courts.1 For its part, Art. R37 (third paragraph)
of the CAS Code provides for “CAS jurisdiction” to order provisional measures even
before the constitution of the panel as it grants the authority to order such measures
to “the President of the relevant [CAS] Division” until the file is transferred to the
panel. Up until the 2010 edition of the Code, provisional measures could only be
requested as from the filing of the Request for arbitration (Art. R38) or the Statement
of Appeal (Art. R48). As amended in the following (2013) edition, Art. R37’s first
paragraph’s wording now conveys that requests for provisional measures can be
made immediately after the notification of a final decision by a sports federation,
even before the filing of an appeal with the CAS, the only requirement being the
exhaustion of “all internal legal remedies provided for in the rules of the federation
or sports-body concerned”.
Although the President of the relevant CAS division is clearly not an “arbitral 5
tribunal” within the meaning of Art. 183(1) PILS and Art. 374(1) ZPO, it is generally
accepted that the parties are free to confer the power to order interim measures
on the arbitral institution. The same principle underlies provisions such as Art. 29
(2012) ICC Arbitration Rules, establishing the so-called “Emergency Arbitrator”

1 See Boog, above commentary on Art. 183 PILS (Chapter 2, Part II), paras. 27–28.
 1488 Arbitration in Switzerland – The Practitioner’s Guide

procedure.2 It is submitted that the President of the relevant CAS Division can be
considered sufficiently independent from the parties to order provisional measures.3
6 An important question raised by Art. R37 is whether a party can seek an order for
interim relief from the panel after a request to that effect was dismissed by the Divi-
sion President. The chance to get a “second bite at the apple” is relevant, especially
in sports disputes, since a decision dismissing a request for provisional measures
may in fact result in the disposal of the entire dispute.4 CAS panels have been quite
reluctant to reconsider applications that had already been dismissed by the Division
President, unless the applicant could show that there had been new developments
since that decision5 or if important facts which existed at the time of the decision
were unknown to the applicant.6 Absent such circumstances, CAS panels tend to
consider that hearing the same application again would effectively turn the panel into
an appeal body reviewing the decisions of the Division President. It is submitted that
since decisions on provisional measures are mere procedural orders,7 this approach
is too rigid. If, for instance, the application was originally dismissed on the ground
that the applicant’s interests were found not to outweigh those of the other parties
involved, and the panel were to disagree with such an assessment of the balance of
interests, there would be no reason to prevent the panel from ordering the provisional
measures sought by the applicant.8 The panel should in any event remain free to
lift any provisional measures ordered by the Division President if it subsequently
finds that the relevant prerequisites were not met or are no longer satisfied. After
all, the panel will be in a much better position to assess the chances of success of
the claim on the merits. More generally, a party could also argue that the reference
to the “arbitral tribunal” in Art. 183 PILS and Art. 374 ZPO grants a statutory right
to have an application for provisional measures heard by the panel itself.

C Waiver of the Concurrent Jurisdiction of State Courts in Appeals

Proceedings

7 It is unanimously accepted that under Art. 183 PILS (and Art. 374 ZPO) arbitral
tribunals and state courts have concurrent jurisdiction to grant interim measures.
According to Art. R37 (third paragraph), 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. Originally, this waiver was limited to appeals

2 For a commentary on this provision, cf. Boog, Chapter 17 below (Part II), Art. 29 ICC Rules.
3 The reservation made in the previous edition of this commentary, noting that it would be
preferable for the then President of the Appeals division (who also served as an IOC Vice
President) to step down and have his deputy decide the application in cases involving the IOC,
no longer applies given that, according to her CV, the current Division President does not sit on
the board of a sports-governing body (<http://www.tas-cas.org/en/icas/the-board.html>).
4 Rigozzi, Provisional Measures, p. 220. For example (in a ‘reverse’ scenario), the Italian Cycling
Federation dropped arbitration proceedings against the Italian rider Roberto Menegotto after the
CAS provisionally lifted his suspension due to manifest procedural irregularities (CAS 97/169,
Menegotto v. FIC, Order of 15 May 1997, CAS Digest I, p. 539).
5 CAS 2005/A/916, AS Roma v. FIFA, Order of 23 August 2005, p. 3, para. 4.
6 CAS 2005/A/916, AS Roma v. FIFA, Order of 23 August 2005, p. 3, paras. 10–11.
7 Meaning that – by definition – they do not dispose of claims and defenses in a final manner,
can be revoked or amended at any time, and thus are not binding on the tribunal (BGE 136 III
200 para. 2.3.1).
8 Cf. also Mavromati/Reeb, Art. R37, para. 16 in fine, expressing their agreement with this point
of view.
Article R37 CAS Code – Rigozzi/Hasler 1489

proceedings, but the 2013 version of the Code extended it to ordinary arbitration
proceedings. The scope of the waiver has also been expanded (ratione temporis) in
connection with appeals proceedings, since, as just seen, the CAS now has jurisdic-
tion to hear requests for provisional measures as from the notification of the decision
under appeal. This change was meant to prevent parties from circumventing the
waiver by seizing the state courts before the expiry of the time limit for appeal and
then relying on the perpetuatio fori principle.9
Is such a waiver of the parties’ right of access to the state courts valid and enforceable? 8
That is, can a party challenge the jurisdiction of the state courts relying on Art. R37?
The short answer to this question is yes, as it is generally accepted that, at least in
international arbitration, the parties can validly agree to exclude the jurisdiction
of state courts even for provisional measures.10 Commentators consider that, to
be valid, the waiver must be “explicit and specific”.11 Art. R37 (third paragraph)
is both explicit and specific.12 As far as CAS ordinary proceedings are concerned,
the waiver does not appear to be problematic. The issue is more complicated with
respect to CAS appeals proceedings as the waiver forms part of the rules imposed
by the sports-governing body. It is submitted that the enforceability of Art. R37’s
waiver is not impaired by the fact that it is non-consensual in nature. In other
words, the case law developed by the Swiss Federal Supreme Court with respect
to waivers under Art. 192 PILS does not apply to Art. R37’s waiver of state courts’
jurisdiction to hear requests for provisional measures.13 Indeed, while the waiver
of the parties’ right to file an action to set aside before the Supreme Court deprives
them of the only remedy available against the arbitral award, a waiver of the right
to request provisional measures in state courts constitutes in fact the selection of
one particular remedy (recourse to the CAS) in a setting where the parties have a
choice between alternative remedies (the CAS or the national courts). Accordingly,
it is submitted that while the waiver of state court jurisdiction to issue provisional
measures is valid as such, it is enforceable only to the extent that it does not deprive

9 This is in effect what FC Sion attempted to do in the judicial saga opposing it to FIFA, the ASF
and UEFA before the Vaud and Valais courts between 2011 and 2012. For an account of these
various proceedings and the issues raised by them see Anderson, The FC Sion Case and its
Effects, Part One, World Sports Law Report May 2012, pp. 8–10, and Id., The FC Sion Case and
its Effects, Part Two, World Sports Law Report, June 2012, pp. 8–11.
10 Cf., e.g., Kaufmann-Kohler/Rigozzi, paras. 6.105–6.108, with further references.
11 Von Segesser/Boog, p. 125.
12 Cf. Patocchi, Provisional Measures, p. 68. For a more in-depth discussion of the formal require-
ments for a valid waiver of the courts’ concurrent jurisdiction to grant interim relief (noting in
particular that much depends on the requirements for an agreement to be deemed ‘express’),
cf. Haas/Donchi, pp. 106–114.
13 See Baizeau, above commentary on Art. 192 PILS (Chapter 2, Part II), paras. 30–33. If one
were to apply such case law to Art. R37, then the waiver would be unenforceable because it
would qualify as an indirect waiver, i.e., a waiver contained in the arbitration rules and not in
the arbitration agreement or a separate agreement between the parties, (cf. BGer. 4P.62/2004
para. 1.2 (Federación costarricense de triatlón (FECOTRI) v. ITU & CNOC), ASA Bull. 2005, p.
485), but also because, despite the wording of Art. R37, the athlete cannot be considered as
having consented to (CAS) arbitration and thus to Art. R37 of the Code (cf. BGer. 4P.172/2006
(X. (Cañas) v. ATP Tour), partially reproduced in BGE 133 III 235; ASA Bull. 2007, p. 592; Swiss
Int’l Arb.L.Rep2007, p. 65). However, for the reasons outlined in this short commentary, the
waiver of state court jurisdiction to set aside an award is different in nature from the waiver
of state court jurisdiction to hear applications on provisional measures.
 1490 Arbitration in Switzerland – The Practitioner’s Guide

a party of the protection that is offered by the state courts or, to put it otherwise, only
to the extent that arbitration is capable of providing effective relief.14
9 Of course, state courts will consider declining their jurisdiction only if the respondent
objects to it on the ground that it has been validly waived under Art. R37. In such
cases, the state courts should, as a matter of principle, decline jurisdiction and invite
the applicant to file his request with the CAS. This is what the District Court of
Zurich did in a decision of 16 August 2005 in the matter of Dorthe v. IIHF, giving full
deference to the waiver in Art. R37 despite the fact that the applicant was challenging
the jurisdiction of the CAS.15 More recently, the validity of the waiver was upheld by
the High Court of the Canton of Berne in the FC Sion v. ASF case – a domestic case
decided under Art. 374 ZPO – on the ground that party autonomy plays a paramount
role in arbitration and that the CAS meets the constitutional requirement of effective
relief (“Anspruch auf effektiven Rechtsschutz”) also with respect to provisional
measures, as it is a permanent arbitration institution, which can issue provisional
measures even pending the constitution of the arbitral tribunal.16 We agree with
these decisions inasmuch as they consider that the waiver is valid as such, but,
as mentioned, would submit that the waiver should be declared unenforceable if
one party can establish that the CAS system is, under the circumstances, not in a
position to provide effective relief.17
10 One scenario in which a state court could consider that the waiver is unenforceable is
when the applicant asserts that the CAS will not be in a position to grant the requested
relief in time.18 It is submitted that this argument should not prosper generally, as
the CAS has shown that it is capable of notifying all the relevant parties by fax and
that, by granting very short time limits, it can decide within days if not hours.19
Moreover, the CAS has the power to issue ex parte orders if needed.20
11 In reality, the only instances in which state courts should assert jurisdiction despite
the waiver contained in Art. R37(3) are those where it is clear that only they have

14 In similar terms, see now also Mavromati/Reeb, Art. R37, para. 13.
15 In its decision of 16 August 2005, the District Court of Zurich declined jurisdiction to order
provisional measures in a matter that, according to the respondent, should have been decided
by the CAS in the framework of appeals proceedings. The Court held that since the CAS Code
granted CAS the jurisdiction to order provisional measures within the meaning of Art. 183(1)
PILS, the request was inadmissible.
16 Decision by the Obergericht of the Canton of Bern of 19 April 2012, reported in CaS 2012, p.
171, setting aside the lower decision by the Regionalgericht Bern-Mittelland (CIV 12 75 WUN
of 14 February 2012, paras. 26 and 29, reported in CaS 2012, p. 79).
17 For a detailed analysis of these decisions and the waiver issue in general, see Rigozzi/Robert-
Tissot, “Consent” in Sports Arbitration: Its Multiple Aspects, ASA Special Series n°41, Sports
Arbitration : A coach for Other Players, 2015, pp. 83–93.
18 This is why, for instance, the Munich Oberlandesgericht held, in the well known Stanley Roberts
case, that the waiver did not operate to preclude the jurisdiction of the courts, particularly when
the CAS could not offer swift relief. However, it must be emphasized that this ruling was made
on the basis of the (inaccurate) submission by the respondent party (FIBA) that the CAS was
“capable of issuing a decision within 15 days”, which the Munich court found to be much too
slow, OLG München, Judgment of 26 October 2000, U (K) 3208/00, SpuRt 2/2001, p. 65.
19 Cf. below, paras. 39 and 40. As an example where orders for provisional measures were issued
by the CAS, upon hearing both parties, by the following day, cf., e.g., CAS 2014/A/3744, N. v.
FIFA, Order of 26 September 2014.
20 Cf. below, paras. 37–39, and Haas/Donchi, p. 104. This in turn raises the delicate question
whether state courts should address the issue sua sponte when they are seized with an ex parte
request (on this question, see also Haas/Donchi, p. 113).
Article R37 CAS Code – Rigozzi/Hasler 1491

the authority to issue and/or, if necessary, the power to enforce the order that is
being sought. However, contrary to what was held by the lower court in the above-
mentioned FC Sion v. ASF (domestic) case, the fact that formally the CAS does not
have the power to enforce its own orders is not decisive. While it is true that in
domestic cases the enforcement of CAS orders through the state courts (Art. 374(2)
ZPO) may appear as an “unnecessary roundabout way”,21 in international cases such
a “detour” through the local courts will be almost inevitable – in theory – each time
that an order (whether issued by a (foreign) court or by the CAS) must be enforced
abroad.22 This is why the fact that the sports-governing bodies generally comply
voluntarily with CAS orders23 is of pivotal importance, particularly in international
matters. Accordingly, it is submitted that a state court should assert jurisdiction only
if the applicant can establish that, under the circumstances, it is very unlikely that
the respondent will spontaneously comply with the CAS order.24

III TYPES OF PROVISIONAL MEASURES AVAILABLE

The types of interim measures that an arbitral tribunal can order are primarily 12
determined by the lex arbitri and the procedural rules agreed upon by the parties.
Arts. 183 PILS and 374 ZPO, as well as R37 of the CAS Code do not specify or
restrict in any way the types of provisional measures tribunals can order. Therefore,
it is generally accepted that the CAS, just as arbitral tribunals in general, has wide
discretion in this respect and may order any measures it deems appropriate in a
particular case, subject to any limitations set forth in the parties’ agreement and
mandatory provisions of law.25
Swiss law customarily distinguishes between three non-exhaustive categories of 13
provisional measures: (i) conservatory measures (“Sicherungsmassnahmen”, “
mesures conservatoires”), aimed at maintaining the status quo during the arbitration
proceedings so as to secure the enforcement of the final award, including measures
to safeguard evidence, (ii) regulatory measures (“Regelungsmassnahmen”, “ mesures
de réglementation”), aimed at regulating the relationship between the parties pending

21 Regionalgericht Bern-Mittelland, Decision CIV 12 75 WUN of 14 February 2012, para. A. 26

(speaking of an “unnötigen Umweg”).
22 Cf. also Haas/Donchi, p. 105.
23 See Mavromati/Reeb, Art. R37, para. 53, stating that “in almost 30 years from the CAS’ creation,
the CAS has never had problems concerning the non-execution/non-compliance with an order
granting provisional measures”.
24 Tribunal Cantonal, canton de Vaud, Order CM11.033798 of 27 September 2011, pp. 15–16. In
this second decision related to the above- mentioned FC Sion v. UEFA dispute, the Vaud court
held that the exclusion of the jurisdiction of state courts “could result in practical difficulties
that may be hard to overcome”, and that there was an actual risk that UEFA, “which did not
comply with the [Vaud court’s] ex parte order on provisional measures, may maintain the
same stance, meaning that enforcement measures may be required; in this respect, while the
CAS is vested with the necessary jurisdictio, it does not possess the imperium required to
order such measures [reference omitted] and would thus have to request the assistance of the
courts, which in turn may delay the proceedings to an extent that is hardly compatible with
the requirement of expeditiousness which is inherent to applications for interim relief” (loose
translation from the French original). As an aside, the unfolding of this case has shown that
the courts’ power to decide that non-compliance with their orders shall constitute a criminal
offence provides no guarantee that the relevant sports-governing bodies will indeed abide by
the said orders, let alone do so without delay.
25 Boog, Interim Measures, p. 432.
 1492 Arbitration in Switzerland – The Practitioner’s Guide

the final award, and (iii) so-called performance measures (“Leistungsmassnahmen”,

“mesures d’exécution anticipée provisoires”), aimed at obtaining the enforcement on
an interim basis of all or a portion of the claim on the merits.26 In sports disputes,
the stay of a decision under appeal is the most commonly requested provisional
measure. When it is aimed at authorizing an athlete or a club to participate in a
competition, this measure is not only conservatory and regulatory in nature, but
also, to some extent, akin to interim performance.
14 An order for interim performance directing the payment of a sum of money is not
available in the CAS as it would be tantamount to a freezing order (Arrest, séquestre),
a measure that is only within the competence of the state courts.27 On the other hand,
in appeals proceedings, there is no need to file a request to stay monetary decisions
issued by the relevant sports-governing body (e.g. a decision condemning a player
or a club to pay a certain amount): the request would in any event be dismissed,
as the CAS has consistently held that under Swiss law pecuniary claims cannot be
enforced by the competent Swiss authorities as long as an appeal on the merits is
pending.28

IV (SUBSTANTIVE) PREREQUISITES FOR GRANTING PROVISIONAL

MEASURES

15 Since the Code’s 2013 revision, Art. R37(5) enunciates the prerequisites to be
satisfied in order for the CAS to grant interim relief, which were developed in the
CAS case law,29 in line with the criteria stipulated in Art. 14(2) of the CAS Ad Hoc
Division Rules,30 but also the practice generally followed in international commercial
arbitration.31 Art. R37(5) provides that an order for provisional measures can be
granted where the applicant is at risk of irreparable harm (A.), there is a likelihood
that the claim will succeed on the merits (B.), and the balance of the interests at
stake tips in favor of the applicant (C.).
16 The CAS jurisprudence consistently states that these three prerequisites are cumu-
lative.32 However, it also makes room for some flexibility, in that the CAS will

26 BGE 136 III 200 para. 2.3.2.

27 CAS 2011/O/2545, P. Calcio v. S., Order of 26 October 2011, paras. 33–41.
28 CAS 2004/A/780, Maicon Henning v. Prudentopolis & FIFA, Order of 6 January 2005, p. 10,
paras. 6.1–6.3; CAS 2011/A/2433, D. v. FIFA, Order of 1 June 2011, p. 4, paras. 13–14, noting
that in order to be stayed, a decision must be enforceable (“pour être suspendue, une decision
doit être executable”), which is not the case of a monetary order in an award subject to appeal.
See also CAS 2011/A/2543, Gymnova v. FIG, Order of 14 November 2011, para. 8, with further
references; CAS 2014/A/3765, Club X. v. D. & FIFA, Order of 17 November 2014, paras. 5.3–5.5.
29 See, among many others, CAS 97/169, Menegotto v. FIC, Order of 15 May 1997, CAS Digest I,
p. 540, para. 1.
30 The CAS Ad Hoc Division Rules comprise the set of special procedural rules which are adopted
(with slight amendments from one edition to the next) to apply to disputes arising during
important international competitions, such as the Olympic Games and the Commonwealth
Games. Art. 14(2) CAS Ad Hoc Rules provides that: “when deciding whether to award any
preliminary relief, the President of the ad hoc Division or the Panel, as the case may be, shall
consider whether the relief is necessary to protect the applicant from irreparable harm, the
likelihood of success on the merits of the claim, and whether the interests of the applicant
outweigh those of the opponent or of other members of the Olympic Community”.
31 Cf. Patocchi, Switzerland, p. 903, referring to “general principles of civil procedure”.
32 See, ex multis, CAS 98/200, AEK PAE & SK Slavia v. UEFA, Order of 17 July 1998, pp. 10–11,
para. 41. More recently, CAS 2011/A/2473, A. Club v. Saudi Arabian Football Federation (SAFF),
Article R37 CAS Code – Rigozzi/Hasler 1493

generally take all the circumstances of the case into account when considering the
application. As a result, although each of the prerequisites is relevant, any one of
them may be decisive on the facts of a given case.33 In other words, the CAS “retains
the measure of discretion necessary to evaluate the situation in a comprehensive
manner, using the above-mentioned requirements as guidance, it being understood
that the strict application of fixed criteria is neither desirable nor useful, as it may
give rise to more difficulties than it will actually resolve in terms of predictability”.34

A Irreparable Harm

Irreparable harm is defined as any damage that cannot be fully compensated if the 17
applicant succeeds on the merits.35 Despite the inevitably fact-specific nature of
irreparable harm, it is possible to identify some common lines of reasoning with
regard to this notion in the jurisprudence of the CAS.
Suspensions or bans partially served before the hearing on the merits frequently 18
satisfy the irreparable harm prerequisite. For instance, denying a football player the
opportunity to play during four months due to a suspension would cause irreparable
harm if the appointed panel were to subsequently set aside the suspension.36 The
CAS acknowledges that the months lost to a suspension can never be recovered
and that the impact of disciplinary suspensions is compounded by the relative
brevity of most athletic careers.37 In this respect, it seems clear that the risk of
irreparable harm will be deemed established if an athlete is at risk of serving the
entire period of suspension before an award is rendered on the merits of his or her

Order of 17 June 2011, p. 5, para. 6.3, with the references, and CAS 2014/A/3642, Erik Salkic
v. Football Union of Russia & PFC Arsenal, Order of 5 August 2014, para. 27. For this reason,
there are a number of decisions (in particular the more recent ones) where the Division
President or the Panel, having established that the application failed to meet one of the three
substantive prerequisites, stated that, for reasons of procedural economy it would dispense
with the analysis of the other two (cf., e.g., CAS 2014/A/3765, Club X. v. D & FIFA, Order of
17 November 2014, para. 5.8).
33 CAS OG 02/004, COA v. ISU, Order of 14 February 2002, CAS Digest III, p. 593. More recently,
cf., e.g., CAS 2015/A/4259, R. v. FIM, Order of 26 November 2015, para. 52.
34 Cf., e.g., CAS 2011/A/2489, P. et al. v. FIFA, Order of 8 July 2011, pp. 7–8, para. 25, loose
translation from the French original. More recently, see, e.g., CAS 2014/A/3541, B. v. FIFA,
Order of 13 May 2014, para. 5.3.
35 CAS 2006/A/1141, M.P. v. FIFA & PFC Krilja Sovetov, Order of 31 August 2006, p. 6, para. 19,
citing BGE 126 I 207 para. 2. As noted in CAS 2014/A/3541, N. v. FIFA, Order of 13 May 2014,
paras. 5.5–5.14, the notion of irreparable harm within the meaning of Art. R37(5) of the Code is
specific to the CAS rules and must be interpreted in line with CAS jurisprudence, not by reference
to the case law of the state courts dealing with analogous requirements. While conceptually
appealing, this distinction should not be overstated as it is obvious that the underlying issues
are very similar. Indeed, in numerous cases the CAS has referred to the case law of the Swiss
Supreme Court on the definition of irreparable harm (cf., e.g., CAS 2012/A/2862, FC Girondins de
Bordeaux v. FIFA, Order of 20 August 2012, para. 22, with further references; CAS 2012/A/3031,
Katusha Management v. UCI, Order of 25 January 2013, para. 6.6).
36 CAS 2003/O/482, Ortega v. Fenerbahçe & FIFA, Order of 19 August 2003, p. 6, para. 8.5. Cf. also
CAS 2006/A/1137, Cruzeiro Esporte Clube v. FIFA & PFC Krilja Sovetov, Order of 17 August 2006,
cited by Mavromati/Reeb, Art. R37, para. 41 (where a club that was precluded from registering
new players, at both the national and international levels, for several months from the date of
notification of the FIFA DRC decision was deemed to be at risk of suffering irreparable harm).
37 CAS 2008/A/1453, Soto Jaramillo & FSV Mainz 05 v. CD Once Caldas & FIFA, Preliminary
decision of 8 February 2008, p. 7, para. 15. More recently, cf., e.g., CAS 2015/A/3925, Traves
Smikle v. JADCO, Order of 13 March 2015, paras. 6.8–6.9.
 1494 Arbitration in Switzerland – The Practitioner’s Guide

appeal.38 Moreover, an athlete’s inability to compete in a major competition often

entails damage that is difficult to remedy.39 World championships and the Olympic
Games evidently qualify as major competitions.40 For other competitions, it should
be up to the applicant to demonstrate the importance of the event for his or her
career.41 For instance, the CAS held that the Giro d’Italia is a major competition for
an Italian rider.42 The less important or “iconic” the competition at stake, the higher
the bar will be set in this regard.43 Be that as it may, on some occasions the CAS
has gone against this general approach by holding that the economic, emotional
and psychological hardship that results from the inability to compete in important
events is an unavoidable consequence of every suspension of a professional athlete
from competition.44
19 Damage to reputation and loss of opportunity may also constitute irreparable (or
hardly reparable) harm, to the extent that they are difficult (if not impossible)
to quantify.45 The CAS has considered such risk to be self-evident in a situation
where a football club was prohibited from participating in the (then) UEFA Cup.46
However, damage to reputation may not amount to irreparable harm if, in the
circumstances, it is inevitable. For example, if an official is accused of corruption,
the suspicions relayed in the media are not likely to dissipate until the rendering of
the final decision, meaning that provisional measures cannot in any event provide
protection against them.47
20 Financial losses are not considered “irreparable” if they can be fully compensated by
an award of damages at the end of the proceedings.48 Pecuniary damage is relevant

38 Mavromati/Reeb, Art. R37, para. 32, referring to CAS 2005/A/958, R. v. UEFA, Order of 9
November 2005.
39 Cf., e.g., CAS 2015/A/3925, Traves Smikle v. Jamaica Anti-Doping Commission (JADCO),
Order of 13 March 2015, paras. 6.8–6.10, with references, adding that “the same holds true
if an athlete is unable to compete in qualifying events necessary to compete in such major
events”. On this latter point, cf., however, CAS 2008/A/1480, O. Pistorius v. IAAF, Order of
10 March 2008, referred to by Mavromati/Reeb, Art. R37, para. 36 (noting that participation
in the IAAF competitions in the run up to the Olympic Games would not automatically entail
that the applicant would be eligible for the Games). Similarly, cf., e.g. CAS 2015/A/4282, K. &
M. v. IOC, Order of 7 March 2016, paras. 51–52.
40 Cf., e.g., CAS 2011/A/2615, Thibaut Fauconnet v. International Skating Union (ISU) & CAS
2011/A/2618, International Skating Union (ISU) v. Thibaut Fauconnet, Order of 28 November
2011, para. 9.
41 CAS 2001/A/328, F. v. International Sports Organization for the Disabled (ISOD) et al., Order
of 3 August 2001, p. 2.
42 CAS 97/169, Menegotto v. FIC, Order of 15 May 1997, CAS Digest I, p. 542, para. 10.
43 Cf. e.g., CAS 20127A/3031, Katusha Management SA v. UCI, Order of 25 January 2013, concerning
the team’s exclusion from a UCI WorldTour competition, the Santos Tour Down Under 2013,
which was “important to obtain points for the UCI World Tour ranking, […] one of the main
criteria for the registration of a team for the subsequent season”, where the Deputy President
of the Appeals Division held that the Appellant had “failed to establish that the immediate
execution of the challenged decision would prejudice its rights in any manner” (paras. 3.4 and
6.10).
44 CAS 2005/A/990, Pobyedonostsev v. IIHF, Order of 19 January 2006, p. 4, para. 8.2. See also
Mavromati/Reeb, Art. R37, para. 33.
45 CAS 2011/A/2543, Gymnova v. Fédération Internationale de Gymnastique (FIG), Order of 14
November 2011, para. 14.
46 CAS 98/200, AEK PAE & SK Slavia v. UEFA, Order of 17 July 1998, p. 10, para. 43.
47 CAS 2011/A/2433, D. v. FIFA, Order of 1st June 2011, p. 5, paras. 19–21.
48 CAS 2006/A/1187, British Skeleton v. FIBT, Award on Interim Measures of 30 January 2007, p.
7, para. 31. More recently, cf. e.g., Africa Sports d’Abidjan v. Fédération Ivorienne de Football
Article R37 CAS Code – Rigozzi/Hasler 1495

per se only if the applicant can establish that the resulting loss is impossible or very
difficult to recover.49 In all other instances, it must be coupled with some form of
moral damage or damage to a sporting interest. For instance, the CAS will take notice,
without deeming it conclusive in itself, of the fact that an athlete has a financial
interest in competing in a major event50 or that a club’s inability to participate in
an important event could result in lost revenue or financial jeopardy.51 However, the
CAS has held that financial losses suffered by football clubs due to a prohibition
from signing new players during a transfer window,52 or resulting from the potential
loss of investment in a player due to a decision refusing his international transfer
certificate,53 were quantifiable and could thus be indemnified if the club succeeded
on the merits.54
An applicant may also refer to the interests of third parties in cases where others 21
will suffer negative consequences if the CAS does not grant the interim measures
sought. For instance, a football agent appealing a decision which suspended his
license during two transfer periods emphasized the interests of his clients.55 Along
the same lines, a football club argued that if it were prevented from signing players
during the transfer period, the resulting loss of financial sponsorship could jeopard-
ize its future, which in turn would affect the interests of the football association it
belonged to, and more generally football at the national level.56
Other considerations may also be factored into the CAS’s analysis, such as the length 22
of time between the issuing of an order on provisional measures and the scheduled
hearing. The point is self-evident when the hearing is delayed as it is obvious that
this would compound harm to the applicant. In the case of an early hearing, the
situation may be more complex. For instance, in a case where the stay of an athlete’s
suspension from competition is requested, the applicant can claim that this will
result only in a short-term infringement of the adverse party’s interests,57 but the
Panel could also consider that, in the circumstances, the applicant would only miss
a limited number of competitions, and thus reject the application on the basis that
the potential harm to the applicant would be comparatively limited.58

& USC Bassam, Order of 29 June 2012, para. 23.

49 CAS 2011/A/2473, A. Club v. SAFF, Order of 17 June 2011, p. 5, paras. 6.4–6.6.
50 CAS 2001/A/328, F. v. International Sports Organization for the Disabled (ISOD) et al., Order of
3 August 2001, p. 3. In particular, the CAS has underscored that while the inability to participate
in an important competition may indeed entail the loss of an opportunity, “there cannot be
any security for a professional [athlete], even if [he or she] belongs to the best ones, to win a
competition and the respective prize money”, so that “the fact of perhaps losing prize money
during a period of time does not create per se irreparable harm” (CAS 2011/A/2479, Patrik
Sinkewitz v. UCI, Order of 8 July 2011, para. 8, referring to CAS 2008/A/1569).
51 CAS 2003/A/523, Pohang v. FIFA, Order of 30 December 2003, p. 6, para. 7.10.
52 CAS 2005/A/916, AS Roma v. FIFA, Order of 25 July 2005, p. 4, paras. 18–19.
53 CAS 2011/A/2376, S. Football Club LLC v. FIFA, Order of 13 April 2011, p. 10, para. 44.
54 Similarly, the CAS has held that because the “UEFA rules have clear provisions with respect to
prize money related to UEFA competitions”, which “would constitute a strong basis to assess
any potential financial damage” suffered by the Appellant as a consequence of its elimination
from the third qualifying round of the UEFA Champions League playoffs for having fielded
an ineligible player, such harm could not be considered irreparable (CAS 2014/A/3703, Legia
Warszawa v.UEFA & Celtic Football Club, Order of 1 September 2014, para. 6.14).
55 CAS 2007/A/1198, Piveteau v. FIFA, Order of 23 January 2001, p. 7, para. 30.
56 CAS 2003/A/523, Pohang v. FIFA, Order of 30 December 2003, p. 6, para. 7.10.
57 CAS 2003/O/482, Ortega v. Fenerbahçe & FIFA, Order of 19 August 2003, p. 6, para. 8.7.
58 CAS 2005/A/951, Cañas v. ATP, Order of 18 November 2005, p. 3, para. 13.
 1496 Arbitration in Switzerland – The Practitioner’s Guide

23 In light of the foregoing, applicants should take care to submit specific arguments
about the harm that will arise given the particular factual scenario, and to dem-
onstrate that such harm extends beyond mere recoverable financial ramifications.
Although this is not always spelled out in the relevant CAS jurisprudence, the
applicant need only make a showing that the risk of suffering irreparable harm is
plausible by alleging and bringing prima facie evidence of such risk.59 The application
should not be dismissed on the mere ground that the applicant was unable to quantify
precisely the potential amount of damage.60 It is also worth noting that, according to
the CAS’s commentary to the Code, “even if the Division President is not convinced
that the applicant would suffer irreparable harm, he [or she] will normally consider
that such condition is met if the [opponent] does not [object] thereto”.61

B The Likelihood of Success on the Merits

24 The definition of the “likelihood of success” criterion has been subject to fluctuating
terminology, reflecting the debate as to whether a positive or negative standard should
be applied, such that the claim must be “likely to be well-founded” or, rather, “not
obviously ill-founded”. The positive standard was applied in the older CAS decisions,
which required “reasonable chances of success”.62 However, more recent CAS deci-
sions tend to favor the negative standard, considering that an application is likely
to succeed if “it cannot be definitely discounted”63 or if its chances of success are
higher than the chances that it will be dismissed.64 This reasoning, as will be seen
below, is informed by the concern that it is necessary, at the stage of provisional
measures, to avoid trespassing into the merits of the case.65 Be that as it may, the
fact that, again, there is no definitive, monolithic standard in this respect enables
arbitrators to exercise their discretion on a case by case basis.

59 CAS 2008/A/1525, A. FC v. HFF & O. FC, Order of 21 April 2008, p. 18, para. 71. That said, as
underscored in several decisions, the risk of irreparable harm should be actual and real, not
just hypothetical (cf., e.g., CAS 2013/A/3139, Fenerbahçe SK v. UEFA, Order of 3 May 2013,
paras. 6.5 and 6.6; CAS 2014/A/3861, I. v. CTU & FMF, Order of 29 January 2015, para. 38).
Cf. also Mavromati/Reeb, Art. R37, para. 36, with further references.
60 On the other hand, as noted by Mavromati/Reeb, Art. R37, para. 30, the burden lies solely on
the applicant to establish the fulfilment of this requirement (in other words, the Panel is not
obliged to order additional evidentiary measures or to ascertain the existence of a plausible risk
of irreparable harm where the applicant fails to make the required prima facie showing). Cf.,
e.g., CAS 2008/A/1631, AS RCK v. FAF, Order of 20 August 2008, para. 17; CAS 2008/A/1621,
IFA v. FIFA & QFA, Order of 27 August 2008, para. 11 (with a further reference to the order
rendered in CAS 2007/A/1317, Matt Fogarty & Dean Schoppe v. Badminton World Federation).
61 Mavromati/Reeb, Art. R37, para. 43, referring to CAS 2012/A/2729, W. Mazzarri v. UEFA, Order
of 13 March 2012.
62 Cf., e.g., CAS 98/200, AEK PAE & SK Slavia v. UEFA, Order of 17 July 1998, p. 9, para. 40.
63 See, among many others, CAS 2006/A/1100, Eltaib v. Club Gaziantepspor, Order of 14 July
2006, p. 7, para. 30, and, more recently, CAS 2013/A/3052, S. et al. v. A. et al. & COP, Order
of 12 June 2013, para. 99.
64 A contrario, cf. CAS 2006/A/1162, Iglesias v. FILA, Order of 16 October 2006, para. 24. Cf. also
Mavromati/Reeb, Art. R37, para. 45 in fine, with further references.
65 In CAS 2008/A/1631, RCK v. FAF, Order of 20 August 2008, paras. 13–16, the Panel, which was
called to render an urgent decision on provisional measures, held that, given the numerous
questions raised by the factual record before it, as well as the lack of information and evidence
at that stage in the proceedings, and considering that the applicant’s arguments appeared to
be grounded on reasonably plausible allegations, the ‘likelihood of success’ test ought to be
considered satisfied.
Article R37 CAS Code – Rigozzi/Hasler 1497

Considering that the final decision on the merits is for the panel to make, the Division 25
President will be most reluctant to rule that the action on the merits does not appear
to have the required chances of success, unless the case is totally farfetched or, in
appeals cases, if it is easy to determine that the time limit for appeal has clearly
elapsed.66 Understandably, the arbitrators are even more cautious. Thus, when they
come to the conclusion that the required likelihood of success is not established,
they will generally strive to emphasize that “the Panel expressly does not state at this
stage a final opinion on the ultimate outcome of the case […] which will be decided
after a full hearing on the merits of the case”.67
Given the flexibility available to arbitrators, establishing an inverse correlation 26
between irreparable harm and the likelihood of success would ensure the greatest
fairness to applicants. In other words, the more severe the irreparable harm is, the
lower the “likelihood of success” threshold should be.68 Since varying standards
exist, one can only advise applicants to expand as much as possible on their case
on the merits and to support their arguments with sufficient proof in order to “make
summarily plausible” that the claim is likely to succeed.69 Failing to adequately
address the “likelihood of success” prerequisite may jeopardize a party’s chances
of obtaining interim relief.70
It is submitted that in those cases where the interim relief sought amounts to an 27
order imposing, on a provisional basis, the performance of the ruling requested on
the merits, in particular where a request to be provisionally admitted into a specific
competition is at issue, the CAS should require a higher standard of likelihood of
success, both as to the existence of the relevant facts and as to the merits of the
applicant’s case.71

C The Balance of Interests (or Convenience)

The third pre-requisite that is examined by the CAS when hearing applications for 28
interim relief is generally referred to as the “balance of interests” test. This criterion
aims at comparing the hardship that will be caused to the applicant if the interim
relief is not granted with the disadvantages the adverse party and any relevant third
parties will suffer if the relief is granted, i.e., whether it would do “greater harm

66 CAS 2011/A/2489, P. et al. v. FIFA, Order of 8 July 2011, pp. 7–8, paras. 26–29. In CAS
2008/A/1677, Alexis Eman v. Club Al Ittihad Tripoli, Order of 15 December 2008, paras. 15–18,
the Division President concluded that the ‘likelihood of success’ test was not met on the ground
that the Applicant had directed his appeal against a Respondent that lacked standing to be
sued in respect of the claim at issue. See also CAS 2012/A/2981, CD Nacional v. FK Sutjeska,
Order of 19 December 2012, paras. 6.5–6.11.
67 Cf., e.g., CAS 2006/A/1187, British Skeleton v. FIBT, Award on Interim Measures of 30 January
2007, p. 7, para. 32.
68 In similar terms, see Mavromati/Reeb, Art. R37, para. 44.
69 CAS 2001/A/324, Addo & van Nistelrooij v. UEFA, Order of 15 March 2001, p. 5, CAS Digest
III, p. 631.
70 CAS 2003/O/486, Fulham FC v. Olympique Lyonnais, Award of 19 December 2003, p. 4, para.
18. Cf. also Mavromati/Reeb, Art. R37, para. 46, with further references.
71 The same line of reasoning is reflected in the Swiss Supreme Court’s case law, cf., e.g., BGE
131 III 473 paras. 2.3 and 3.2.
 1498 Arbitration in Switzerland – The Practitioner’s Guide

to grant the preliminary relief than to deny it”.72 This requirement is also applied
by state courts.73
29 On several occasions, the CAS has confirmed that granting the stay of a sanction
under appeal does not undermine the sports-governing body’s interest in maintaining
the sanction’s deterrent effect, by underscoring that if it is subsequently upheld,
the sanction will merely be postponed in time, not cancelled.74 The CAS has also
held that the irreparable harm resulting for an athlete or club from the immediate
execution of a sanction may override a sports-governing body’s general interest in
maintaining contractual stability,75 preserving the integrity of a competition,76 or
ensuring “fair-play” and the proper behavior of sport professionals.77 However, such
generalizations merely serve as examples since the balance of interests test will
always turn on the specific facts of a given case. Consequently, the main principle
which can be extrapolated from the jurisprudence is that once the applicant’s risk
of suffering irreparable harm is established, sports-governing bodies must provide
specific reasons why the immediate execution of the sanction is necessary. Although
the CAS supports sporting regulators in the exercise of their disciplinary powers,
their position is clearly seen as “distinct from [that of] a private party at risk of
suffering irreparable damage if a stay is not granted”.78
30 On the other hand, and as noted above with respect to the likelihood of success
criterion, it is submitted that when the requested provisional measures seek the ex
ante enforcement, on an interim basis, of all or part of the claim on the merits, in
particular when a request to be provisionally admitted into a specific competition is
at issue, the CAS should be particularly prudent in its analysis before concluding that
the interests of the appealing club79 or athlete(s) outweigh those of the other parties
involved.80 The scope of the balance of interests is potentially wider in sports- than
in commercial arbitration, enabling arbitrators to consider the interests of parties
that are not involved in the proceedings. Inspiration again emanates from Art. 14(2)
of the CAS Ad Hoc Division Rules which compares the interests of the applicant to
those of the opponent as well as “other members of the Olympic Community”. This
broad scope illustrates that, in the large majority of sports disputes, the granting of
provisional measures can have far-reaching consequences. For example, the CAS

72 CAS 98/200, AEK PAE & SK Slavia v. UEFA, Order of 17 July 1998, p. 15, para. 70.
73 Cf., e.g., Tribunal Cantonal, canton de Vaud, Order of 27 September 2011, p. 23, at VIII.c.aa.
74 Cf., e.g., CAS 2003/O/482, Ortega v. Fenerbahçe & FIFA, Order of 19 August 2003, p. 6, para.
8.6. Cf. also Mavromati/Reeb, Art. R37, para. 48, with reference to CAS 2006/A/1137, Cruzeiro
Esporte Clube v. FIFA & PFC Krilja Sovetov, Order of 17 August 2006. See also CAS 2007/A/1370
& 1376, FIFA v. STJD & CBF & Dodô; WADA v. STJD & CBF & Dodô, Order of 10 December
2007, para. 7, holding that “a relatively short delay in the imposition of a sanction (if such was
the outcome of the appeal) would not […] by any means harm FIFA’s stance against doping”
(in a case where FIFA had appealed against a decision by the Brazilian Football Federation’s
Superior Tribunal de Justiça Desportiva acquitting the Player of an anti-doping rule violation,
and was seeking the immediate suspension of the player pending the appeal).
75 CAS 2004/A/780, Maicon Henning v. Prudentopolis & FIFA, Order of 6 January 2005, p. 9, para.
5.12; CAS 2008/A/1674, Al-Hilal Al-Saudi Club v. FIFA, Order of 12 December 2008, para. 26.
76 CAS 98/200, AEK PAE & SK Slavia v. UEFA, Order of 17 July 1998, pp 15–16, paras. 71–74.
77 CAS 2007/A/1198, Piveteau v. FIFA, Order of 23 January 2001, pp. 7–8, paras. 33–35.
78 CAS 2003/A/523, Pohang v. FIFA, Order of 30 December 2003, p. 7, para. 7.13.
79 Tribunal Cantonal, canton de Vaud, Order of 27 September 2011, p. 23, at VIII.c.aa.
80 Tribunal Cantonal, canton du Valais, Order of 16 November 2011, p. 13, at 4.a at the end. In
similar terms, cf. CAS 2015/A/4259, R. v. FIM, Order of 5 November 2015, para. 53.
Article R37 CAS Code – Rigozzi/Hasler 1499

found that granting the provisional reinstatement of an athlete following a positive

doping test based on unproven and contradictory facts could be seriously detrimental
to the sports-governing body and to other competitors if the applicant’s suspension
was later to be upheld.81 Concern for the interests of other athletes has also led the
CAS to consider, as a general rule, that stays of doping sanctions must be granted
“parsimoniously”.82 Indeed, to our knowledge a stay against an anti-doping related
ban has been granted only in instances where “the Respondent has in effect conceded
that in these circumstances it would be appropriate to grant a stay of execution”.83
The same type of “sport specific” reluctance to order measures that will affect 31
third parties can be observed in cases where the granting of the relief sought could
disrupt the smooth organization of an event or championship. For instance, in a
case concerning the relegation of a club, the CAS explicitly noted the concern that
greater damage would be suffered by the football federation and the other football
clubs which were trying to qualify for the following year’s tournament.84 In this
regard, it is submitted that given the importance of the wider sports community, it
is for the respondent sports-governing body and, if necessary, the CAS sua sponte
to draw attention to, and duly take into consideration, such third party interests.85
In weighing the interests at stake in disciplinary cases where the stay of a sanction 32
is sought, the CAS also takes into account the nature, purpose and intended terms
of application of the sanction, as there may be circumstances where postponing its
execution may make a significant difference. Similarly, the applicant’s procedural
conduct will also be examined in the context of the balance of interests test. For
instance, in a case where the regulations called for the automatic application of the
sanction in “the next competition” of a championship (which also happened to be the
final competition of the season), the CAS arbitrator held that the applicant’s choice

81 CAS 2005/A/951, Cañas v. ATP, Order of 18 November 2005, p. 3, paras. 12–13.

82 CAS 2005/A/958, R. v. UEFA, Order of 9 November 2005, p. 3, para. 8, free translation from
the French original.
83 CAS 2014/A/3571, Asafa Powell v. JADCO, Order of 7 July 2015, para. 7.1; CAS 2014/A/3571,
Sherone Simpson v. JADCO, Order of 7 July 2015, para. 7.1.
84 CAS 2008/A/1525, A. FC v. HFF & O. FC, Order of 21 April 2008, pp. 19–20, para. 78. For
a counter-example, where the Sole Arbitrator found that, in casu, the measure sought by
the club (admission in the first division of the national football championship) would not
entail the relegation of another team, but only require that the calendar of competitions be
adjusted and the other teams play against one more opponent, possibly for a limited time, see
CAS 2011/A/2399, FICA v. FHF, Order of 28 April 2011, paras. 17–19 (referring to the similar
situation in CAS 2008/A/1631, RCK v. FAF, Order of 20 August 2008). State courts appear to
be less concerned by such “sport specific interests” (thus, there was no discussion of any
arguments relating to the disruption of the competition and the damage caused to other clubs
in the decisions rendered in the FC Sion saga, whether in the case brought by the Club against
UEFA in the courts of the canton of Vaud (cf. in particular Tribunal Cantonal, canton de Vaud,
Order of 27 September 2011, at p. 23, simply dismissing “les difficultés d’ordre organisationnel
auxquelles (l’intimée) serait confrontée” (freely translated: “the organizational difficulties the
respondent would have to deal with”), without taking into account the interests of the other
clubs), or in the case brought by the six players of the Club before the courts in the canton of
Valais (Order issued by the Juge I des Districts de Martigny and St-Maurice, Glarner and others
v. SFL ASF, FIFA & FIFA TMS, C2 11 228, on 3 August 2011). What the state courts appear to
do in such cases is to emphasize the fact that the order sought is akin to a measure ordering
ex ante specific performance and thus requires higher chances of success on the merits to be
granted (cf. above, para. 27 and footnote 71, and also Tribunal Cantonal, canton du Valais,
Order of 16 November 2011).
85 Rigozzi, Provisional Measures, p. 229.
 1500 Arbitration in Switzerland – The Practitioner’s Guide

to seek the stay of the sanction rather than initiating an expedited procedure to have
immediate clarity on the merits of the dispute shifted the balance of interests to his
disadvantage.86 Waiting until the last minute to file an application for provisional
measures also adversely affects the balance of interests on the applicant’s side, in
particular if the order is requested on an ex parte basis.87

V PROCEDURAL QUESTIONS

33 As a preliminary matter, it bears to point out that, as the text of Art. R37(3) makes
clear, provisional measures are ordered only “upon application by a party”. Further,
arbitral tribunals can entertain applications for preliminary relief only if they have
jurisdiction to hear the merits of the case.88 Hence, an application for provisional
measures before the CAS should include, in addition to “brief reasons establishing
prima facie”89 the three substantive prerequisites just discussed, the necessary ele-
ments to enable the CAS to review its jurisdiction (A.), namely the basis for such
jurisdiction (e.g., arbitration clause in a contract; relevant stipulation in the applicable
regulations), and, in appeals cases, proof that the internal legal remedies have been
exhausted.90 In cases of extreme urgency, the CAS can order provisional measures
ex parte, i.e. without hearing the party against whom the measure is sought (B.).
Finally, applicants must take note of the fact that, if they file a request for provisional
measures prior to the request for arbitration (Art. R38) or statement of appeal (Art.
R48), they will need to file their initiating submissions shortly thereafter, failing
which any provisional measures as may have been granted will be revoked, and/
or the interim relief proceedings will be discontinued. (E.). Respondents, for their
part, should be aware of the consequences if they fail to submit their position on
a request for provisional measures when invited to do so (C.); they should also
keep in mind that the CAS has the possibility of making an order for interim relief
conditional upon the provision of security (D.).

A Prima Facie Examination of CAS Jurisdiction

34 It is self-evident that arbitrators can order provisional measures only if they have
jurisdiction to hear the merits of the dispute. Art. R37 was amended in 2010 to make
it clear that this requirement also applies before the arbitrators are appointed and the
panel constituted: “[t]he President of the relevant Division or the Panel shall issue

86 CAS 2015/A/4259, R. v. FIM, Order of 26 November 2015, para. 53, p. 21. Cf. also CAS
2013/A/3094, HFF v. FIFA, Order of 2 April 2013, para. 7.8, noting that the “parties must do all
they can to assist themselves and the CAS when looking for provisional measures”, and that
“the Appellant did not take the chance to cancel the sanction [in the expedited proceedings
the CAS and the Respondent were prepared to conduct, which the Appellant declined to
participate in], instead concentrat[ing] on postponing it, which the Panel determines would
undermine the deterrent effect and harm the interests of the Respondent […] to a degree in
excess of the interests of the Appellant”. For another case where the Panel suggested, in view
of the circumstances (in particular the limited outstanding period of suspension to be served by
the Appellant), to hold expedited proceedings on “all aspects of the appeal” rather than ruling
(only) on the Appellant’s request for a stay before turning to the merits, see CAS 2013/A/3151,
Jonathon Millar v. FEI, Award of 7 October 2013, para. 41.
87 CAS 2016/O/4779, IFAF & W. & TAFF v. N & M, Order of 14 September 2016, para. 5.5.
88 Rigozzi, para. 1147.
89 Mavromati/Reeb, Art. R37, para. 14.
90 As seen, this latter requirement is stated expressly in Art. R37(1).
Article R37 CAS Code – Rigozzi/Hasler 1501

an order within a short time and shall rule first on the CAS jurisdiction”. Art. R37
was further amended in 2013 to expressly stipulate that the CAS should undertake
only a “prima facie” analysis of jurisdiction, specifying that “[t]he Division President
may terminate the arbitration procedure if he/she rules that the CAS clearly91 has no
jurisdiction”. In general, the Division President will be very cautious before dismissing
an application on jurisdictional grounds.92 When satisfied that there is prima facie
jurisdiction, the Division President usually explicitly notes in his or her decision
that “the final decision on jurisdiction will be made by the Panel”.93
Article R37 does not apply the “clearly no jurisdiction” standard to the panel’s 35
analysis. While it would certainly be preferable for the panel to conduct a more
complete, and even final, examination of jurisdiction, more often than not the specific
circumstances of a case, the pressure of time constraints, and the limited information
available at the stage of interim relief proceedings will mean that a jurisdictional
determination can only be made on a prima facie basis.94 In practice, the panel will
defer its final decision on jurisdiction to a later stage (often the final award) if it does
not have sufficient information and evidence when seized with an application for
interim relief.95 In sum, given the fundamental importance of jurisdictional issues, the
panel should verify its jurisdiction as accurately as possible under the circumstances96
and applicants would be well-advised to make thorough submissions on jurisdiction
already at the stage of a request for provisional measures.97
Neither the panel nor, a fortiori, the Division President should terminate the arbitra- 36
tion on jurisdictional grounds in an ex parte order.98

91 The fact that the 2013 edition of the Code substituted the original adverb “manifestly” with
“clearly” constitutes a mere cosmetic change and should not be taken as a lowering of the
applicable standard. Indeed, the French version of the Code remained unchanged and still uses
the word “manifestement”.
92 CAS 2011/A/2473, A. Club v. SAFF, Order of 17 June 2011, p. 3, para. 4.2. In this case the Division
President preferred to dismiss the request for preliminary measures for lack of irreparable harm
despite the fact that CAS jurisdiction was more than doubtful (as it then became apparent with
the Award issued in CAS 2011/A/2472, A. v. SAFF on 12 August 2011). Similarly, demonstrating
that the threshold for the respondent to establish that the CAS lacks jurisdiction is indeed
very high before the (Appeals) Division President, cf. CAS 2016/A/4914, L. v. UCI, Order of
12 January 2017, paras. 12–15. For a case where the President of the Appeals Division found
that there was “manifestly no arbitration agreement between the parties to refer the present
dispute to the CAS”, cf. CAS 2006/A/1140, Sportul Studentesc v. RFF, Order of 14 September
2006, para. 4.3, noting that the dispute at hand was purely domestic and therefore not covered
by the rule providing for CAS jurisdiction in the RFF Statutes, which only concerned disputes
featuring “an element of extraneity”. See also Mavromati/Reeb, Art. R37, para. 22.
93 Cf., e.g., CAS 2011/A/2376, S. Football Club LLC v. FIFA, Order of 13 April 2011, pp. 8–9, para.
36; CAS 2011/A/2541, B. v. AFC, Order of 30 September 2011, para. 4.2; CAS 2014/A/3642, Erik
Salkic v. FUR & PFC Arsenal, Order of 5 August 2014, paras. 12 and 16.
94 Cf., e.g., CAS 2008/A/1631, RCK v. FAF, Order of 20 August 2008, paras. 3–11.
95 CAS 2011/A/2376, S. v. FIFA, Order of 13 April 2011, pp. 8–9, para. 36.
96 Cf. CAS 2008/A/A/1631, RCK v. FAF, Order of 20 August 2008, para. 3.
97 In appeals proceedings, when the appellant seeks the stay of the decision under appeal, the
request should be made at the latest together with the statement of appeal (cf. Art. R48, paras.
16–17 below). On the issue of CAS jurisdiction, see Arts. R39 for ordinary proceedings and R47
for appeals proceedings. See also Mavromati/Reeb, Art. R37, paras. 20–22.
98 After all, the respondent could accept CAS jurisdiction even though it is not provided for in the
applicable sporting regulations or in the arbitration clause contained in the underlying contract.
 1502 Arbitration in Switzerland – The Practitioner’s Guide

B Ex Parte Orders

37 It is generally accepted under Swiss law that arbitral tribunals have the power to
order interim measures on an ex parte basis.99 Art. R37 of the CAS Code expressly
provides for such a possibility, by envisaging that in “case of utmost urgency” the
CAS “may issue an order upon mere presentation of the application, provided that
the opponent is subsequently heard”.100
38 Unless the urgency appears while the case is pending before the panel, it would be
for the Division President to decide whether to grant the remedy sought on an ex
parte basis. It is submitted that urgency should not be the only element to be taken
into account and that the more serious the risk of irreparable harm, the less reluctant
the Division President should be to decide on the application without hearing the
other side. That said, the plausibility of the facts alleged by the applicant should
be examined at least to a certain extent. In practice, ex parte rulings can only be
contemplated if the jurisdiction of the CAS (as well as, in appeals cases, the exhaus-
tion of the internal remedies and the timeliness of the appeal) is easily verifiable.
39 It is often said that ex parte orders tend to be rare in arbitration but are more frequent
in sports disputes due to the need for swift decisions. While it is true that state courts
have shown that they will not hesitate to act ex parte in sports matters,101 the same
does not apply to the CAS. Indeed, it appears that the Division President prefers to
fix very short time limits to answer by fax rather than rule ex parte.102 This is possible
because the Division President and/or his or her deputy are available around the
clock and, unlike state courts, communicate with the parties by fax and/or e-mail.

C Answer and Failure to Answer

40 When, as in the vast majority of cases, the Division President or the panel invites
the opponent party to express its position, the time limit provided for by Art. R37 is
normally ten days, but can be “shorter […] if circumstances so require”. This flexibility
is particularly important as it allows the Division President to avoid the need to
decide ex parte even if the decision is required on a very urgent basis.
41 If the respondent does not answer within the set time limit, the CAS will tend to
consider that the applicant has met his or her burden of establishing prima facie
that the action on the merits has reasonable chances of success.103 However, when
the time limit to respond is particularly short, the CAS should not simply consider
that the respondent has acquiesced to the measure sought. Even when there are no
third party interests involved, such a drastic consequence should be applied only

99 Von Segesser/Boog, p. 117. Kaufmann-Kohler/Rigozzi, para. 6.124.

100 For a recent example where an ex parte order was issued, granting a provisional stay “on the
basis that such order would be reconsidered once the Respondent filed its observations”, cf.
CAS 2015/A/3925, Traves Smikle v. Jamaica Anti-Doping Commission (JADCO), Order of 13
March 2015, para. 3.2.
101 Cf., e.g., the Order issued by the Juge I des Districts de Martigny and St-Maurice in the case
Glarner and others v. SFL ASF, FIFA & FIFA TMS, C2 11 228, on 3 August 2011.
102 Cf. Mavromati/Reeb, Art. R37, para. 26.
103 Cf. e.g., CAS 2011/A/2351, Club C. v. FIFA, Order of 16 March 2011. As seen in para. 23 above,
this can also be the case with the ‘risk of irreparable harm” test.
Article R37 CAS Code – Rigozzi/Hasler 1503

if the communication from the CAS fixing the time limit to respond provides so in
express terms.104

D Security

Article R37 in fine explicitly authorizes the CAS to make the granting of interim 42
relief conditional upon the provision of security. The requirement for the posting of
security aims to protect the adverse party by ensuring that it will be able to recover
any damages caused by the measure(s) ordered by the tribunal, should these
measures eventually be deemed unnecessary or unjustified in the final decision.
Before making an order for security, the CAS must therefore be satisfied (i) that the
interim measure(s) requested can cause damage to the applicant’s adverse party or
parties,105 (ii) that it would be very difficult to recover the amount at stake at a later
stage (i.e., based on a cost award),106 and (iii) that the amount of security requested
does not exceed the maximum potential damages claim.107 In our experience, the
CAS has made little use of this type of order.108

E Need to “Confirm” the Request for Provisional Measures

In 2013, a sixth paragraph was added in Art. R37, according to which provisional 43
measures will be ordered (or maintained) only if the requesting party files its claim
on the merits within a certain time limit. In CAS ordinary proceedings, the request for
arbitration must be filed within 10 days from the filing of the request for provisional
measures; in appeals proceedings, the statement of appeal must be filed within
the time limit provided by Art. R49 of the Code. If such non-extendable time limits
are not met, the proceedings for interim relief will be terminated and any measure
granted in the meantime will be revoked.

104 Cf. also Mavromati/Reeb, Art. R37, para. 26, apparently considering that an exception to the
acquiescence principle should also be made “where the time limit to file an answer is too
short”.
105 Cf. Mavromati/Reeb, para. 57, with reference to CAS 2010/A/2240, Zhongyu Professional
Basketball Club v. L. Benson & J. Paris, Order of 21 March 2011.
106 Cf. Mavromati/Reeb, Art. R37, para. 57, with reference to CAS 2011/A/2360 & 2392, ECF & GCF
v. FIDE & ECF & GCF v. FIDE, Order of 27 June 2011, and CAS 2013/A/3249, X. v. FACR, Award
on Jurisdiction of 31 March 2014, para. 57f. As noted by the same authors, “[t]his means that
the applicant bears a high onus to prove (by adducing concrete evidence) that the appellants
would not be in a financial position to satisfy an eventual costs award against them”.
107 Von Segesser/Boog, p. 118; see also Boog, above commentary on Art. 183(3) PILS (Chapter 2,
Part II), paras. 17–22.
108 Cf. also Mavromati/Reeb, Art. R37, para. 55. As noted by these authors at para. 60, the CAS
has also dealt with cases where a federation’s rules imposed the posting of security for costs on
parties bringing an appeal against the federation’s decisions. In two known instances, FIDE’s
rules to this effect were held to be disproportionate and contrary to the principle of equality
(cf. CAS 2011/A/2360&2392, ECF & GCF v. FIDE; ECF &GCF v. FIDE, Order on security for costs
of 27 June 2011; CAS 2012/A/2943, BCF v. FIDE, Award of 8 April 2013).
 1504 Arbitration in Switzerland – The Practitioner’s Guide

VI FURTHER ISSUES RELATING TO ORDERS ON PROVISIONAL

MEASURES

A Costs

44 Pursuant to Art. R37 (second paragraph) the party applying for provisional measures
before initiating the arbitration shall pay the Court Office fee as per Art. R65.2 upon
filing the application, failing which the “CAS shall not proceed”. Should the request
for arbitration (Art. R38) or the statement of appeal (Art. R48) be filed at a later
stage, the filing fee “shall not be paid again”.
45 In cases concerning “decisions which are exclusively of a disciplinary nature and
which are rendered by an international federation or sports-body” within the meaning
of Art. R65 of the CAS Code, orders on provisional measures will be issued without
costs. However, in light of his/her power to decide to impose the payment of the
arbitration costs also in such cases,109 the President of the Appeals Division can
reserve his/her decision for a later stage of the proceedings.
46 In cases where the proceedings are not free of charge, the CAS normally rules that
“the costs of the present order will be settled in the final award or in any other
final decision in this arbitration”. In exceptional cases, the allocation of such costs
is decided directly in the order.110
47 The outcome of the request should be taken into account when deciding on the
apportionment of the arbitration costs, if any, and the awarding of a contribution
towards legal costs. When the request for provisional measures is filed and dismissed
before the applicant has even filed the statement of appeal or request for arbitration,
and the latter is ultimately not filed within the time limit set in Art. R37(6),111 it is
submitted that the prevailing party should be allowed to ask the President of the
relevant Division to issue an order on costs.

B No Appeal Against Orders on Provisional Measures

48 Generally, under Swiss law, regardless of whether a decision on interim measures

is labeled as an “order” or an “award”, it is not subject to appeal because it can be
modified or set aside during the arbitration; in other words, it is not a final, partial,
or interlocutory award that can be challenged, as such, before the Swiss Federal
Supreme Court.112 Indeed, CAS orders on provisional measures now systematically
contain a closing sentence according to which “[t]his decision is a procedural order,
not an award. As a result, it may not be challenged in court pursuant to Art. 190
Swiss Private International Law Act”.113 However, an order on interim measures can
be appealed (i) if the CAS thereby declines jurisdiction,114 or (ii) in the exceptional

109 Cf. Art. R65, paras. 7–8 below.

110 Cf., e.g., CAS 2003/O/520, Association turque de football & B. v. UEFA, Order of 3 December
2003, p. 11, para. 57.
111 Cf. para. 46 above.
112 BGE 136 III 200 para. 2.3.1.
113 Cf. for example, CAS 98/200, AEK PAE & SK Slavia v. UEFA, Order of 17 July 1998, para. 78,
or, more recently, CAS 2011/A/2473, A. Club v. SAFF, Order of 17 June 2011, p. 6, para. 8.1;
CAS 2013/A/3139, Fenerbahçe SK v. UEFA, Order of 3 May 2013.
114 Contra, it would seem, Mavromati/Reeb, Art. R37, para. 11, with no particular discussion.
Article R37 CAS Code – Rigozzi/Hasler 1505

circumstance that the order de facto rules on the merits of the dispute, thereby
definitively terminating the arbitration proceedings.

C Enforcement

Sports-governing bodies, which impose the CAS Code on their members, but also 49
clubs and athletes in appeals cases, will generally comply voluntarily with orders
on provisional measures issued by the CAS.115 Enforcement is thus not an issue in
CAS appeals arbitration cases.
In CAS ordinary arbitrations, similar to commercial arbitration cases, voluntary 50
compliance is less self- evident but still common. Although arbitrators cannot enforce
orders directly against the parties, they can use the tools of adverse inferences, cost
allocation, and even possibly an adverse ruling (if justified) to reprimand non-com-
pliance with their orders on provisional measures. If necessary, arbitral tribunals
can also seek the assistance of the courts for the enforcement of such orders.116

115 Cf. also Mavromati/Reeb, Art. R37, para. 53, noting that CAS-ordered provisional measures are
“quasi automatically enforced”. By contrast, experience shows that the same does not apply to
orders issued by state courts in disputes for which the relevant sports-governing body provides
for CAS arbitration (cf. above, para. 11, footnote 24, and the well-known OM-Valenciennes case
reported in SPuRt 1994, p. 27, as discussed by Rigozzi, para. 153).
116 Von Segesser/Boog, pp. 121–122; see also Boog, above commentary on Art. 183(2) PILS (Chapter
2), paras. 29–44; Kaufmann-Kohler/Rigozzi, paras. 6.130–6.141.
 1506

B. Special Provisions Applicable to the

Ordinary Arbitration Procedure (Arts. R38 – R46)

Article R38: Request for Arbitration

The party intending to submit a matter to arbitration under these Procedural Rules
(Claimant) shall file a request with the CAS Court Office containing:
– the name and full address of the Respondent(s);
– a brief statement of the facts and legal argument, including a statement
of the issue to be submitted to the CAS for determination;
– its request for relief;
– a copy of the contract containing the arbitration agreement or of any
document providing for arbitration in accordance with these Procedural
Rules;
– any relevant information about the number and choice of the arbitrator(s);
if the relevant arbitration agreement provides for three arbitrators, the
name of the arbitrator from the CAS list of arbitrators chosen by the
Claimant.
Upon filing its request, the Claimant shall pay the Court Office fee provided in
Article R64.1.
If the above-mentioned requirements are not fulfilled when the request for arbitra-
tion is filed, the CAS Court Office may grant a single short deadline to the Claimant
to complete the request, failing which the CAS Court Office shall not proceed.

I PURPOSE OF THE PROVISION

1 Article R38(1) sets out the prescribed modalities for initiating ordinary arbitration
proceedings at CAS, i.e., the filing of a request for arbitration with the CAS and
payment of the Court Office fee.

II CONTENT OF THE PROVISION

A Content of the Request for Arbitration

2 Article R38(1) lists the content of the request for arbitration to be filed with the
CAS Court Office. It is crucial that from this content it is very clear that the claimant
intends to submit a dispute to the CAS to obtain a binding decision.

1 Identity of Claimant and Respondent

3 The parties and the CAS need to understand who the claimant and the respondent are,
particularly, the CAS needs to know their contact details to enable communication
Article R38 CAS Code – Noth/Haas 1507

between the parties and the Court Office (or the Panel via the Court Office) and to
assess whether there exists an arbitration agreement referring to the CAS.1 Art. R38(1)
first bullet point states, therefore, that the request for arbitration must contain the
name and full address of the respondent. It goes without saying that the name and
full address of the claimant must also be provided with the request.
Furthermore, the email address and fax number (if any) must be mentioned since 4
communication with the CAS may occur via these means of communication.2 If the
claimant is represented by another person, the name, full address and further contact
details (email address and fax number) of the representative shall be mentioned
in the request as well. In case of multiparty arbitration,3 the names, addresses and
further contact details of all parties must be stated.
Updates of a party’s name (e.g. due to a merger) or address (e.g. due to change of 5
domicile) are possible at any time during the proceedings. However, a party’s last
known residence or place of business shall be a valid address in the absence of any
notification of a change by that party.

2 Brief Statement of Facts and Legal Arguments

According to Art. R38(1) second bullet point, the request shall contain a brief state- 6
ment of the facts and legal arguments. The facts and legal arguments must be set
out to the extent necessary for the CAS and the respondent to roughly understand
the key issues of the dispute at stake so that the CAS is in a position to discern any
apparent flaws disallowing the continuation of the arbitration at the CAS.4 and that
the appointment of suitable, competent and independent arbitrators are possible.
The claimant may also address the question of which law applies to the merits.5 7
In case of a separate choice-of-law clause, the Claimant should file this too. An
indication of the amount at stake is helpful as well because the monetary value of
the claims has an impact on the amount of the fees to be paid and on the number
of arbitrators to be appointed if there is a lack of an agreement on this question.6
It is not required to adduce any evidence at this stage. However, it can be advis- 8
able to produce key documents such as a copy of the underlying contract and/or
some critical correspondence; in case IP rights are at stake (e.g. in a sponsoring or
merchandising agreement) it is helpful to submit also excerpts from the underlying
registered intellectual property rights.
The full statements must be made only within the written submissions according 9
to Art. R44.1. Hence, the fact that relevant facts and/or legal arguments are not
mentioned at this stage does not prevent the claimant from completing or sup-
plementing its submissions at a later stage.7

1 Cf. Art. R31.

2 For details cf. Art. R31.
3 Cf. Art. R41.
4 Cf. Art. R39(1), first sentence.
5 Cf. Art. R39(1), second sentence.
6 Cf. CAS Schedule of Arbitration Costs and Art. R40.1 second sentence.
7 Cf. Art. R44.1, fourth sentence.
 1508 Arbitration in Switzerland – The Practitioner’s Guide

10 The CAS Code does not state how to proceed where the request for arbitration is
combined with the statement of claim. As a principle, the court should proceed as
if the claimant had filed only a request for arbitration and invite the respondent to
file its answer to the request in accordance with Art. R39.
11 In practice, the statement of facts and legal arguments often occupy just a few lines.

3 Request for Relief and Procedural Requests

12 Pursuant to Art. R38(1) third bullet point, the claimant shall define its prayers for
relief (request for relief) so that the respondent has a clear picture about what is
expected and demanded from him by the claimant.
13 The prayers for relief can result in an action for performance (e.g. damages for
breach of contract), an action to modify a legal relationship (e.g. assignment of
rights), an action for declaratory judgment8 (e.g. nullity of registered IP rights) or
actions of other nature. The prayers for relief have to be sufficiently precise allowing
a proper identification of the subject-matter of the dispute.9 However, the CAS Rules
do not provide for details as to how precise and specific the prayers for relief have
to be supplied. It is critical that the degree of precision must allow the respondent
to reply to all parts of the claim as the demand for precise prayers for relief are an
aspect of respondents’ right to be heard.10 However, the request for relief may still
be amended with the written submissions in accordance with Art. R44.1.11
14 Even if this is not stated in the CAS Code, procedural requests may be formulated at
this stage, too; e.g., a request for an expedited procedure or to order the consolidation
of proceedings. Furthermore, provisional measures may be requested in accordance
with Art. R37.

4 Proof of Arbitration Agreement

15 Article R38(1) fourth bullet point requires that the claimant files a copy of the
document(s) containing the arbitration agreement and/or providing for arbitration
in accordance with the CAS rules. This requirement is particularly important because
failing to meet it may lead to the CAS refusing to accept the request for arbitration
for manifest lack of an arbitration agreement.12 In case the arbitration agreement is
not in English or French, translations should be attached.13

5 Information regarding Arbitrators and Language

16 According to Art. R38(1) fifth bullet point, the claimant must provide any relevant
information about the number and choice of the arbitrator(s).14 If the arbitration

8 As to the applicable law with respect to the legal interest required for declaratory relief, cf. Art.
27 para. 7 above.
9 Kellerhals/Berger, N 1207.
10 Wirth, Rechtsbegehren, 148, 155; Kellerhals/Berger, N 1207.
11 Cf. Art. R44 para. 4 above.
12 Cf. Art. R39(1), first sentence.
13 Cf. Art. R29, para. 16 above.
14 Cf. Art. R40.
Article R38 CAS Code – Noth/Haas 1509

agreement provides for three arbitrators, the name of the arbitrator from the CAS
list chosen by the claimant has to be mentioned as well.15
If the parties have not already agreed on the language of the arbitration, the request 17
for arbitration should, ideally, contain a proposal in this regard. The relevant language
should be determined at a very early stage, preferably before the appointment of
the arbitrators because the required language skills have obviously an impact on
the choice of arbitrators.16

6 Information regarding Payment of Court Office Fee

If the payment of the Court Office fee is effected before or at the same time as the 18
filing of the request,17 it is useful to provide information and proof that the fee has
already been paid by the claimant.

B Form of the Request for Arbitration

The request for arbitration must be in writing and duly signed by the claimant or 19
its representative. In the event of the representative signing the request, a power of
attorney should be attached (if available).18 Oral requests, for instance by telephone
or in person by passing by at the offices at the CAS, are not accepted.
There are no specific rules regarding structure, style and length of the request 20
for arbitration. Usually, this depends on both the complexity of the case and the
Claimant’s strategy and cost-sensitivity.
In principle, the request for arbitration should be in English or French.19 However, 21
the CAS also accepts submissions in some other languages, i.e., German, Spanish
or Italian.20 With regard to the number of copies to be filed, reference can be made
to Art. R31(3).
The CAS Code requires that communications be sent to the CAS Court Office. 22
A request for arbitration sent only to the respondent will not initiate arbitration
proceedings under the CAS Code and will not trigger the pendency of the arbitral
proceedings.

C Incomplete Request for Arbitration

If the requirements contemplated in Art. R38 are not met when the request for 23
arbitration is filed, the CAS Court Office may grant an appropriate, single short
deadline to the claimant to complete said request.21

15 Only arbitrators who are mentioned in the closed list may be selected, cf. Art. R33(2).
16 Cf. also Art. R29(1), second sentence.
17 Cf. Art. R38(2).
18 Art. R30, third sentence, implies that a power of attorney or written confirmation of representa-
tion can be submitted at a later stage.
19 Cf. also Art. R29(1), first sentence.
20 Art. R29(2).
21 Art. R38(3). Cf. also Art. 48(3).
 1510 Arbitration in Switzerland – The Practitioner’s Guide

24 If the claimant fails to complete its request within the set deadline, the CAS Court
Office does not proceed.22 Prior to the 2013 revision of the CAS Code, this provision
stated that failing to complete the request within the set deadline resulted in a
withdrawal of the request. The meaning of this revision and its consequences are not
clear at the moment. In any event, it cannot mean lis pendens for an indefinite period
of time. Therefore, it is expected that the CAS will issue an order of termination.

D Payment of Court Office Fee

25 The claimant must pay the non-refundable Court Office fee (which is a kind of
registration fee) at the time of filing a request for arbitration.23 Usually, such payment
is executed by a bank transfer; however, the CAS also seems to accept a cheque or
cash.24 Under the current version of the CAS Code this fee amounts to CHF 1’000.25
Although the CAS Code does not require this, it is recommended that evidence
proving the said payment be submitted together with the request for arbitration.
In the event that the Court Office Fee has not been paid upon, or shortly after, the
filing of the request, an additional time limit will be granted for this purpose.26 The
CAS will not proceed until the Court Office fee has been paid.27

E Effect of Filing the Request for Arbitration

26 By filing the request for arbitration the arbitration proceedings are initiated and
upon CAS Court Office’s receipt of such filing the arbitration proceedings commence.
However, unlike other well-established arbitration rules (such as the UNCITRAL
Rules, ICC Rules, Swiss Rules or WIPO Rules28), the CAS Rules do not define and
refer to the commencement of arbitration proceedings, but rather take reference to
the initiation29 or pendency30 of the arbitration proceedings.
27 One of the critical consequences of the filing of the request for arbitration is the
procedural effect of pendency (lis pendens).31 Pendency of proceedings is a concept
from procedural law, enshrined in the legislation of many countries, including
Switzerland.32 It designates the period of time between the date on which a judicial
authority is seized with a dispute and the date on which such dispute is settled by
a final and binding judicial decision and it has different procedural consequences.33
The consequences of lis pendens in court litigation and arbitration proceedings are,

22 Art. R38(3), at the end.

23 Art. R38(2).
24 Mavromati/Reeb, Art. R38, para. 22.
25 Art. 64.1(1), first sentence and Art. R65.2(2), first sentence.
26 Art. R38(3).
27 Art. R64.1(1), first sentence. See also Mavromati/Reeb, Art. R38, para. 22 stating the Court
Office fee is conditio sine qua non for the initiation of the arbitration proceedings.
28 Cf. Art. 3(2) UNICITRAL Rules, Art. 4(2) ICC Rules and Art. 3(2) Swiss Rules. Same view:
Mavromati/Reeb, Art. R38, para. 12.
29 Cf. Arts. 39, 49, 52, 67 CAS Rules.
30 Cf. Arts. 39, 52, 67 CAS Rules.
31 Oschütz, p. 276.
32 For civil proceedings at Swiss state courts see Arts. 59(2)(d) and 62–64 CCP, Arts. 27–30 LugC
and Art. 9 PILS.
33 Cf. Berger/Kellerhals, paras. 1017–1018.
Article R38 CAS Code – Noth/Haas 1511

however, not the same.34 Under Swiss arbitration law, pendency is to be determined
in accordance with Art. 181 PILS for international arbitration and in accordance
with Art. 372 ZPO for domestic arbitration. Neither of these two provisions define
the exact date and time on which the proceedings shall be deemed to have become
pending. It is suggested that the parties are free to agree on the exact date of
pendency and that in the absence of such an agreement, the date on which the
arbitration institution (CAS Court Office) receives the Request for Arbitration shall
apply.35 Once an arbitration is pending, it is a matter of the applicable procedure
rules to determine the procedural consequences of the pendency.36 Under the ZPO
and PILS, the main procedural effect of lis pendens is the barring effect within the
meaning of Art. 372(2) ZPO and Art. 9(1) PILS excluding that a state court and
arbitral tribunal decide on the same dispute between the same parties.37 Whether
the matter in dispute is identical or not is to be assessed in arbitration according to
the same criteria as before state courts.
The filing of the request for arbitration may also have legal consequences regarding 28
the merits of the dispute. Perhaps the most important one is the effect that such filing
has on the expiry of time limits, namely prescription periods (statute of limitations),
i.e., such periods usually stop running upon such filing.38

34 Cf. Berger/Kellerhals, paras. 1019–1020; Habegger, para. 3 Art. 372.

35 Cf. Kaufmann-Kohler/Rigozzi, para. 6.09; contra Berger/Kellerhals, para. 1031 and Girsberger/
Voser, 2016, para. 881 referring to the date at which the claimant sends its request for arbitration
to the institution or respondent.
36 Cf. Berger/Kellerhals, paras. 1065.
37 Cf. BGE 127 III 279 para. 2, holding that an arbitral tribunal with seat in Switzerland must
apply Art. 9(1) PILS if the same matter is pending at a state court in Switzerland or abroad.
38 Kaufmann-Kohler/Rigozzi, para. 6.06; Girsberger/Voser, 2016, para. 861.
 1512

Article R39: Initiation of the Arbitration by CAS and Answer –

CAS Jurisdiction
Unless it is clear from the outset that there is no arbitration agreement referring to
CAS, the CAS Court Office shall take all appropriate actions to set the arbitration
in motion. It shall communicate the request to the Respondent, call upon the
parties to express themselves on the law applicable to the merits of the dispute
and set time limits for the Respondent to submit any relevant information about
the number and choice of the arbitrator(s) from the CAS list, as well as to file an
answer to the request for arbitration.
The answer shall contain:
– a brief statement of defence;
– any defence of lack of jurisdiction;
– any counterclaim.
The Respondent may request that the time limit for the filing of the answer be fixed
after the payment by the Claimant of its share of the advance of costs provided by
Article R64.2 of this Code.
The Panel shall rule on its own jurisdiction, irrespective of any legal action already
pending before a State court or another arbitral tribunal relating to the same object
between the same parties, unless substantive grounds require a suspension of the
proceedings.
When an objection to CAS jurisdiction is raised, the CAS Court Office or the
Panel, if already constituted, shall invite the parties to file written submissions
on jurisdiction.
The Panel may rule on its jurisdiction either in a preliminary decision or in an
award on the merits.
Where a party files a request for arbitration related to an arbitration agreement
and facts similar to those which are the subject of a pending ordinary procedure
before CAS, the President of the Panel, or if she/he has not yet been appointed, the
President of the Division, may, after consulting the parties, decide to consolidate
the two procedures.

I PURPOSE OF THE PROVISION

1 Paragraphs 1 to 3 of Art. R39 set out the initial actions to be completed by the CAS
upon receipt of a request for arbitration and deal with the content of the respond-
ent’s answer to the request for arbitration and the respondent’s option to request
that the time limit for the filing of such answer be fixed after claimant’s payment
of its share of advance.
2 Paragraphs 4 to 6 of Art. R39 have been added in the course of the 2012 CAS Code
revision, in force as of 1 January 2012. These provisions, which from a systemic
point of view would have deserved entry as a distinct article within the CAS Code,
Article R39 CAS Code – Noth/Haas 1513

clarify that the Panel may decide on its own jurisdiction and that consolidation of
two proceedings is not excluded under the CAS Code.

II CONTENT OF THE PROVISION

A Initial Actions by CAS

1 Preliminary Examination of Apparent Lack of Arbitration Agreement

As soon as the request for arbitration is filed, the CAS Court Office will examine 3
whether it appears from the outset that there is manifestly no arbitration agreement
referring to the CAS.1 The relevant test under this provision is not whether the CAS
has jurisdiction but only whether there is an appearance of an arbitration agreement
referring to CAS.2 The purpose of this prima facie examination is to avoid committing
to cases that manifestly are not subject to an arbitration agreement referring to the
CAS.3 If the CAS Court Office comes to the conclusion that there is no arbitration
agreement referring to the CAS, it will not set the arbitration in motion and will
inform the parties accordingly. This decision of the CAS Court Office can be chal-
lenged before the Swiss Federal Supreme Court according to Art. 190(2)(b) PILS.

2 Appropriate Actions and Communication to Respondent

If the CAS Court Office is satisfied that there is an arbitration agreement, it takes 4
all appropriate actions to set the arbitration in motion.4 In particular it examines
whether the requirements of Art. R38 are met; if not, the CAS shall grant a single
short deadline to complete the request for arbitration.5 As soon as appropriate, it
shall communicate the request to the respondent and invite the respondent to file
its answer.6 According to Mavromati/Reeb, such communication is usually done via
courier, although further means of communication are permitted under Art. R31.7
The CAS may set two different deadlines for submitting the information about 5
the arbitrators and the answer to the request. The CAS Code does, however, not
provide any specific time period for these deadlines. Depending on the concrete
circumstances of the case this time period can vary; usually about 20 to 30 days is

1 Art. R39(1), first part of first sentence. In the course of the 2013 revision of the CAS Code,
the word “manifestly” has been deleted in the English version and the word “clear” has been
introduced; however, the French version has remained unchanged and still states “manifeste-
ment”. Against this background, it seems that the change of the wording is of no material
nature.
2 Cf. CAS 2000/A/297, R v. IOC, IWF et al., Award of 30 August 2000, p. 2 and CAS 2000/A/288,
T v. CNOSF, Award of 15 August 2000, p. 2 regarding Art. R52(1), first sentence.
3 Cf. Mavromati/Reeb, Art. R39, para. 2 stating that the control at this stage is a formal and not
substantial one.
4 Art. R39(1), second part of first sentence.
5 Art. R38(3); cf. also Art. R39(1), second sentence: If the claimant has not yet set out his point
of view on the issue of applicable law to the merits, the claimant shall be invited to express
himself on this issue within a set time limit.
6 Art. R39(1), second sentence.
7 Cf. Mavromati/Reeb, Art. R39, para. 4.
 1514 Arbitration in Switzerland – The Practitioner’s Guide

appropriate.8 Such deadline starts running in accordance with Art. R32. In addition,
it should be highlighted that the respondent may request that the time limit for filing
the answer be fixed after the payment by the claimant of its share of the advance of
costs contemplated by Art. R64.2.9 This provision helps to spare the respondent any
unnecessary expenditure. However, this provision cannot be invoked, vice versa, by
the Claimant with regards to its answer to the counterclaim.10

B Answer to Request for Arbitration

1 Content of the Answer

6 The answer to the request for arbitration shall contain (i) a statement of defense,
(ii) any defense of lack of jurisdiction, and (iii) any counterclaim.11 In addition, the
answer to the request shall contain any other objections12 and any further information
that may be of major importance for the arbitration, in particular the intention to
cause a third party to participate in the arbitration (joinder).13 In case three arbitrators
are to be appointed, the name of the arbitrator chosen by the respondent can be
mentioned as well. Moreover, it is very useful to provide information about the law
applicable to the merits and the language of the proceedings already at this stage.14
7 The statement of defense shall contain a response to the claimant’s request for relief
and a brief statement of the facts and legal arguments; such a statement is often only
a few lines long. Failing to set out relevant facts and/or legal arguments does not
preclude the respondent from doing so in his submissions according to Art. R44.1.
Even the defense of lack of jurisdiction and the counterclaim may still be filed at
a later stage, with the response.15 Counterclaims may result in the calculation of
additional advances.16

2 Form of the Answer

8 The answer to the request for arbitration must be in writing and duly signed by the
respondent or the latter’s representative. In the event of the representative signing,
a power of attorney shall be attached (if available).17 Oral answers, for instance by
telephone or in person at the offices at the CAS, are not accepted. There are no specific
rules regarding structure, style and length of the answer to the request of arbitration.
Usually, this depends on both the complexity of the case and the respondent’s

8 Cf. Mavromati/Reeb, R39 para. 7 stating that in practice it is usually about 20 days. Several
well established arbitration rules provide for 30 days from receipt of the request for arbitration
from the institution or claimant: e.g. Art. 3 para. 7 Swiss Rules, Art. 5 para. 1 ICC Rules, Art.
11 WIPO Rules.
9 Art. R39(3).
10 Cf. Mavromati/Reeb, Art. R39, para. 14.
11 Art. R39(2). Regarding the defense of lack of jurisdiction and counterclaim see also Art. R44.1.
12 E.g., set-off defenses or the request that the claimant be required to state his claims more
precisely.
13 Cf. Art. R41.2.
14 Cf. Art. R39(1), second sentence.
15 Cf. Art. R44.1(4).
16 Art. R64.2(1), second sentence.
17 Cf. Art. R30 allowing the submission of a written confirmation of representation at a later stage,
cf. Art. R30 para. 6 above.
Article R39 CAS Code – Noth/Haas 1515

strategy and cost-sensitivity. With regard to the language of the answer and the
number of copies to be submitted, reference can be made to Arts. R29 and R31(3).

3 Incomplete Answer

The deadline to file the answer to the request is extendable.18 In the event of the 9
answer to the request for arbitration not meeting the requirements of Art. R39, or of
the respondent not answering at all, the CAS Court Office shall grant an additional
deadline to the respondent to complete and file said answer.19 If this additional
deadline is missed by the respondent, the arbitration may proceed nonetheless.

C Jurisdiction of the CAS

Article R39(4), in force as of 1 January 2012, states that the Panel has the power 10
to decide upon its own jurisdiction (so called competence-competence).20 This
principle is in line with Art. 186(1) PILS and Art. 359 ZPO, may be considered the
internationally recognized standard,21 and belongs to the mandatory rules of the
Swiss lex arbitri.22 The principle was already recognized by the CAS before the 2012
revision of the CAS Code.23
The CAS may affirm its jurisdiction only if there is a valid arbitration agreement 11
referring a sports-related dispute to the CAS.24 The arbitration agreement is valid
where25 (i) the parties agree on the essential elements (essentialia negotii), (ii) the
formal requirements regarding the agreement are met, (iii) the subject-matter of
the dispute can effectively be submitted to arbitration (objective arbitrability),26
and (iv) the parties had the capacity to enter into a binding arbitration agreement
(subjective arbitrability).27 28 The main effect of a valid arbitration agreement is
to exclude the jurisdiction of State courts in favor of the resolution of the dispute
before an arbitral tribunal.29

18 Cf. Art. R32(2), first sentence.

19 Art. R38(3) by analogy.
20 Equally Art. R55(4).
21 Berger/Kellerhals, paras. 664 and 666.
22 Kaufmann-Kohler/Rigozzi, paras. 5.08–5.09; Poudret/Besson, para. 462; Berger/Kellerhals,
para. 670.
23 See, e.g., CAS 2009/A/1910, Telecom Egypt Club v. EFA, Award of 9 September 2010, para. 2;
CAS 2005/A/952, Cole v. FALP, Award of 24 January 2006, paras. 1–4; CAS 2004/A/748, ROC
& Ekimov v. IOC, USOC & Hamilton, Award of 27 June 2006, para. 6.
24 Cf. Art. R27.
25 The validity of the arbitration agreement needs to be examined separately from the validity of
the main contract (principle of separability), cf. Art. 178(3) PILS and Art. 357(2) ZPO, which
state that the validity of an arbitration agreement may not be challenged on the grounds that
the main contract between the parties is not valid.
26 Cf. Art. 177(1) PILS and Art. 354 ZPO; it is common ground among legal scholars that the rules
on arbitrability belong to the mandatory rules of the applicable lex arbitri, cf. Berger/Kellerhals,
para. 190; as all CAS arbitrations have their seat in Switzerland, arbitrability is exclusively
governed by the Swiss lex arbitri.
27 This requirement is of particular importance with regard to athletes being under age.
28 Regarding these requirements cf. Kaufmann-Kohler/Rigozzi, para. 5.01; Berger/Kellerhals, para.
687; Girsberger/Voser, 2016, para. 275.
29 Berger/Kellerhals, para. 494; Girsberger/Voser, 2016, para. 267; Kaufmann-Kohler/Rigozzi,
para. 3.32.
 1516 Arbitration in Switzerland – The Practitioner’s Guide

12 In the event of a defense of lack of jurisdiction being raised in the answer to the
request for arbitration, the court shall invite the parties to file written submissions
on the question of the jurisdiction of the CAS.30 The CAS shall examine all arguments
presented with unfettered powers of review.31 It shall rule on its jurisdiction either
in a preliminary decision (partial award) or in the final award.32 In cases where the
arbitral tribunal has ruled on its own jurisdiction through a partial award, the award
may only be appealed on the grounds of lack of jurisdiction through an immedi-
ate appeal against the partial award, in accordance with Arts. 186(2) and 190(3)
PILS.33 Objections regarding jurisdiction have to be raised prior to any defence on
the merits,34 i.e. with the answer to the request for arbitration, but in any event at
the latest with the response to the statement of claim.35 Once it has submitted its
response and expressed itself on the merits of the case, the respondent is deemed
to have accepted the jurisdiction and is therefore no longer admitted to raise the
defense of lack of jurisdiction.36 A vague reservation is not deemed to be a valid
plea of lack of defense.37
13 Article R39(4) corresponds to Art. 186(1bis) PILS and vests the CAS panel with the
power to rule on its jurisdiction irrespective of any legal action already pending
before the State court or another arbitral tribunal relating to the same object between
the same parties.38

D Consolidation

14 Article R39(6) was adopted on 1 January 2012.39 According to this provision, a

consolidation of two ordinary procedures before the CAS is acceptable where a
party files a request for arbitration related to an arbitration agreement and facts
similar to those which are the subject of pending proceedings. The main advantages
of consolidation are procedural efficiency and the avoidance of issuing conflicting
awards.40
15 This provision does not define the requirements necessary for such a consolidation.
In principle, a consolidation shall be admitted only provided that in view of all the
circumstances of the pending proceedings – in particular the parties involved and
links existing between the cases, the progress already made in the proceedings

30 Art. R39(5), first sentence, adopted as per 1 January 2012. See also Art. R44.1(4).
31 Berger/Kellerhals, para. 696.
32 Art. R39(5), second sentence, adopted as per 1 January 2012. In CAS arbitrations, there is no
presumption in favor of bifurcation. With regards to the terminology of preliminary and partial
award see AFT 4A_428/2011 of 13 February 2012, at 1.1.
33 BGE 121 III 495 para. 6d; Mavromati, CAS Bull. 2011/1, p. 32.
34 Art. 186(2) PILS; BGer. 4P.105/2006 para. 6.3; CAS 2013/A/3272, Ik-Jong Kim v. FILA, Award
of 28 February 2014, paras. 58–60.
35 See however, BGer. 4A_634/2014 para. 3.1 and CAS 2013/A/3272, Ik-Jong Kim v. FILA, Award
of 28 February 2014, paras. 58–60 referring to the answer to the request for arbitration.
Nevertheless, as the statement of claim often contains much more factual and legal information
than the request for arbitration, respondents possibly feel urged to raise an objection regarding
jurisdiction only after receipt of the statement of claim.
36 Mavromati, CAS Bull. 2011/1, p. 34; Poudret/Besson, para. 796.
37 BGE 128 III 50 para. 2c/aa.
38 See also Art. R55(4) and the relating commentary by Rigozzi and Hasler below.
39 Cf. also Art. R50(2).
40 See Art. R50 and the relating commentary by Rigozzi and Hasler below.
Article R39 CAS Code – Noth/Haas 1517

(including the question whether the panel is already formed),41 and the type of
the proceedings (including the applicable law and language, and whether they are
expedited or not) and the likely impact on the costs – fairness and efficiency will be
preserved.42 In any event, the parties must be consulted in advance. As a principle,
the decision to consolidate the proceedings may be taken even if not all parties
agree to such consolidation.43 The decision to consolidate cannot be challenged.
In case of consolidation, the references of all consolidated procedures in all com- 16
munications keep being used and no new case number will be created.44

41 One of the difficulties with consolidation of proceedings concerns the right of the parties to
choose their arbitrator, cf. Arts. R40 and R41.
42 Cf. BGer. 4A_312/2012 para. 4.3 concluding that the non-consolidation of proceedings at CAS
did not violate the right to be heard.
43 Cf. Mavromati/Reeb, Art. R39, paras. 23, 25 et seq.
44 Cf. Mavromati/Reeb, Art. R39, para. 24.
1518

Article R40: Formation of the Panel

Article R40.1: Number of Arbitrators

The Panel is composed of one or three arbitrators. If the arbitration agreement does
not specify the number of arbitrators, the President of the Division shall determine
the number, taking into account the circumstances of the case. The Division Presi-
dent may then choose to appoint a Sole arbitrator when the Claimant so requests
and the Respondent does not pay its share of the advance of costs within the time
limit fixed by the CAS Court Office.

Article R40.2: Appointment of the Arbitrators

The parties may agree on the method of appointment of the arbitrators from the
CAS list. In the absence of an agreement, the arbitrators shall be appointed in
accordance with the following paragraphs.
If, by virtue of the arbitration agreement or a decision of the President of the
Division, a sole arbitrator is to be appointed, the parties may select her/him by
mutual agreement within a time limit of fifteen days set by the CAS Court Office
upon receipt of the request. In the absence of agreement within that time limit,
the President of the Division shall proceed with the appointment.
If, by virtue of the arbitration agreement, or a decision of the President of the
Division, three arbitrators are to be appointed, the Claimant shall nominate its
arbitrator in the request or within the time limit set in the decision on the number
of arbitrators, failing which the request for arbitration is deemed to have been
withdrawn. The Respondent shall nominate its arbitrator within the time limit
set by the CAS Court Office upon receipt of the request. In the absence of such
appointment, the President of the Division shall proceed with the appointment in
lieu of the Respondent. The two arbitrators so appointed shall select the President
of the Panel by mutual agreement within a time limit set by the CAS Court Office.
Failing agreement within that time limit, the President of the Division shall appoint
the President of the Panel.

Article R40.3: Confirmation of the Arbitrators and Transfer of the File

An arbitrator nominated by the parties or by other arbitrators shall only be deemed
appointed after confirmation by the President of the Division, who shall ascertain
that each arbitrator complies with the requirements of Article R33.
Once the Panel is formed, the CAS Court Office takes notice of the formation and
transfers the file to the arbitrators, unless none of the parties has paid an advance
of costs provided by Article R64.2 of the Code.
An ad hoc clerk independent of the parties may be appointed to assist the Panel.
Her/his fees shall be included in the arbitration costs.
Article R40 CAS Code – Noth/Haas 1519

I PURPOSE OF THE PROVISION

Article R40 governs the formation of the Panel: Art. R40.1 deals with the number 1
of arbitrators, Art. R40.2 with the method of appointment of arbitrators and Art.
R40.3(1) with the confirmation of the Panel by the President of the Division.1 In
addition, Art. R40.3(3) governs the possible appointment of an ad hoc clerk. These
provisions ensure that the Panel is formed according to a clear and fair procedure.
With regards to multiparty arbitration, Art. R41 complements these rules on the
formation of the Panel.

II CONTENT OF THE PROVISION

A Number of Arbitrators (Article R40.1)

In principle, the parties are free to determine whether they wish to have a Panel 2
of one or three arbitrators. The parties’ agreement on the number of arbitrators for
the Panel must be respected by CAS.2 However, no number of arbitrators other than
one or three is accepted in arbitration proceedings in the CAS, as clearly stated by
the wording of Art. R40.1, first sentence.3 In the event the arbitration agreement
contemplates a different number of arbitrators (e.g. five), the parties have an
opportunity to amend the agreement and to determine the relevant number. If the
parties are unable to amend the agreement and jointly decide on a number of one or
three arbitrators, the Division President shall consider the originally chosen number
when determining the relevant number according to Art. R40.1, second sentence; a
provision for more than three arbitrators usually indicates that the parties wish to
have a multi-arbitrator panel, i.e., a Panel of three arbitrators.
In the event that the arbitration agreement does not contemplate any rule on the 3
number of arbitrators, and if the parties are unable to agree on such a number after
the filing of the request for arbitration,4 the President of the Division shall determine
the number of arbitrators.5 The President shall consider all relevant circumstances
of the case;6 this includes in particular the amount in dispute, the complexity of
the matter, the general impact of the case on the parties and the sports world, the
urgency of the case, and the cultural background of the parties. If the parties have
a very different cultural background, the appointment of three arbitrators is usually
appropriate as it might be difficult to find a sole arbitrator who does not have a
background which is closer to one of the parties. According to the provision of Art.
R40.1, third sentence, adopted in the course of the 2013 revision of the CAS Code,
the Division President may choose to appoint a sole arbitrator when the claimant so
requests and the respondent does not pay its share of the advance of costs within

1 For the appointment of arbitrators in case of multiparty arbitration see also Art R41.
2 BGer. 4A_282/2013 para. 5.2.
3 Also Art. S3(1); in addition, cf. Art. R41.1(3) providing for one or three arbitrators even in
case of multiparty arbitration with divergent interests. Contra cf. Rigozzi, para. 409; cautiously
addressing this aspect Mavromati/Reeb, Art. R40, para. 16.
4 Rigozzi, para. 938; Kaufmann-Kohler/Bärtsch, p. 75.
5 Cf. also BGer. 4A_476/2012 para. 3: If a party disagrees with the nomination of a sole arbitrator
by the Division President, it has to object at once and cannot successfully appeal at the Federal
supreme court arguing that a panel of three would have been competent for the proceedings
of the challenged award.
6 Art. R40.1, second sentence.
 1520 Arbitration in Switzerland – The Practitioner’s Guide

the set time limit.7 This provision enables the conduct of arbitration proceedings for
disputes with cost-sensitive or refractory respondents that are not able or willing
to pay their share as contemplated in Art. R64.2. However, this new provision does
not limit the discretion of the Division President to choose between the two options,
i.e. one sole arbitrator or three arbitrators.

B Method of Appointment of Arbitrators (Article R40.2)

4 As an expression of the principle of party autonomy, the parties are free to jointly
define the method of appointment of the arbitrators.8 This means that the parties
are allowed to agree on a different mechanism from that contemplated in Art.
R40.2(2) and (3), which applies if the parties are unable to reach such agreement.9
However, with regard to the appointment of arbitrators the parties are bound to the
mandatory closed CAS-list.10 The football list consists of nearly 100 and the general
list of more than 350 arbitrators.11
5 If a sole arbitrator is to be appointed, the parties may select him by mutual agreement
within a 15 day-time limit set by the CAS Court Office.12 This provision emphasizes
both party autonomy and the precedence given to the parties’ agreement. Should
no such agreement be reached, the President of the Division shall appoint the
arbitrator.13 Criteria to be considered when appointing the sole arbitrator shall be,
in particular, his availability, experience, knowledge of the applicable substantive
law, understanding of the sports concerned, language skills, personal and cultural
background and reputation. However, there is no rule in the CAS Code, or under
Swiss law, requiring that the sole arbitrator must not be of the same nationality as
one of the parties.14
6 If three arbitrators are to be appointed, each party shall nominate one arbitrator
with the first filing or within the time limit set by the CAS Court Office.15 When
contacting an arbitrator to check its availability and suitability for its nomination,
the contacting party should provide only some basic information about the dispute
and avoid discussing details of the case and even less seeking the arbitrator’s view
or advice on the case.16 If claimant fails to nominate its arbitrator, the request for
arbitration is deemed to have been withdrawn;17 if respondent fails to nominate
its arbitrator, the President of the Division shall appoint one in its stead.18 The
criteria applied are essentially the same as those applicable to the selection of a sole

7 Cf. also R50(1).

8 Art. R40.2(1), first sentence. Cf. also Art. 179 para. PILS.
9 Art. R40.2(1), second sentence.
10 Cf. Art. R33(2). Special lists exist with regard to (i) football-related disputes and (ii) each edition
of the Olympic Games and some other international sporting events.
11 For further information on the list see Arts. S13-S18. The lists are available at http://www.
tas-cas.org/en/arbitration/list-of-arbitrators-general-list.html.
12 Art. R40.2(2), first sentence.
13 Art. R40.2(2), second sentence.
14 Cf. BGE 84 I 39 para. 6b, confirming that it does not amount to a lack of impartiality for the
sole arbitrator to have the same nationality as one of the parties.
15 Art. R40.2(3), first and second sentences.
16 Coccia, International Sports Justice, p. 47.
17 Art. R40.2(3), first sentence; amended in the course of the 2013 revision of the CAS Code,
effective as of 1 March 2013.
18 Art. R40.2(3), third sentence.
Article R40 CAS Code – Noth/Haas 1521

arbitrator.19 Subsequently, the two appointed arbitrators shall select the President of
the Panel by mutual agreement within the deadline set by the CAS Court Office.20
Absent an agreement between the co-arbitrators, the President of the Division shall
appoint the President of the Panel.21

C Confirmation of the Arbitrators and Transfer of the File (Article

R40.3)

According to the wording of Art. R40.3(1), the President of the Division shall ascertain 7
that the arbitrators are independent and qualified as required in Art. R33. In effect,
the confirmation requirement strives to reduce the risk of future interference with
the arbitration. Refusal to confirm an arbitrator must remain exceptional, however,
since allowing the parties to appoint their arbitrator is considered an essential aspect
of arbitration. When deciding whether to confirm a party-appointed arbitrator who
has made a disclosure in his statement of independence, the Division President must
strike a balance between the party’s right to choose an arbitrator and the commitment
to ensure that all arbitrators are independent. In practice, a refusal here should be
limited to cases in which a challenge of the arbitrator is very likely to be successful.
The confirmation or refusal itself are not subject to recourse; however, a positive
confirmation decision may be overturned by a successful challenge or request for
removal as contemplated in Arts. R34 and R35.
After conducting the required examination, the President of the Division shall confirm 8
the appointment of the arbitrators.22 Only after this confirmation is the Panel formed.23
In practice, the CAS Court Office communicates to the parties a formal notice of
formation of the Panel. With the formation of the Panel, all contracts concluded
between the parties, arbitrators and the CAS become unconditionally effective, i.e.,
the contract between the parties and the arbitrators (receptum arbitri),24 the contract
between the parties and the CAS,25 and the contract between the arbitrators and the
CAS.26 Several rights and obligations arise from these three relationships.27

19 Cf. above, para. 5.

20 Art. R40.2(3), fourth sentence.
21 Art. R40.2(3), fifth sentence.
22 Art. R40.3(1).
23 BGer. 4A_620/2012 para. 3.4; cf. also Girsberger/Voser, 2016, para. 1933.
24 This contract creates the obligation for the arbitrators to decide the dispute between the
parties in return for a remuneration. Most scholars and the Swiss Federal Supreme Court
assume that this relationship is of a contractual nature, cf., e.g., Girsberger/Voser, 2016, para.
828; Kaufmann-Kohler/Rigozzi, para. 4.183; BGE 111 Ia 72 para. 2c., taking the view that the
receptum arbitri is a contract of procedural nature; contra Berger/Kellerhals, para. 967, who
consider that the relationship between the parties and the arbitrators is of a “statutory legal”
nature (“gesetzliches Schuldverhältnis” in German).
25 This contract empowers and obliges the CAS to organize and oversee the arbitration, in particular
in the event that a dispute arises between them, cf. Girsberger/Voser, 2016, para. 832. This
relationship is contractual in nature like the receptum arbitri.
26 The relationship between the arbitrators and the CAS is twofold: First, they enter into an agreement
when the arbitrator is selected for inclusion in the CAS list and commits to be available as an
arbitrator in CAS proceedings; second, they enter into an additional agreement when the arbitrator
agrees to an appointment for a specific case and undertakes to participate in this specific case.
27 For the various obligations and rights of an arbitrator out of his relationship with the parties,
see cf. Berger/Kellerhals, paras. 970–999; Girsberger/Voser, 2016, paras. 833–849; Kaufmann-
Kohler/Rigozzi, para. 4.188.
 1522 Arbitration in Switzerland – The Practitioner’s Guide

9 Once the Panel is formed, the CAS Court Office transfers the file to the arbitrators.28
If the parties have not paid the advance of costs provided by Art. R64.2, the CAS
Court Office may hold off on the transfer of the file until the payment is executed.29

D Appointment of Ad Hoc Clerk (Article R40.3)

10 The Panel may be assisted by an ad hoc clerk.30 The appointment of an ad hoc

clerk seems to become a standard practice. It is, however, at the discretion of the
President of the Panel to decide whether a clerk is to be appointed. Ad hoc clerks
are usually young qualified lawyers.31 Although the ad-hoc clerks have from a legal
point of view no power, their actual influence on the outcome of the case may be
very strong in fact.32
11 Like the arbitrators, an ad hoc clerk must be independent and impartial.33 In the
event of a party contesting the independence of the clerk, it may challenge the
latter’s appointment in accordance with Art. R34.34
12 The tasks of an ad-hoc clerk depend on the circumstances of the arbitration
proceedings and namely instructions of the panel (mainly Chairman). Usually, this
includes assistance in the hearing and drafting parts of the award in accordance
with the Panel’s (mainly Chairman’s) instructions.35 Distinction has to be made
between an ad-hoc clerk and CAS Counsel who monitors the case by controlling
over the procedural steps and progress in order to warrant the smooth functioning
of the arbitration.36
13 The clerk’s fees are included in the arbitration costs.37 Pursuant to Annex II to the
CAS Code, the ad hoc clerk’s remuneration is fixed by the Secretary General of the
CAS on the basis of the work reports provided and of the time reasonably devoted
to the case at stake.

28 Art. R40.3(2).
29 Art. R40.3(2).
30 Art. R40.3(3), first sentence.
31 The CAS has established an unofficial list of ad hoc clerks. Cf. also Mavromati/Reeb, Art. R40,
para. 36 stating that sometimes arbitrators wish to engage their own assistants to act as ad-hoc
clerks, and that this practice is not favored by the CAS Court Office, but sometimes accepted.
32 Cf. Mavromati/Reeb, Art. R40, para.38 stating that ad-clerks must not influence in any manner
the panel’s decision.
33 Art. R40.3(3), first sentence.
34 Contra: Mavromati/Reeb, Art. R40, para.41, though also indicating that up to now in no CAS
case doubts on an ad-hoc clerk’s independence have led to real issues.
35 Cf. Mavromati/Reeb, Art. R40, para.37.
36 Cf. Mavromati/Reeb, Art. R40, para.39.
37 Art. R40.3(3), second sentence; cf. also R64.4.
 1523

Article R41: Multiparty Arbitration

Article R41.1: Plurality of Claimants / Respondents

If the request for arbitration names several Claimants and/or Respondents, CAS
shall proceed with the formation of the Panel in accordance with the number of
arbitrators and the method of appointment agreed by all parties. In the absence of
agreement, the President of the Division shall decide on the number of arbitrators
in accordance with Article R40.1.
If a sole arbitrator is to be appointed, Article R40.2 shall apply. If three arbitrators
are to be appointed and there are several Claimants, the Claimants shall jointly
nominate an arbitrator. If three arbitrators are to be appointed and there are several
Respondents, the Respondents shall jointly nominate an arbitrator. In the absence
of such a joint nomination, the President of the Division shall proceed with the
particular appointment.
If there are three or more parties with divergent interests, both arbitrators shall be
appointed in accordance with the agreement between the parties. In the absence
of agreement, the arbitrators shall be appointed by the President of the Division
in accordance with Article R40.2.
In all cases, the arbitrators shall select the President of the Panel in accordance
with Article R40.2.

Article R41.2: Joinder

If a Respondent intends to cause a third party to participate in the arbitration,
it shall so state in its answer, together with the reasons therefor, and file an ad-
ditional copy of its answer. The CAS Court Office shall communicate this copy to
the person whose participation is requested and fix a time limit for such person to
state its position on its participation and to submit a response pursuant to Article
R39. It shall also fix a time limit for the Claimant to express its position on the
participation of the third party.

Article R41.3: Intervention

If a third party wishes to participate as a party to the arbitration, it shall file an
application to this effect with the CAS Court Office, together with the reasons
therefor within 10 days after the arbitration has become known to the intervenor,
provided that such application is filed prior to the hearing, or prior to the closing
of the evidentiary proceedings if no hearing is held. The CAS Court Office shall
communicate a copy of this application to the parties and fix a time limit for them
to express their position on the participation of the third party and to file, to the
extent applicable, an answer pursuant to Article R39.

Article R41.4: Joint Provisions on Joinder and Intervention

A third party may only participate in the arbitration if it is bound by the arbitration
agreement or if it and the other parties agree in writing.
Upon expiration of the time limit set in Articles R41.2 and R41.3, the President
of the Division or the Panel, if it has already been appointed, shall decide on the
 1524 Arbitration in Switzerland – The Practitioner’s Guide

participation of the third party, taking into account, in particular, the prima facie
existence of an arbitration agreement as contemplated in Article R39. The decision
of the President of the Division shall be without prejudice to the decision of the
Panel on the same matter.
If the President of the Division accepts the participation of the third party, CAS
shall proceed with the formation of the Panel in accordance with the number of
arbitrators and the method of appointment agreed by all parties. In the absence
of agreement between the parties, the President of the Division shall decide on
the number of arbitrators in accordance with Article R40.1. If a sole arbitrator is
to be appointed,
Article R40.2 shall apply. If three arbitrators are to be appointed, the arbitrators
shall be appointed by the President of the Division and shall nominate the President
of the Panel in accordance with Article R40.2.
Regardless of the decision of the Panel on the participation of the third party, the
formation of the Panel cannot be challenged. In the event that the Panel accepts
the participation, it shall, if required, issue related procedural directions.
After consideration of submissions by all parties concerned, the Panel shall
determine the status of the third party and its rights in the procedure.
After consideration of submissions by all parties concerned, the Panel may allow
the filing of amicus curiae briefs, on such terms and conditions as it may fix.

I PURPOSE OF THE PROVISION

1 Article R41 contemplates a set of rules in relation to multiparty arbitration, which

are aimed at ensuring procedural efficiency, saving time and money and preventing
conflicting results.1 Art. R41.1 deals with plurality of claimants and respondents,
namely the formation of the panel in such constellations, and Art. R41.2 to R41.4
with the participation of third parties, in particular the joinder and intervention.
2 Article R41 applies also to appeal arbitration proceedings.2

II CONTENT OF THE PROVISION

A Plurality of Claimants and/or Respondents

1 General

3 Admitting cases involving a plurality of claimants and/or respondents may be

considered an international standard in arbitration and litigation. Art. R41.1 expresses
that this standard also applies to CAS arbitration proceedings.3 Such standard is

1 Mavromati/Reeb, Art. R41, para. 59.

2 Art. R54(4), except that the President of the Panel is appointed by the President of the Appeals
Division.
3 The title of Art. R41.1 also clearly indicates this.
Article R41 CAS Code – Noth/Haas 1525

indispensable because there is an unlimited number of scenarios where claimants

and/or respondents must act jointly due to the legal relationship among them.
However, Art. R41.1 does not deal with such legal relationship, which is a matter
of substantive laws,4 but with the appointment of the Panel in multi-party cases,
i.e. plurality of claimants and/or respondents.
All formal parties have the same procedural rights in the proceedings. However, the 4
CAS Code does not further state how the joint claimants and/or respondents have
to exert their procedural rights. It is understood that the submissions to be filed
with the CAS must mention all claimants and/or respondents and must be signed
by all formal parties.5

2 Appointment of Arbitrators

Article R41.1 contains a set of rules governing the appointment of arbitrators in cases 5
involving a plurality of claimants and/or respondents. If several claimants and/or
respondents are involved from the outset, the parties are free to jointly decide on
both the number of arbitrators and the method of appointment.6 This provision
expresses party autonomy. The number of arbitrators may be either one or three,
but no other number is accepted under the CAS Code.7
If the parties are unable to reach an agreement on the number of arbitrators, the 6
President of the Division shall determine the number in accordance with Art.
R40.1, i.e., taking into account all relevant circumstances of the case, including
the complexity of the case, the amount in dispute, the impact of the dispute and
decision on the parties and the sports world at large, the urgency of the case, as well
as the cultural background of the parties.8 In many cases, party plurality increases
the complexity of the case, so that multiparty arbitration tends to justify a panel of
three arbitrators. Similarly, cultural diversity usually justifies a three-member panel
as it is often difficult to find a sole arbitrator who is not closer to the culture of one
of the parties. A sole arbitrator might be suitable in simple, urgent cases.
In the event of the parties being unable to reach agreement on the method of appoint- 7
ment, Art. R41.1(2) applies. If a sole arbitrator is to be appointed, Art. R40.2(2) shall
apply, i.e., the President of the Division appoints the arbitrator at his own discretion
if the parties are unable to select the sole arbitrator by mutual agreement within 15
days.9 If three arbitrators are to be appointed and there are several claimants and/
or respondents with the same interests, the said claimants and/or respondents shall

4 The PILS Chapter 12 does not deal with the joinder of parties (“Streitgenossenschaft” in German).
However, Art. 376(1) ZPO contains the following provision concerning the joinder of parties:
Arbitration may be initiated by or against joint parties if a) all the parties are connected among
themselves by one or more corresponding arbitration agreements; and b) the asserted claims are
identical or factually connected. Further, see also Arts. 70–72 governing the joinder of parties for
civil proceedings in Switzerland and differentiating between mandatory and voluntary joinder.
It is worth mentioning that the Confederation’s unofficial English translation of the ZPO uses
the term “joinder” for both the “Streitgenossenschaft” and the “Streitverkündung”, which are
two different legal concepts dealing with multi-party matters.
5 Cf. also Art. R38.
6 Art. R41.1(1), first sentence.
7 Cf. Art. R40.1, first sentence.
8 Art. R41.1(1), second sentence.
9 Art. R41.1(2), first sentence.
 1526 Arbitration in Switzerland – The Practitioner’s Guide

jointly nominate one arbitrator.10 Failing such joint nominations, the President of
the Division shall appoint the arbitrator(s).11 Where there are three or more parties
with divergent interests, the two party-appointed arbitrators shall be nominated by
agreement between these parties. In the absence of such agreement the appointments
will be made by the President of the Division in accordance with Art. R40.2.12
8 In all cases mentioned above, the President will then be selected by the two arbitra-
tors by mutual agreement and in the absence of such agreement by the President
of the Division.13

B Participation of Third Parties

9 The term “participation” used in Arts. R41.2-R41.4 is very broad and refers to
different instances of participation by a third party: Firstly, such a third party may
participate as a formal party to the proceedings, be it as creditor/claimant or debtor/
respondent (participation as a formal party). Secondly, such a third party may be
a participant directly or indirectly seeking to preserve its own interests or a party’s
interests, although not a creditor/claimant or debtor/respondent (participation as
a non-party).
10 The participation in pending arbitration proceedings as a party can happen in two
forms only, i.e. joinder or intervention, both requiring an arbitration agreement.14
It is questionable whether the CAS Code contains an exclusive list of the possible
forms of participation as a non-party or whether it is open to various possibilities.15
It is noteworthy that the term “joinder” in Art. R41.2 refers to any kind of “participa-
tion in the arbitration”. Thus, the possible forms of participation under Art. R41.2
(joinder) are broadly worded. Within the scope of application of this provision the
Panel has significant discretion in determining “the status of the third party and its
rights” in relation to these alternative forms of participation.16 The provision, thus,
enables the definition of a specific status that allows the best possible “integration”
of the third party in the proceedings.
11 In contrast to Art. R41.2, the term “intervention” used in Art. R41.3 is confined –
subject to the exception contained in Art. 41.4 (6) – to the form of participation as
a formal party. This follows from the wording of the article (“If a third party wishes
to participate as a party to the arbitration …”). Consequently, within the scope of

10 Art. R41.1(2), second and third sentences.

11 Art. R41.1(2), fourth sentence.
12 Art. R41.1(3); BGer. 4P.105/2006 para. 5.2.
13 Art. R41.1(4).
14 CAS 2009/A/1870, WADA v. J. Hardy & USADA, Award of 21 May 2010, para. 23 stating that
a third party can participate as a formal party to pending CAS proceedings in two situations,
i.e., joinder and intervention; CAS 2006/A/1155, Giovanella v. FIFA, para. 54, mentioned in
Coccia, International Sports Justice, p. 50.
15 Cf., however, CAS 2008/A/1639, RCD Mallorca v. FA & Newcastle United, Award of 24 April
2009, para. 13, which was rendered before the 2010 revision of the CAS Code, and stated that
the CAS Code enumerates in an exhaustive manner all possible forms of participation in a
proceeding before the CAS, i.e., as an appellant/claimant, a respondent, joinder or intervenor.
16 Art. R41.4(5) (adopted as of 1 January 2010). Cf. also Art. R41.4(2) and Art. R41.4(3), first
part of the first sentence, according to which the President of the Division or Panel, if already
appointed, will do a first examination and decide on the participation itself (but not on the
status and rights of this third party).
Article R41 CAS Code – Noth/Haas 1527

application of Art. R41.3 a person can only intervene in the proceedings as a party
(or – in line with Art. R41.4 (6) – as amicus curiae). However, the provision does
not provide for any other forms of participation.17 Insofar, Art. R41.3 is different
e.g. from Art. 4 (2) of the Swiss Rules that explicitly covers all forms of participa-
tion in a procedure (party, interested party or amicus curiae). Despite this rather
clear wording, some CAS Panels have – also in the context of Art. R41.3 admitted
intervenors as “third parties” with limited party rights whereas the claimant and
respondent were considered the “main parties”.18
Such participation may occur from the beginning of the arbitration proceedings 12
or commence at a later time, but in any event before the hearing or closing of the
evidentiary proceedings.

1 Joinder (Articles R41.2 and R41.4)

The joinder is possible only upon the request of the respondent and not the claim- 13
ant / appellant.19 The latter has the possibility to name the person concerned in its
statement of claim / statement of appeal and thereby initiate a proceeding against a
plurality of respondents. If a respondent intends to cause a third party to participate
in the arbitration as a formal party or in another role, it must mention this in its
answer20 and set out the reasons for the involvement of the third party and the latter’s
status and rights.21 Unlike intervention, the notion of joinder refers not only to a role
as a formal party in the arbitration, but covers other forms of participation as well.
This becomes clear already by comparing the wording of Art. R41.2, first sentence
reading “participate in the arbitration” with the one of Art. R41.3, first sentence
reading “participate as a party to the arbitration”. The CAS Rules do not further
define the term of joinder, neither the PILS Chapter 12 (governing international
arbitration in Switzerland).22 It is suggested that joinder in the meaning of Art. R41
is a broad term allowing different forms of participation upon a party’s request to
join the proceedings, be it as a formal party or as a non-party.23

17 CAS 2015/A/4259, Valentino Rossi v. FIM, Order on Request for a Stay and Intervention of 5
November 2015, paras. 37 et seq.
18 CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/FC Sion, Award of 31 January 2012, paras.
1–6.
19 CAS 2006/A/1155 Giovanella v. FIFA, Award of 22 February 2007, para. 56.
20 If the reasons for causing a third party to participate in the proceedings become known only
after having filed the answer to the request for arbitration, the respondent must notify it without
delay (i.e. within 10 days) after the reasons for it have become known, but in any event before
the hearing or the closing of the evidentiary proceedings, cf. Art. R41.3, first sentence (by
analogy).
21 Art. R41.2, first sentence.
22 The PILS Chapter 12 (governing international arbitration in Switzerland) entirely fails to
establish rules on multi-party constellations; by contrast, the ZPO Part 3 (governing national
arbitration in Switzerland) contains in Art. 376(3) a provision dealing with the joinder of a
person notified as a party to an action (“Streitverkündung” in German).
23 Cf. also Art. 376(3) and Arts. 78–80 ZPO dealing with the joinder in the meaning of “Streit-
verkündung” and allowing different forms of participation. Cf. also Arts. 70–72 ZPO governing
the joinder in the meaning of “Streitgenossenschaft”.
 1528 Arbitration in Switzerland – The Practitioner’s Guide

14 Even if this is not expressly contemplated in the CAS Code, the claimant may also
try to cause a third party to participate in the arbitration.24 The request for such
participation must be put forward without delay (i.e. within 10 days) after the reasons
for causing a third party to join have become known, but in any event before the
hearing or the closing of the evidentiary proceedings.25
15 The CAS Court Office will forward one copy of the request to the person whose
participation is sought and fix an appropriate time limit for the said person to set
out its position on participation and its view on the dispute.26 The CAS Court Office
shall also inform the other party in the arbitration, fixing an appropriate time limit
for him to set out his position on the participation of the third party.27
16 If the Panel is not yet appointed, the President of the Division shall decide on the
participation of the third party.28 This decision is without prejudice on the subsequent
decision of the Panel29 and no appeal is possible against it.30 The Panel will later
decide on the status of the third party and its rights in the procedure.31 The CAS
Code does not provide specific guidance as to the criteria on which the decision
on the status and rights of the participant is to be based, as this depends on the
specificities of the case and in part also on the law applicable to the merits. In any
event, the Panel must take into account all circumstances, in particular the interests
of the participant and the parties.

2 Intervention (Articles R41.3 and R41.4)

17 If a third party wishes to participate as a (formal) party in a pending arbitration, it

has the option to intervene pursuant to Art. R41.3, sentence 1.32

a Formal Requirements

18 The intervenor must file a reasoned application with the CAS Court Office to this
effect.33 The formal requirements follow the type of procedure (appeals arbitration
procedure or ordinary arbitration procedure). Thus, in case a party intends to
intervene in an appeals arbitration procedure the application must follow the formal

24 Contra Mavromati/Reeb, Art. R41, paras. 59 and 81; Coccia, International Sports Justice,
p.51; CAS 2012/A/2981, Clube Desportivo Nacional v. FK Sutjeska, award of 27 March 2013,
para. 50 regarding appeal proceedings stating “the joinder of a third party by the Appellant
is not contemplated by the Code, which grants such possibility only to the respondent”; CAS
2006/A/1155, Giovanella v. FIFA, para. 56 mentioned in Coccia, International Sports Justice,
p. 51.
25 Cf. Art. R41.3, first sentence (by analogy).
26 Art. R41.2, second sentence.
27 Art. R41.2, third sentence.
28 Art. R41.4(2), first sentence.
29 Art. R41.4(2), second sentence.
30 Mavromati/Reeb, Art. R41, para. 85.
31 Art. R41.4(5).
32 The intervention is also foreseen in Art. 376(3) ZPO (governing national arbitration in Swit-
zerland), but not in the PILS Chapter 12 (governing international arbitration in Switzerland).
Cf. also Arts. 73–77 ZPO dealing with intervention in civil proceedings.
33 Art. R41.3, first part of first sentence. Cf. also Mavromati/Reeb, Art. R41, para. 89 stating that
it is important to show the legal interest of the intervenor in the outcome of the case.
Article R41 CAS Code – Noth/Haas 1529

requirements contained in Art. R48.34 Furthermore, the application must be filed

within ten days once the arbitration has become known to the intervenor, and in
any event before the hearing, or, where no hearing is held, before the closing of the
evidentiary proceedings.35 Becoming known of the arbitration proceeding does not
require that the intervenor is notified of the request for arbitration or statement of
defense.36 If these deadlines are not met, the right to intervene as a party expires.37
Compliance with these deadlines is controlled by the Panel ex officio.38 Especially
in complex cases, ten days may not be sufficient to carefully set out the reasons
for the intervention. It must therefore suffice for the intervenor to file a (simple)
notification of intervention within this time limit.
The CAS Court Office will communicate a copy of the application to the parties and 19
set an appropriate time limit for them to express their position on the participation
of the intervenor.39
Under Art. R41.4(5), the rights of the intervenor may be limited, for instance, 20
regarding the total number of pages allowed for its written submissions or the time
allotted for its oral pleadings at the hearing.40

b Substantive Requirements

Article R41.3 requires that an arbitration proceeding is pending and that the party 21
requesting the intervention must be either bound by the arbitration agreement or
the other parties must agree in writing to the request of intervention (see in detail
para. 27 below). The question is, whether these prerequisites are exhaustive. In the
legal literature it is undisputed that Art. 376(3) ZPO that deals with the question
of intervention in domestic arbitration proceedings and which is comparable to
Art. R41.4, does not list the prerequisites for intervention exhaustively.41 Instead,
the prerequisites must be derived from the very purpose of the procedural institute
of intervention. The latter serves procedural efficiency (coordination between
several – potential – proceedings through a single and uniform decision) as well as
the protection of the parties to the proceeding from undue interference from third
persons.42 Accordingly, there must be a legitimate interest involved for the third
party in order to be admitted as a party.43 The view held here is also supported by
a number of CAS decisions.44

34 CAS 2008/A/1513, Emil Hoch v. FIS & IOC, Decision on Intervention of 27 June 2008, para. 17.
35 Art. R41.3, second part of first sentence.
36 Beloff/Netzle/Haas, E3.107, also stating that the term “known” should be interpreted in a broad
sense to protect the parties to the procedure.
37 Cf. CAS 2012/A/2705, Le Mans FC v. FIFA (Olympique Bamako), order of 28 June 2012, para.
17 et seq.
38 Mavromati/Reeb, Art. R41, para. 88.
39 Art. R41.3, second sentence.
40 CAS 2011/O/2574, UEFA v. Olympique des Alpes SA v. FC Sion, Award of 31 January 2012, para.
105.
41 Netzle, para. 10 at Art. 376 ZPO; Pfisterer, para. 26 at Art. 376 ZPO; cf. also Dasser, para. 12
at Art. 376 ZPO.
42 CAS 2015/A/4259, Valentino Rossi v. FIM, Order on Request for a Stay and Intervention of 5
November 2015, para.42.
43 See also Mavromati/Reeb, Art. R41, para. 80.
44 CAS 2008/A/1513, Emil Hoch v. FIS & IOC, Decision on Intervention of 27 June 2008, para. 18;
CAS 2015/A/4259, Valentino Rossi v. FIM, Order on Request for a Stay and Intervention of 5
 1530 Arbitration in Switzerland – The Practitioner’s Guide

22 The required legal interest can neither be equated to a purely financial nor to a
mere sportive interest.45 Instead, a legal interest requires that a person is adversely
affected in its legal sphere or position by the outcome of the arbitration procedure.
The impact of the person’s legal sphere may derive from the procedural status of
the intervenor in the previous instance at the federation level.46 A legal interest may
also follow from substantive rules and regulations, e.g. if the rules and regulations of
the federation attribute a claim to one member to issue a decision against a fellow
member. However, absent any specific provision to that effect, the latter is not the
case in disciplinary matters. A legal interest may also follow, in appeals arbitration
proceedings, from the third party’s right to appeal the decision. Panels have held
that “… at least … all those who could have challenged the decision appealed from
or those who would be affected by any reversal of such decision are clearly entitled
to become parties to the arbitration proceedings.”47 Of course, the parties are free
to define the threshold of legal interest in the applicable rules and regulations of
the respective federation.48

3 Amicus Curiae and Other Special Forms of Participation

23 Since the revision of 2010, the CAS Code expressly mentions the amicus curiae,49
which literally translated means “friend of the court”.50 According to the under-
standing of CAS, this “describes an instrument allowing someone who is not
party to a case to voluntarily offer special perspectives, arguments or expertise
on a dispute, usually in the form of a written amicus curiae brief or submission,
in order to assist the court in the matter before it”.51 The reasons put forward in
favor of amicus participation are – inter alia – that proceedings affecting the public
interest are not concluded collusively, unrepresented persons and public interests
are protected by amicus participation and that the transparency that goes along
with amicus participation strengthens the confidence in the outcome of the arbitral
process.52 Thus, in particular where public sportive interests are at stake, amicus
participation can be admitted. In the CAS’s practice, amicus curiae briefs are not

November 2015, paras. 42 et seq.; CAS 2010/A/2296, Simon Vroemen v. Nederlandse Atletiek
Unie, Decision on Intervention of 11 January 2011, para. 18.
45 CAS 2015/A/4259, Valentino Rossi v. FIM, Order on Request for a Stay and Intervention of 5
November 2015, para. 44.
46 CAS 2015/A/4259, Valentino Rossi v. FIM, Order on Request for a Stay and Intervention of 5
November 2015, para. 44.
47 CAS 2008/A/1513, Emil Hoch v. FIS & IOC, Decision on Intervention of 27 June 2008, para. 18:
CAS 2010/A/2296, Simon Vroemen v. Nederlandse Atletiek Unie, Decision on Intervention of 11
January 2011, para. 18; CAS 2005/A/881, Annus v. HAA, Decision on Intervention of 4 August
2005, para. 17; CAS 2006/A/1166, FC Aarau AG v. Swiss Football League, Vorentscheidung of
6 December 2016; CAS 2004/A/748, Russian Olympic Committee & Viatcheslav Ekimov v. IOC,
27 June 2006.
48 CAS 2015/A/4259, Valetino Rossi v. FIM, Order on Request for a Stay and Intervention of 5
November 2015, para. 43.
49 Cf. Art. R41.4(6).
50 Regarding its origin, see Mavromati/Reeb, Art. R41, para. 95.
51 CAS 2008/A/1639, RCD Mallorca v. FA & Newcastle United, Award of 24 April 2009, para. 9;
CAS 2015/A/4259, Valentino Rossi v. FIM, Order on Request for a Stay and Intervention of 5
November 2015, para. 46.
52 CAS 2015/A/4259, Valentino Rossi v. FIM, Order on Request for a Stay and Intervention of 5
November 2015, para. 47.
Article R41 CAS Code – Noth/Haas 1531

uncommon for sporting federations.53 However, also athletes may file an amicus
brief in the public (sportive) interests.54 The Panel may allow the filing of amicus
curiae briefs only after consideration of all parties’ submissions.55 In the absence
of express consent by the parties, the Panel must consider all the circumstances
of the case and balance all interests at stake when deciding on the admission of
an amicus curiae brief; in particular, the interests of the amicus himself and of
other third parties (including the public) in the subject matter may be crucial.56
The Panel may also admit the amicus for a limited scope or specific issues only; it
is up to the Panel’s discretion to determine the scope and conditions of the brief.
As a principle, the Panel should accept those amicus’ briefs whose positive effects
prevail the possible disadvantages.57 If accepted, the submitted briefs have to be
considered in the decision finding and the Panel should indicate in the award the
impact of the brief on its decision.58
In some CAS proceedings, third parties such as WADA or the President of a league 24
of a federation who is respondent59 were admitted to attend hearings as “observers”.
Occasionally, the CAS admits the specific participation of parties who are actually 25
excluded from the proceedings because they have failed to comply with certain
procedural rules: for instance, with the consent of the parties involved, the CAS has
admitted participation as “interested parties” by parties that had failed to bring an
appeal within the applicable time limit and allowed the filing of submissions setting
out these parties’ points of view.60
The CAS Code does not contain any rules as to whether or not an amicus curiae, 26
ancillary party or other special participant may attend the hearing, may request
the discovery of documents, may request a copy of the parties’ filing or may have
to contribute to the costs of the proceedings (etc.).61 The Panel’s discretion is large
and it must balance all interests at stake when deciding on these matters. In any
event, participants not subject to the arbitration agreement should be requested to
confirm that they are and will continue to be bound by the confidentiality provisions
of Art. R43 of the CAS Code.

53 Cf., e.g., CAS 2008/A/1639, RCD Mallorca v. FA & Newcastle United, Award of 24 April 2009,
para. 17 – amicus curiae brief rejected; CAS 2008/A/1517, Ionikos FC v. C, Award of 23 February
2009, para. 19 – amicus curiae brief admitted; these two cases were rendered before the 2010
revision of the CAS Code which introduced the instrument of amicus curiae briefs in Art. R41.4.
54 CAS 2015/A/4259, Valentino Rossi v. FIM, Order on Request for a Stay and Intervention of 5
November 2015, para. 48.
55 Art. R41.4(6).
56 Cf. CAS 2008/A/1639, RDC Mallorca v. FA & Newcastle United, Award of 24 April 2009, paras.
11 and 16 where it is stated that the admission of such briefs requires that the amici must have
a vital interest in the subject matter and that the dispute has a public dimension.
57 Mavromati/Reeb, Art. R41, para. 101.
58 Mavromati/Reeb, Art. R41, para. 104; cf. also CAS 2015/A/4259, Valentino Rossi v. FIM, Order
on Request for a Stay and Intervention of 5 November 2015, paras. 49 et seq.
59 CAS 2013/A/3228, E. V. Levchenko v. RFA, award of 15 January 2014, paras. 3.21 et seq.
60 CAS 2004/A/748, ROC & Ekimov v. IOC, USOC & Hamilton, Award of 27 June 2006, cf. p. 5.
61 Beloff/Netzle/Haas, E3.108 regarding amicus curiae.
 1532 Arbitration in Switzerland – The Practitioner’s Guide

4 Arbitration Agreement: A Requirement?

27 Article R41.4(1) states that a third party may only participate in an arbitration if
it is bound by the arbitration agreement62 or if it and the other parties agree on
this in writing.63 64 Whether or not the intervening party was already a party in the
proceedings before the internal bodies of the federation that issued the decision being
the subject matter before CAS is immaterial.65 Art. R41(1) applies to participation
of a third party as further formal party, either via joinder or intervention.66 In the
legal literature it is disputed whether or not an intervention requires – from the
viewpoint of the PILS – that the intervenor be bound by the arbitration agreement
or not.67 The purpose of Art. R41.4 is to settle this (disputed) question within the
scope of application of the CAS Code.68 This solution is similar to Art. 376(3) ZPO
stating that the intervention of a third party and the joinder of a person notified as
a party to an action require an arbitration agreement between the third party and
the parties to the dispute and are subject to the consent of the arbitral tribunal.69
Where a party joins as non-party, for instance as an ancillary party or as an amicus,
Art. R41.4(1) does not apply.

5 Appointment of Arbitrators

28 The parties are free to jointly decide on both the number of arbitrators and the
method of appointment.70 This provision is an expression of party autonomy. In
the absence of such agreement, the President of the Division will decide on the
number.71 If a sole arbitrator is to be appointed, he may be selected by the parties
by mutual agreement or if such agreement cannot be reached, by the President of
the Division.72 If three arbitrators are to be appointed, the President of the Division
shall select two arbitrators; and these two arbitrators shall select the President.73
When so proceeding, the President must consider the interests, views, and further
comments of the parties.

62 For the validity of arbitration agreements see Art. R28 paras. 10 et seq.
63 Expressly confirmed in CAS 2010/A/2296, Simon Vroemen v. Nederlandse Atletiek Unie, Decision
on Intervention of 11 Jamuary 2011, paras. 14 et seq.; CAS 2008/A/1513, Emil Hoch v. FIS &
IOC, Decision on Intervention of 27 June 2008, para. 14; CAS 2009/A/1870, WADA v. J. Hardy
& USADA, Award of 21 May 2010, para. 23; CAS 2011/A/2377, Salernitana Calcio 1919 S.p.A.
v. FIFA, order of 23 June 2011, para. 14.
64 The existence of such agreement will be examined by the President of the Division or the Panel,
if already appointed, cf. Art. R41.4(2).
65 Contra CAS 2011/A/2377, Salernitana Calcio 1919 S.p.a. v. FIFA, Order on Request for Provi-
sional Measures and River Plate Intervention of 23 June 2011, para. 7.5 seq; CAS 2006/A/1155
Giovanella v. FIFA, Award of 22 February 2007, para. 55.
66 CAS 2008/A/1641, NAOC v. IAAF & USOC, Award of 6 March 2009, cf. pp. 4–5; CAS 1997/O/168,
FFSA, FIC, FNSA v. FISA, Award of 29 August 1997, p. 5; cf. also CAS 2008/O/1483, AHF, KzHF,
KHA v. IHF, Award of 20 May 2008, paras. 10–14; Poudret/Besson, para. 241.
67 Berger/Kellerhals, paras. 579 et seq.
68 CAS 2015/A/4259, Valentino Rossi v. FIM, Order on Request for a Stay and Intervention of 5
November 2015, para. 41.
69 The PILS (Chapter 12) is silent on this.
70 Art. R41.4(3), first sentence.
71 Art. R41.4(3), second sentence.
72 Art. R41.4(3), third sentence.
73 Art. R41.4(3), fourth sentence.
Article R41 CAS Code – Noth/Haas 1533

As soon as the Panel is constituted, it has to determine the status and rights of the 29
third parties in accordance with Art. R41.4(5). Art. R41.4(4), first sentence makes
clear that, regardless of the status and rights granted to the third parties, the formation
of the Panel cannot be challenged.
Article R41.4(4) also applies (by analogy) to situations where a third party joins 30
the proceedings only after the Panel has already been constituted so that it cannot
exert any influence on the composition of the Panel. In other words, as a principle,
the new party has to accept the prior appointments of the arbitrators and cannot
challenge the formation of the Panel.74

74 Mavromati/Reeb, Art. R41, para. 93; cf. Berger/Kellerhals, para. 839 et seq., who state that the
intervenor should be admitted only if he is willing to accept the arbitrators already appointed.
However, in case of a third-party-notice, they are of the view that the third party should have
the opportunity to take part in the constitution of the Panel; they, therefore, require that the
party which intends to cause the third party to participate either waives the arbitrator it has
already appointed, so that a common arbitrator, for it and the third party, may be designated,
or that all existing parties to the proceedings agree to waive the chairman already appointed,
so that in his place a third arbitrator may be appointed upon nomination of the third party.
 1534

Article R42: Conciliation

The President of the Division, before the transfer of the file to the Panel, and
thereafter the Panel may at any time seek to resolve the dispute by conciliation. Any
settlement may be embodied in an arbitral award rendered by consent of the parties.

I PURPOSE OF THE PROVISION

1 The mission of the CAS is to settle sports-related disputes and “also to encourage
the resolution of such disputes by way of conciliation” or other forms of alternative
dispute resolution.1 Art. R42 deals with both the conciliation and the settlement
agreement. The parties will have the option to settle their dispute by agreement at
any time during the proceedings, with or without the help of the court.

II CONTENT OF THE PROVISION

A Conciliation

2 In general, conciliation may be defined as a process whereby a third party assists

parties in their attempt to reach an amicable solution of their dispute.2 Under the
provision of Art. R42, the term conciliation is to be understood very broadly and
encompasses any efforts by the CAS to achieve an amicable solution for the dispute
being subject to the pending CAS arbitration proceedings.3
3 Conciliation may be initiated at any time by the CAS ex officio or upon a party’s
request. As long as the Panel is not formed and the file not transferred to the Panel,
the President of the Division is competent for conciliation purposes; as soon as the
Panel is formed and the file transferred to it, the Panel is competent for conciliation
purposes.4
4 The CAS Code does not contain any specific rules for conciliation proceedings; this
grants maximum flexibility. By contrast, the CAS Code contains specific rules for
formal mediation proceedings at CAS, i.e., the CAS Mediation Rules.5 The main
difference between conciliation and mediation under the CAS Code is that the
former starts within the framework of arbitration proceedings and can result in an
award by consent subject to the New York Convention, while the latter is governed
by a separate set of mediation rules and does not result in an award under the New
York Convention.6

1 CAS 2000/A/264, G. v. FEI, order of 23 October 2000, p. 2.

2 Girsberger/Voser, 2016, para. 35.
3 For an overview on conciliation in sports matters in general, see Foucher, pp. 19–32.
4 Art. R42, first sentence.
5 Arts. 1–14 CAS Mediation Rules.
6 Mavromati/Reeb, Art. R42, para. 5.
Article R42 CAS Code – Noth/Haas 1535

B Settlement and Award by Consent

In the event of the parties reaching a full and final settlement during the proceedings, 5
either as a result of conciliation by the Panel7 or negotiation between the parties
without the CAS’ assistance, they may request that their settlement agreement be
reflected in a consent award, which will make it enforceable as such.8 It is the task
of the Panel to verify the bona fide nature of the settlement agreement to ensure
that the will of the parties has not been manipulated by them to commit an illegal
act and to confirm that the terms of the settlement agreement are not contrary to
public policy principles or mandatory rules of the law applicable to the dispute.9
The parties may include in the settlement agreement points that were not part of
the matter in dispute before the Panel. However, they may not dispose of rights of
persons that are not party to the proceeding. The CAS Code does not require that the
parties provide the full and signed text of a settlement to the Panel; oral settlements
may also be embodied in the award. The consent award must take a form similar
to an arbitral award; specifically, the consent award must be dated and signed, at
least by the President of the Panel or by its two co-arbitrators.10 Up to 2014, about
fifty awards by consent have been rendered by CAS.11
If the parties have only reached a partial settlement, a partial award on agreed terms 6
is possible. In multiparty arbitration, the CAS Code does not exclude rendering an
award on agreed terms with regard to the parties who have settled and continuing
the arbitration between the parties who have not.
Like any award rendered by the Panel, a consent award puts an end to the arbitration 7
proceedings (in relevant part). The Panel may refuse to render an award on terms
agreed by the parties in exceptional circumstances only, e.g., if the settlement agree-
ment appears to be contrary to international public policy or if justifiable doubts
arise concerning the legality of the transaction.12 In accordance with Art. R43 CAS
Code, awards by consent are confidential unless both parties agree on its publication.
Like an award within the meaning of Art. R46, an award by consent is final and 8
binding.13 However, where the settlement agreement is subject to revocation or
to any condition precedent, the enforce-ability of the award on agreed terms is
uncertain. The question as to what extent a consent award has res judicata effect
is answered by the lex arbitri.
In the event of an award by consent, the arbitration costs will usually be reduced 9
as the proceedings are shortened and the panel need not draft a reasoning (as for
a decision) for the agreement embodied in the award. It is common practice that
the parties agree to share the arbitration costs; often they will be borne in equal

7 Cf. for settlements facilitated by arbitrators in general, Raeschke-Kessler, The Arbitrator as

Settlement Facilitator, Arbitration International, vol. 25/2005, pp. 323 et seq.
8 Cf. Art. R42, second sentence and Art. R46(3), sentence 1. For an example, see e.g. CAS
2014/A/3498, IAAF v. TAF & A. Cakir-Alptekin, award of 17 August 2015, para. 32.
9 CAS 2014/A/3498, IAAF v. TAF & A. Cakir-Alptekin, award of 17 August 2015, para. 35; cf.
also Netzle, ASA Special Series no. 41, p. 27 pointing out to the limited possibilities to settle a
dispute in doping matters.
10 Cf. Art. R46(1), third sentence.
11 Mavromati/Reeb, Art. R42, para. 4.
12 Cf. Berger/Kellerhals, para. 1542.
13 Cf. Art. R46, para. 12 below.
 1536 Arbitration in Switzerland – The Practitioner’s Guide

shares by both parties.14 Usually, also the question of a compensation for lawyers’
fees is addressed in the settlement and award by consent; often both parties waive
any compensation claims.

C Alternative Options for Termination

10 Although not expressly stated in the CAS Code, there are also other options for
terminating CAS arbitrations.15 As an alternative to a consent award, the parties may
request the Panel to issue an order for the termination of the proceedings without
embodying the terms of their settlement in an award. This option is sometimes
chosen where the parties wish to keep the contents of their settlement secret from
the Panel and CAS.
11 A further alternative to achieve termination of the arbitration proceedings is that
the claimant withdraws the claim.16 Likewise, an acceptance of the claim by the
respondent usually results in the termination of the arbitration. A withdrawal and
acceptance of a claim may result from a settlement agreement between the parties
or from a unilateral declaration of discontinuance.
12 The determination of the costs of the arbitration in the event of such alternative forms
of termination is not governed by the CAS Code either. The Panel must consider
all interests involved and decide on a case-by-case basis.17 In any event, the Court
Office fee will not be refunded.18
13 The effects of a termination order issued by the CAS follow from the lex arbitri.
According to Swiss law the answer hereto depends on whether or not the party that
withdrew the request intended to put an end to the arbitration proceeding only or
whether the party wanted to renounce to the matter in dispute altogether.19 Only in
the latter case there is room for res judicata effects.20 Whether there is a waiver or
a simple withdrawal does not depend upon how the decision in question is named
(award, termination order, etc.). Instead, the effects depend on the applicable arbi-
tration rules. If the latter provide that no unilateral withdrawal is possible without
renouncing to the matter in dispute altogether, the decision that puts an end to
the proceeding also finally disposes of the claim and, thus, has res judicata effect.
The CAS Code, however, does not provide for any specific rules in that respect.
Nevertheless, it is constant practice with CAS (and most other arbitral institutions) 21
that a claimant/appellant can unilaterally withdraw his appeal/request for arbitration
before an appeal brief/statement of claim has been filed without renouncing his
claim altogether. In such event a CAS termination order only acknowledges that

14 Mavromati/Reeb, Art. R42, para. 17, with reference to CAS jurisprudence.

15 Cf. <http://www.tas-cas.org/statistics> differentiating between “award”, “procedures
terminated by a CAS decision other than an award” and “cases withdrawn”.
16 This happens quite often: In the year 2012, 86 and in the year 2013 70 CAS cases were withdrawn,
cf. <http://www.tas-cas.org/statistics>.
17 Cf. Art. R64.
18 Cf. Art. R64.1; cf. also CAS 2000/A/259, SBSV v. FIBT, Oschütz, pp. 284–285.
19 Cf. Wirth, para. 54 at Art. 189; CAS 2015/A/3959, CD Universidad Católica & Cruzados SADP
v. Genoa Cricket and Football Club, Award of 27 November 2015, para. 110.
20 BGer. 4A_374/2014 para. 4.3.2.2; CAS 2015/A/3959, CD Universidad Católica & Cruzados SADP
v. Genoa Cricket and Football Club, Award of 27 November 2015, para. 110.
21 Wirth, para. 55 at Art. 189.
Article R42 CAS Code – Noth/Haas 1537

an appeal with CAS had been lodged, that this appeal has then been withdrawn
without a panel having been constituted, thus, leading to the (purely procedural)
termination of the proceedings (without res judicata effects).22

22 CAS 2015/A/3959, CD Universidad Católica & Cruzados SADP v. Genoa Cricket and Football
Club, Award of 27 November 2015, para. 110.
 1538

Article R43: Confidentiality

Proceedings under these Procedural Rules are confidential. The parties, the
arbitrators and CAS undertake not to disclose to any third party any facts or other
information relating to the dispute or the proceedings without the permission
of CAS. Awards shall not be made public unless all parties agree or the Division
President so decides.

I PURPOSE OF THE PROVISION

1 The notion of confidentiality is inherent in arbitration. The confidentiality of

arbitration proceedings (i.e. non-disclosure towards third parties) is one of the
main motivations1 in resorting to arbitration.2 However, despite this motivation (of
at least some of the parties), in most jurisdictions it is contested to what extent
there are (statutory) duties of confidentiality.3 Art. R43 clarifies this confidential-
ity and ensures that ordinary proceedings at the CAS, incl. the award, are, as a
principle, confidential. However, Art. R43 does not deal with confidentiality within
arbitration (i.e. non-disclosure towards the opposing party and other participants
to the proceedings, namely the introduction of confidential information into, and
its treatment within, the arbitral process).4

II CONTENT OF THE PROVISION

A Confidentiality Duty

2 As a principle, the parties, arbitrators and the CAS are obliged not to disclose any
facts or other information regarding the dispute or arbitration proceedings to third
parties.5 According to the express wording of this provision, this rule applies also to
the CAS. This means that the Secretary General, the ad hoc clerks, any auxiliaries
and staff of the CAS are also subject to this confidentiality duty. Whether the same
duty applies to tribunal-appointed experts is questionable, since they are neither
“the arbitrators” nor “CAS” within the meaning of the provision.6 To be on the same
safe side, it is recommended that tribunal-appointed experts sign a confidentiality
commitment. The legal situation in respect of party-appointed experts and witnesses
is similar. They are not subject to the duty of confidentiality. Hence, if confidentiality
is critical, the execution of a separate confidentiality agreement with such experts
and witnesses is required.7

1 The empirical data available is quite ambiguous (and one might have to distinguish between
the privacy of hearings and duties of confidentiality), see Kahlert, pp. 63 et seq.
2 Trakman, ArbInt. 2002, p. 1.
3 For an overview on the international debate, cf. Kahlert, pp. 3 et seq.
4 This is partially governed by Art. R44.3.
5 Art. R43, second sentence; cf. also Art. S19(1) confirming the duty of confidentiality for CAS
arbitrators.
6 Kahlert, p. 368.
7 Cf. Trakman, ArbInt. 2002, pp. 11–13; Berger/Kellerhals, para. 1232; Mavromati/Reeb, Art.
R43, para. 21.
Article R43 CAS Code – Noth/Haas 1539

The duty of confidentiality covers all awards and orders issued by the Panel, as well 3
its deliberations. This does not solely follow from Art. R43, but also from Swiss law.8
It also extends to all oral and written communications by the Panel, Court Office,
witnesses, experts and parties, and to all materials submitted by the parties in the
course of the proceedings. Art. R43 includes the entirety of the arbitral proceedings.9
Given that duties of confidentiality and the privacy of hearings are two different
things, it does not automatically follow from Art. R43 that in CAS proceedings the
public10 is generally excluded from the hearings.11 Instead, the question of the privacy
of the hearing is addressed in Art. R44.2 (2) of the CAS Code. The question of who
is permitted to attend the non-public hearing is governed by the lex arbitri, i.e. Swiss
law.12 Occasionally the CAS publishes hearing dates for information purposes.13 The
legal basis for this in the CAS Code is not obvious.14 Even in the Appeal Procedure,
press statements can be made only after the end of the proceedings, see Art. R59
(6) CAS Code.
The duty of confidentiality does not apply if, and to the extent that, a disclosure is 4
required by legal obligation, which includes orders from a judge or administrative
authority to provide information. Neither does the duty apply to materials that are
in the public domain. Furthermore, it does not apply where a party must divulge
information to protect legitimate interests in proceedings against third parties.1516
Disclosure is also permitted when this is necessary for the orderly conduct of the
arbitration.17 In addition, filing an appeal against the CAS award at the Federal
Supreme Court or filing the award for enforcement purposes at the state court does
not violate the confidentiality duty.18 The CAS Code does not address the question as
to whether arbitrators have the right to involve public prosecution authorities where
there are indications of criminal activities in connection with the arbitration (e.g.,
money laundering, forgery or bribery). In international arbitration this question is
controversial. At least in cases where arbitration is misused for criminal purposes,
arbitrators are not subject to the duty of confidentiality as agreements based on
criminal intents are null and void under Swiss law and do not deserve any legal
protection.19 Furthermore, R43 provides that disclosure to any third party may be
made with the permission of the CAS. It is not clear what organ of the CAS would be
competent to grant leave of disclosure (General Secretary, ICAS, Division President).
However, it is rather clear from the construction of the provision that the CAS Panel
is not the proper organ to grant such leave. Any such requests must, thus, be directed
to the CAS Court Office and not to the Panel. In addition, the provision does not
specify the conditions under which an exemption from the duty of confidentiality

8 Ritz, pp. 163, 168 et seq.; for an international overview, see Kahlert, p. 201.
9 Mavromati/Reeb, Art. R43, para. 16.
10 It follows from Art. R44.2 (2) sentence 4 that at least interpreters are allowed to participate
(Kahlert, pp. 367 et seq.).
11 Art. R43, first sentence and Art. R44.2(2), second sentence.
12 Kahlert, pp. 367 and 400.
13 Mavromati/Reeb, Art. R43, para. 20.
14 Kahlert, p. 367.
15 Examples can be found in Kahlert, pp. 193 et seq.
16 Kaufmann-Kohler/Bärtsch, p. 96.
17 Kahlert, pp. 192 et seq. (an example would be information divulged to an expert witness or
interpreter).
18 Redfern/Hunter/Blackaby/Partasides, para. 2.178; Mavromati/Reeb, Art. R43, para. 23.
19 Cf. Art. 20 CO; see also Redfern/Hunter/Blackaby/Partasides, paras. 5.82 et seq.
 1540 Arbitration in Switzerland – The Practitioner’s Guide

may be granted by the CAS. At the end of the day the decision must be taken on
the basis of a balance of interests of the parties involved.
5 The duty of confidentiality is valid for an unlimited period. A violation of the
confidentiality undertaking may lead to civil liability based on breach of contract.20
Art. R68 excludes all liability of arbitrators, the CAS and its staff in connection with
any CAS proceedings; however, due to mandatory Swiss law foreseen in Art. 100 CO
this exclusion is null and void with regards to deliberate wrongdoing and gross fault.21
Moreover, an arbitrator may be removed from the CAS list if he violates the duty of
confidentiality.22 It is debated whether a breach of confidentiality by an arbitrator
can be a ground for challenging this arbitrator.23 Where a party is in breach of the
duty of confidentiality a Panel may order it to refrain from such conduct pursuant
to Art. R37, Art. 183 PILS and Art. 374 ZPO respectively.24 There is a discussion
whether a party can terminate the arbitration agreement if the other party breaches
a duty of confidentiality.25 Because there is regularly no direct connection between
a violation of the confidentiality duty and the final outcome of the arbitration
proceeding (award), such violation may hardly result in the invalidity of the award.26
6 The parties are free to agree on alternative terms to govern their confidentiality
undertakings as Art. R43 is not a mandatory provision.27 It is recommended that
such agreements be concluded in writing.

B Publication of Awards

7 Awards from ordinary proceedings28 are generally not made public unless all the
parties concerned agree or the Division President so decides.29
8 The parties’ consent to the publication can be express or implicit. The fact that an
order of procedure was rendered and “none of the Parties ha[d] objected to the
publication of the final award“ can qualify as a consent to the publication.30
9 The CAS Code does not specify under what circumstances the Division President may
admit the publication of the award. According to CAS jurisprudence, the publication
of awards has been decided on the basis of “the significance of this matter for

20 Kaufmann-Kohler/Bärtsch, p. 97; Berger/Kellerhals, para. 1235; Mavromati/Reeb, Art. R43,

para. 27.
21 Cf. Art. R68, at paras. 2 et seq. below. However, see Mavromati/Reeb, Art. R43, para. 28
generally excluding any kind of liability.
22 Art. S19(2).
23 This is seen rather critically by Kahlert, p. 386.
24 Kaufmann-Kohler/Bärtsch, p. 96.
25 This, however, is usually not a ground to terminate the arbitration agreement, see Kahlert, p.
385.
26 Kahlert, pp. 389 et seq., however noting that this can be different for a breach of the confidential-
ity of deliberations (in particular if there is a further round of submissions after an arbitrator
has disclosed information from the deliberation); see also Mavromati/Reeb, Art. R43, para. 29
stating that “it would be theoretically possible to have an action to set aside the arbitral award
based on the violation of the procedural public policy”.
27 Cf. Art. R43, third sentence.
28 Unlike awards from appeal proceedings, cf. Art. R59(6).
29 Art. R43, third sentence. This provision has been adopted only per 1 January 2010.
30 CAS 2011/O/2574, UEFA v. FC Sion/Olympique des Alpes SA, award of 31 January 2012 (operative
part of 15 December 2011), para. 162.
Article R43 CAS Code – Noth/Haas 1541

football”,31 based on a finding “that there are reasons of legal certainty and fairness
that require this award be made public”32 or to outweigh a suspicion of doping that
arose through a press release. Furthermore, it has been stated that publication is
allowed where making an award public may have a dissuasive effect, for instance,
in connection with doping33 or if there is a general interest for the public.34 However,
a general interest for the public must not be assumed hastily; the parties must be
able to rely on the confidentiality of the proceedings otherwise uncertainty exits
with regards to this key feature of arbitration. In particular, in purely commercial
matters the general interests for the public never prevails the parties’ interest in
confidentiality. In any event, the Division President should always first consult with
the parties and take into account their interests in not making the award public. In
particular, if sensitive data such as business or trade secrets or private know-how are
involved, a publication of such information within the award is hardly acceptable.
Moreover, the Division President should examine whether the public interest can be
satisfied by a less interfering action than the publication of the entire award such as
publishing only parts of the award. In a nutshell, the Division President may order
publication, without the parties’ consent, only on exceptional grounds.
Finally, it should be clarified that the publication of anonymized and redacted 10
awards is not generally, but only permitted if all identifying features (and not
only the names) are removed and the further context of the award does not allow
conclusions to the parties.35

31 CAS 2008/O/1808, KFA v. FIFA, Award of 27 April 2010, para. 85.

32 CAS 2008/O/1455, Boxing Australia v. AIBA, Award of 16 April 2008, para. 49.
33 Reeb, Role and Functions, p. 39.
34 Mavromati/Reeb, Art. R43, para. 5.
35 In similar terms: Mavromati/Reeb, Art. R43, para. 23, stating that “all elements prone to lead
to the identification of the parties” need to be removed; the same authors seem to be less strict
when stating that the publication of the reasons of the award is acceptable if the “the names
of the parties involved” are removed (Mavromati/Reeb, Art. R43, para. 32).
1542

Article R44: Procedure before the Panel

Article R44.1: Written Submissions

The proceedings before the Panel comprise written submissions and, in principle,
an oral hearing. Upon receipt of the file and if necessary, the President of the Panel
shall issue directions in connection with the written submissions. As a general rule,
there shall be one statement of claim, one response and, if the circumstances so
require, one reply and one second response. The parties may, in the statement of
claim and in the response, raise claims not contained in the request for arbitration
and in the answer to the request. Thereafter, no party may raise any new claim
without the consent of the other party.
Together with their written submissions, the parties shall produce all written
evidence upon which they intend to rely. After the exchange of the written sub-
missions, the parties shall not be authorized to produce further written evidence,
except by mutual agreement, or if the Panel so permits, on the basis of exceptional
circumstances.
In their written submissions, the parties shall list the name(s) of any witnesses,
whom they intend to call, including a brief summary of their expected testimony,
and the name(s) of any experts, stating their area of expertise, and shall state
any other evidentiary measure which they request. Any witness statements shall
be filed together with the parties’ submissions, unless the President of the Panel
decides otherwise.
If a counterclaim and/or jurisdictional objection is filed, the CAS Court Office
shall fix a time limit for the Claimant to file an answer to the counterclaim and/
or jurisdictional objection.

Article R44.2: Hearing

If a hearing is to be held, the President of the Panel shall issue directions with
respect to the hearing as soon as possible and set the hearing date. As a general
rule, there shall be one hearing during which the Panel hears the parties, any
witnesses and any experts, as well as the parties’ final oral arguments, for which
the Respondent is heard last.
The President of the Panel shall conduct the hearing and ensure that the statements
made are concise and limited to the subject of the written presentations, to the
extent that these presentations are relevant. Unless the parties agree otherwise,
the hearings are not public. Minutes of the hearing may be taken. Any person
heard by the Panel may be assisted by an interpreter at the cost of the party which
called such person.
The parties may only call such witnesses and experts which they have specified in
their written submissions. Each party is responsible for the availability and costs
of the witnesses and experts it has called.
The President of the Panel may decide to conduct a hearing by video-conference or
to hear some parties, witnesses and experts via tele-conference or video-conference.
Article R44 CAS Code – Noth/Haas 1543

With the agreement of the parties, she/he may also exempt a witness or expert from
appearing at the hearing if the witness or expert has previously filed a statement.
The Panel may limit or disallow the appearance of any witness or expert, or any
part of their testimony, on the grounds of irrelevance.
Before hearing any witness, expert or interpreter, the Panel shall solemnly invite
such person to tell the truth, subject to the sanctions of perjury.
Once the hearing is closed, the parties shall not be authorized to produce further
written pleadings, unless the Panel so orders.
After consulting the parties, the Panel may, if it deems itself to be sufficiently well
informed, decide not to hold a hearing.

Article R44.3: Evidentiary Proceedings Ordered by the Panel

A party may request the Panel to order the other party to produce documents in its
custody or under its control. The party seeking such production shall demonstrate
that such documents are likely to exist and to be relevant.
If it deems it appropriate to supplement the presentations of the parties, the Panel
may at any time order the production of additional documents or the examination
of witnesses, appoint and hear experts, and proceed with any other procedural
step. The Panel may order the parties to contribute to any additional costs related
to the hearing of witnesses and experts.
The Panel shall consult the parties with respect to the appointment and terms of
reference of any expert. The expert shall be independent of the parties. Before
appointing her/him, the Panel shall invite her/him to immediately disclose any
circumstances likely to affect her/his independence with respect to any of the
parties.

Article R44.4: Expedited Procedure

With the consent of the parties, the Division President or the Panel may proceed
in an expedited manner and may issue appropriate directions therefor.

Article R44.5: Default

If the Claimant fails to submit its statement of claim in accordance with Article R44.1
of the Code, the request for arbitration shall be deemed to have been withdrawn.
If the Respondent fails to submit its response in accordance with Article R44.1 of the
Code, the Panel may nevertheless proceed with the arbitration and deliver an award.
If any of the parties, or its witnesses, has been duly summoned and fails to appear
at the hearing, the Panel may nevertheless proceed with the hearing and deliver
an award.
 1544 Arbitration in Switzerland – The Practitioner’s Guide

I PURPOSE OF THE PROVISION

1 The purpose of Art. R44 is to govern several critical aspects of the proceedings
before the Panel. In view of their importance, it is hard to understand why all these
(discrete) aspects are lumped together and addressed in a single article. Art. R44.1
governs the statement of claim, the response and further written submissions, as
well as the evidence to be included together with the written submissions, and the
counterclaim and defense of lack of jurisdiction. Art. R44.2 concerns various matters
relating to the hearing. Art. R44.3 addresses a number of questions regarding the
taking of the evidence, including the production of documents and the handling of
witnesses and experts. Art. R44.4 deals with the expedited procedure. Finally, Art.
R44.5 governs the conduct of the proceedings in case of default by a party.

II CONTENT OF THE PROVISION

A Written Submissions (Article R44.1)

2 Once the Panel has been constituted, the parties exchange written submissions, i.e.,
the claimant issues its statement of claim and the respondent issues a response.1
These two submissions are the main filings in ordinary proceedings before the CAS:
any further written submissions will only be admitted if the circumstances so require.2
The circumstances may require the exchange of a reply and second response, e.g.,
where the respondent puts forward facts and evidence in his response, that were
not addressed in the statement of claim.3 Failing this, the right to be heard and/or
the Panel’s duty to ensure the parties’ equal treatment might be violated, which in
turn may jeopardize the validity of the award to be rendered. Procedural fairness
also applies to the setting of time limits for filing written submissions. Where the
parties are not granted the same time periods to comment on the other party’s
submission(s), their rights risk being violated.4 The duration of the time granted
depends on the nature of submission and circumstances of the case; often the Panel
grants 20 to 30 days, with the possibility of an extension upon reasoned request.5
Usually, written submissions are filed consecutively; however the CAS Code does not
exclude the possibility for the Panel to order simultaneous filings.6 If necessary, the
President of the Panel may issue directions in connection with written submissions
in a procedural order.7
3 The statement of claim and the response must contain detailed statements of the
relevant facts. Such factual statements should be exhaustive as there is no guarantee
that a further exchange of submissions will take place.8 The facts supporting the
claim and the response must be sufficiently substantiated, which, under Swiss law,

1 Art. R44.1(1), first and third sentences.

2 Art. R44.1(1), third sentence.
3 In case of a counterclaim or set-off claim, the claimant always needs to be permitted to file an
additional pleading, cf. Art. R44.1(4).
4 BGE 116 II 639 para. 4.c; cf. BGE 130 III 35 para. 5.
5 Mavromati/Reeb, Art. R44, para. 5; Girsberger/Voser, 2016 para. 1946.
6 This might be useful, e.g., for post-hearing briefs.
7 Art. R44.1(1), second sentence; Kaufmann-Kohler/Bärtsch, p. 81.
8 Cf. Art. R44.1(1), third sentence.
Article R44 CAS Code – Noth/Haas 1545

is an issue of procedural law.9 In addition, the parties are entitled to include legal
arguments.10 Furthermore, the names of the parties and their representatives, as well
as their prayers for relief and/or remedies sought must be reflected in the written
submissions.11 Requests for relief must be clear and precise.12 If this requirement is
not met, the Panel must not hesitate to order the claimant to amend his prayers for
relief within a certain time-limit.13 Moreover, written submissions must refer to the
evidence in support of the allegations made therein.14 Following the exchange of
written submissions, no further written evidence must be produced unless the other
party agrees to such new written evidence or the Panel accepts such new evidence
on the basis of exceptional circumstances.15 Exceptional circumstances may include
new facts or the fact that such evidence was unavailable at an earlier stage.16 The
Panel has, however, no obligation to admit late evidence.17
The parties may not raise new claims in the reply or second response, or thereafter, 4
unless the other party agrees to such new claims.18 New claims must be distinguished
from amendments and supplements to the prayer for relief and/or the cause of
action (i.e., factual basis). Where the amendment or supplement to the prayer for
relief relies on the same cause of action, the Panel must admit it without reserva-
tion.19 Amendments or supplements to the previously presented cause of action
must also be admitted without restrictions. However, an additional, new cause of
action which gives rise to a new set of claims with no connection to the original
claim and the corresponding cause of action, will be considered a new claim and
may be admitted only with the agreement of the other party or under exceptional
circumstances. The above means, for instance, that a claimant basing his claim on
a sponsorship agreement may increase his claim for payment in his reply based on
this same sponsorship agreement; however, the claimant may not bring a claim for
additional payment(s) in his reply based on a merchandise agreement which was
not the cause of the action adduced in his statement of claim.

9 Cf. CAS 2017/A/5111, Debreceni Vasutas Sport Club v. Nenad Novakovic, Award of 16 January
2018, para. 69 et seq.; PILS (Basel)- Schneider/Scherrer, Art. 184 N 7.
10 Cf. Art. R38(1), second bullet point.
11 Cf. Art. R38(1), first and third bullet points.
12 The demand for precise prayer for relief appears as an aspect of the respondent’s right to be
heard, cf. Wirth, Rechtsbegehren, p. 155.
13 Where appropriate, the Panel may even announce that if the claimant does not meet this
requirement as requested in the Panel’s order, the Panel will refuse to hear such claim, Wirth,
Rechtsbegehren, pp. 157–158; Berger/Kellerhals, paras. 1207–1208, also stating that, for the
same reasons, a Swiss arbitral tribunal should disregard “catch-all clauses”.
14 Art. R44.1(2) and (3).
15 Art. R44.1(2), second sentence.
16 The Panel considered the circumstances where a party was not aware until after the hearing
that there was an expert in the area of doping analysis who disagreed with a view of an
important Professor as exceptional and re-opened the proceedings, cf. CAS 2004/A/726, M. L.
Calle Williams v. IOC, Award of 19 October 2010, p. 3; cf. also CAS 2012/A/2705, Le Mans FC
v. FIFA (Olympique Bamako), Award of 11 March 2013, para. 106; Rochat/Cuendet, p. 67; cf.
Coccia, International Sports Justice, p. 57, mentioning that exceptional circumstances can also
be met “if it is necessary to protect the equality of the parties and their right to be heard”.
17 Cf. BGer. 4A_ 178/2014 para. 5.3.3 (no violation of the right to be heard for not admitting late
evidence).
18 Art. R44.1(1), fourth and fifth sentences.
19 Cf. Berger/Kellerhals, para. 1215 with reference to BGer. 4P.115/1994 para. 1b. Contra: Mavro-
mati/Reeb, Art. R44, para. 7.
 1546 Arbitration in Switzerland – The Practitioner’s Guide

5 As a principle, the parties are not permitted to submit unsolicited written statements.
In particular, shortly before or during the hearing, unsolicited written submissions
are generally not admissible; without this procedural fairness, the parties’ right to
be heard and to be treated equally might be violated. Where the Panel comes to the
conclusion that to strictly ignore an unsolicited filing is inappropriate, it may allow
the party to refer to the content of such filing in post-hearing briefs20 or during the
final oral arguments.21

B Counterclaim and Objections (Article R44.1)

6 Since the revision of the CAS Code valid as of 1 January 2010, counterclaims and
jurisdictional objections (i.e., defenses of lack of jurisdiction) have been expressly
provided for in this provision. Where a counterclaim or a jurisdictional objection
is filed, the CAS Court Office shall fix an appropriate time limit for the filing of
an answer to the counterclaim and/or jurisdictional objection.22 Further written
submissions may be ordered in accordance with Art. R44.1(1).
7 The CAS Code does not expressly govern the question of the time limit for raising any
counterclaims and/or defenses of lack of jurisdiction. As a principle, the respondent is
not allowed to raise a defense of lack of jurisdiction or a counterclaim after the filing
of the first response.23 This principle does not apply in the event of new information
being brought to the respondent’s attention with the claimant’s reply and such new
information being the basis for the jurisdictional objection or the counterclaim.
8 The CAS Code does not expressly deal with set-off claims.24 Under Swiss law, the
following applies: in domestic arbitration, under the ZPO, the CAS has jurisdiction
to hear a set-off defense even where the relationship from which this defense is
said to arise is not within the scope of the arbitration clause or is the object of
another arbitration agreement.25 For international arbitration, the PILS does not
contemplate any rule addressing this issue. According to the prevailing opinion
in doctrinal writings, the right to set off must be admitted without restrictions in
international arbitration proceedings seated in Switzerlan d (“juge de l’action, juge
de l’exception”).26

C Hearing (Article R44.2)

1 General

9 In principle, the proceedings before the Panel involve a hearing.27 In the course
of the 2016 revision, the previous wording in Art. R44.1(1) “if the Panel deems it

20 Cf. Art. R44.2(7).

21 Cf. Art. R44.2(1), second sentence.
22 Art. R44.1(4); cf. also Art. R39(4).
23 Cf. Art. R44.1(1), fifth sentence; Kaufmann-Kohler/Rigozzi, para. 5.12; Berger/Kellerhals, para.
1108.
24 Regarding the material requirements of set-off claims under Swiss law see CAS 2005/A/957,
Clube Atlético Mineiro v. Fédération Internationale de Football Association (FIFA), Award of 23
March 2006, in particular paras. 22–23.
25 Art. 377(1) ZPO.
26 E.g., Poudret/Besson, para. 324; Berger/Kellerhals, paras. 522–524.
27 Art. R44.1(1), first sentence and Art. R44.2(1), second sentence.
Article R44 CAS Code – Noth/Haas 1547

appropriate” has been substituted by “in principle” in order to be in line with Art.
R44.2(1) stating that “[A]s a general rule” there shall be a hearing. Nevertheless,
non-holding a hearing does not constitute per se a violation of the right to be heard;28
if the Panel deems itself sufficiently well-informed and if the parties’ right to be
heard is otherwise granted, it may deviate from the principle and decide not to hold
a hearing.29 This also applies where only one of the parties requests a hearing.30
However, where both parties insist on a hearing, the Panel must conduct a hearing;
and where the parties explicitly request that the Panel renders the award solely on
the basis of written submissions, as a principle, no hearing should take place.
Except for pre-hearing meetings or conferences,31 hearings must take place after the 10
exchange of written submissions. The President of the Panel may issue directions
with respect to the hearing, in particular with regard to the date(s), time and place of
the hearing.32 When fixing the hearing, the Panel must also consider organizational
and logistical issues, including travel and accommodation and the availability of
interpreters, experts and any other persons whose presence may be required.
As a general rule, there is one hearing during which the Panel hears the parties 11
as well as the witnesses and experts. A hearing can last half day or several days.
Hearings by video-conference are admitted as well.33 The parties will also have the
opportunity to make final oral pleadings at the hearing.34 Providing the Panel with
pleading notes is, as a principle, acceptable.35 The last word always belongs to the
respondent.36 Post-hearing briefs may be admitted by the Panel; but this seems to
be rare at CAS37 For post-hearing briefs the Panel may set the same deadline for
both parties.

2 Conduct of the Hearing

The hearing is conducted by the President.38 The President must ensure that state- 12
ments made by the parties, witnesses and/or experts are both concise and limited to
the subject of the relevant submissions.39 This implies that the President has a duty
to ask questions, in particular to clarify any relevant open issues, and to guide the
parties’ exchanges during the hearing. He may also limit or exclude any question
to a witness or expert, where it appears that the question is irrelevant, duplicative,

28 Mavromati/Reeb, Art. R44, para. 12.

29 Art. R44.2(8); CAS 2012/A/2731, Brazilian Olympic Committee et al. v. World Taekwondo
Federation et al., Award of 13 July 2012, para. 24. Cf. also Mavromati/Reeb, Art. R44, para. 10,
also considering the financial constraints and urgency of the case.
30 CAS 2010/O/2039, FASANOC v. CGF, Award of 30 March 2010, p. 3.
31 The Panel might find it useful to convene a pre-hearing telephone or video-conference for the
purpose of discussing the procedure, cf. Kaufmann-Kohler/Bärtsch, p. 83. However, according
to Netzle, p. 212, pre-hearing conferences are, in practice, rare at the CAS.
32 Cf. Art. R44.2(1), first sentence; cf. also Beloff/Netzle/Haas, E.3.80, stating in most cases the
hearing will take place in the premises of the CAS in Lausanne.
33 Art. R44.2(4), first sentence.
34 Art. R44.2(1), second sentence.
35 Rochat/Cuendet, p. 71; cf. Rigozzi, para. 981.
36 Art. R44.2(1), second sentence in fine.
37 Cf. Art. R44.2(7); Oschütz, p. 309; cf. Kaufmann-Kohler/Bärtsch, p. 85, who seem to admit
post-hearing briefs only exceptionally.
38 Art. R44.2(2), first part of first sentence.
39 Art. R44.2(2), second part of first sentence.
 1548 Arbitration in Switzerland – The Practitioner’s Guide

excessively burdensome or pertains to matters that are protected by legal privilege.40

He or she further must intervene if any of the present persons behave improperly
or interfere with the smooth and efficient conduct of the hearing.41
13 Hearings are generally not public.42 This follows from Art. R44.2 (2). The privacy of
the hearing and the duty of confidentiality must be distinguished.43 Art. R44.2 (2)
is also applicable to appeals arbitration proceedings (cf. Art. R57 (3)). According to
Mavromati/Reeb, so far only one CAS hearing was open to public.44 The publication of
hearing dates by the CAS Secretariat is occasionally done for information purposes.45
14 A common hearing comprises the following steps: (i) opening of the hearing, (ii)
preliminary remarks by the parties, (iii) witness examinations, (iv) expert examina-
tion, (v) parties examination, (vi) other evidentiary matters and closing of evidentiary
proceedings, (vii) oral pleadings, and (viii) closing and subsequent deliberations.46
However, it is at the Panel’s discretion to define the appropriate steps for the hearing.47
15 Interpreters may attend and assist any person to ensure that they are heard. This is
important, given that there is no obligation for a witness to testify or for an expert
to provide an opinion in the language of the arbitration. The CAS Court Office is
willing to help finding a suitable interpreter, but the party that called the person
requiring such assistance must bear the costs of the interpreter.48
16 Minutes of the hearing may be taken.49 However, usually this does not happen;
in particular unlike in most international commercial arbitrations, no verbatim
transcripts of the hearing are generally taken, although audio recordings are made.50
The parties may request a copy of the audio recording.51

3 Witnesses and Experts52

17 Each party is responsible for the availability and full costs of the witnesses and
experts it has called.53 This responsibility will be shared if both parties call the same
witness or expert for the same question.

40 Art. 8(2) 2010 IBA Rules; Kaufmann-Kohler/Bärtsch, p. 85.

41 Mavromati/Reeb, Art. R44, para. 14.
42 Art. R44.2(2), second sentence; this can be considered as a standard in international arbitration,
cf. Redfern/Hunter/Blackaby/Partasides, paras. 2.163 et seq.; cf., however, the Swiss Federal
Supreme Court in BGer. 4A_612/2009 para. 4.1, questioning the corresponding provision
in connection with the Appeal proceedings by stating that in the light of the overwhelming
significance of the CAS in the field of sports it would be desirable with respect to the confidence
in the independence of the arbitrators and fair trial, if, upon request by the athlete, a public
hearing would be held.
43 Cf. Art. R43 para.3 above.
44 Mavromati/Reeb, Art. R43, para. 20.
45 Mavromati/Reeb, Art. R43, para. 20.
46 See CAS checklist for hearing, printed in Mavromati/Reeb, Art. R43, Annex D.
47 Beloff/Netzle/Haas, para. E3.81.
48 Art. R44.2(2), fourth sentence.
49 Art. R44.2(2), third sentence.
50 Mavromati/Reeb, Art. R43, para. 16; cf. also Rigozzi, para. 994; Kaufmann-Kohler/Bärtsch, p.
85.
51 Mavromati/Reeb, Art. R43, para. 16.
52 Cf. also below, paras. 39–47.
53 Art. R44.2(3), second sentence.
Article R44 CAS Code – Noth/Haas 1549

Where convenient and appropriate, the President of the Panel may admit the hearing 18
of witnesses and experts via tele- or videoconference or by telephone, apparently
a very time and cost efficient method.54 Since the 2012 revision of the CAS Code,
this rule also applies to the parties themselves.55 The President may also exempt
a witness or expert from appearing at the hearing where both parties agree and
statements by the said witness/expert have previously been filed with the Panel.56
The appearance of any witness or expert may be disallowed by the Panel on the
grounds of irrelevance;57 however, this provision should be applied only with great
restraint, to limit the risk of violating procedural fairness. The before mentioned
rules allow for the (cost-) effective handling of witnesses and experts.
“Anonymous” witnesses have been admitted in a few CAS proceedings.58 According 19
to this CAS jurisprudence, which takes into account the case law of the ECHR and
Swiss Supreme Court, the admission of such witnesses requires that “(i) the witness
must be concretely facing a risk of retaliations by the party he/she is testifying against
if his/her identity was known; (ii) the witness must be questioned by the court itself
which must check his/her identity and the reliability of his/her statements; and (iii)
the witness must be cross-examined through an ‘audiovisual protection system’”.59

D Evidence (Articles R44.1 and R44.3)

1 General

In comparison to other arbitration rules, the rules governing evidence (lex evidentia) 20
provided in the CAS Code are quite short.60 Due to the brief and open wording of the
lex evidentia in the CAS Code, the different treatment and qualification of evidential
issues in different legal and cultural systems and the different specifications of the
various sports can be adequately taken into account.
Pursuant to Art. 184(1) PILS and Art. 375(1) ZPO the arbitral tribunal shall itself 21
conduct the taking of evidence. In accordance with the prevailing Swiss doctrine
it is suggested that administrating evidence is a matter for the entire Panel of the
tribunal and that delegating the taking of evidence to one of its members is not
permitted unless expressly agreed by the parties with regards to a specific subject
matter and ensured that the results of the taking of evidence can be made available
to the other arbitrators.61

54 Art. R44.2(4), first sentence.

55 Art. R44.2(4), first sentence; cf. also Rochat/Cuendet, p. 70.
56 Art. R44.2(4), second sentence.
57 Art. R44.2(5), first sentence.
58 CAS 2011/A/2384, UCI v. Alberto Contador Velasco & RFEC & CAS 2011/A/2386, WADA v. Alberto
Contador, Award of 6 February 2012, para. 32; CAS 2009/A/1920, FK Pobeda, Aleksandar
Zabrcanec, Nikolce Zdraveski v. UEFA, Award of 15 April 2010, paras. 72 et seq.
59 CAS 2011/A/2384, UCI v. Alberto Contador Velasco & RFEC & CAS 2011/A/2386, WADA v.
Alberto Contador, Award of 6 February 2012, para. 31.
60 For an example of comprehensive rules, see WIPO Rules (Arts. 50 et seq.).
61 Berger/Kellerhals, para. 1310; cf. also Schneider/Scherrer, para. 49 at Art. 184, only requiring
the parties’ consent.
 1550 Arbitration in Switzerland – The Practitioner’s Guide

2 Presentation of Facts, Burden of Proof and Standard of Proof

22 It seems standard in international arbitration that the facts relevant for the arbitral
tribunal are the facts presented by the parties.62 It is clear that also the CAS Code
is drafted on the basis of the parties having to present the facts and the tribunal
taking a decision based on these facts presented by the parties. This principle cor-
responds to the legal system of Switzerland and other civil law countries (so called
“Verhandlungsmaxime”).63 This means that each party has to present and substanti-
ate the facts it relies on (so called “Behauptungs- und Substantiierungspflicht”).64
Furthermore, it also means that the other party can contest such presentation and
that such contesting has to be substantiated.65 In addition, it also encompasses the
evidence to be adduced.
23 The principle commonly applied in international arbitration holds that each party
has to substantiate and prove the facts on which it relies to support its claim or
defense (actori incumbit probatio).66 Unlike other well-established arbitration rules
such as the UNCITRAL or Swiss Rules, the CAS Code does not expressly deal with
the question of the burden of proof.67 Under the civil law approach, the burden of
proof is governed by the applicable substantive law; in Switzerland, this is generally
governed by Art. 8 of the Swiss Civil Code which states that the burden of proving
the existence of an alleged fact shall rest on the person who derives rights from
that fact, unless the law provides otherwise.68 By contrast, under the common law
approach the burden of proof is a matter of procedural law. However, in this respect
the distinction between substantive and procedural law appears academic and seems
not to raise controversial issues in practice.69 The Swiss Federal Supreme Court has
held that the burden of proof is not a matter of public policy.70
24 One must also take into account that substantive law governing the merits or
individual sports regulations may provide for specific rules on the burden of proof,
namely swifts of the burden of proof or statutory presumptions. In particular, the
WADA Code contains critical rules regarding the burden of proof which deviate
from the principle pursuant to Art. 8 CC.71 In any event, on the whole, it seems fair

62 Schneider/Scherrer, para. 5 at Art. 184.

63 Schneider/Scherrer, para. 5 at Art. 184.
64 CAS 2003/O/506, para. 54 mentioned in Coccia, International Sports Justice, p. 59: “If a party
wishes to establish some facts and persuade the arbitrators, it must actively substantiate its
allegations with convincing evidence”.
65 According to the Swiss Federal Supreme Court, it is not sufficient to contest the other party’s
presentation in its entirety without any specification (cf. BGer. of 17 August 1994, ASA Bull.
1995, pp. 198, 204); cf. also CAS 2011/A/2616, UCI v. Oscar Sevilla Rivera & RFEC, Award of
15 May 2012, para. 21.
66 Redfern/Hunter/Blackaby/Partasides, para. 6.84.
67 Cf. Art. 27(1) UNCITRAL Rules or Art. 24(1) Swiss Rules.
68 However, in recent times, the principle of Art. 8 ZGB has been criticized and it has been suggested
that for each legal provision the burden of proof should be determined by interpretation, in
particular in consideration of the purpose of the provision, the availability of and proximity to
evidence, and the principle of proportionality, cf. Staehelin/Staehlin/Grolimund, § 18, para.
50.
69 Schneider/Scherrer, paras. 11–12 at Art. 184.
70 BGer. 4A_488/2011 para. 6.2, also stating that the principles applicable in criminal proceed-
ings such as the presumption of innocence and in dubio pro reo do not apply in international
arbitration.
71 Rigozzi/Quinn, pp. 16 et seq.
Article R44 CAS Code – Noth/Haas 1551

to allocate the burden of proof according to the laws governing the merits of the
dispute (lex causae) unless the parties have agreed otherwise.72
No proof is required regarding uncontested factual assertions (which seems to be 25
another principle accepted in international arbitration).73 The distinction of whether
an assertion is of factual or legal nature is determined according to the lex fori.74
With regards to legal assertions, the principle iura novit arbiter (iura novit curia)
applies to arbitrations seated in Switzerland; as a corollary, the arbitral tribunal
itself shall determine the content of the applicable law.75
The CAS Code also does not contain any rule on the standard of proof determining 26
the threshold to be reached to consider a matter of fact as proven. Sporting federa-
tions are entitled to impose their own standard of proof; such standard of proof
does even not need to be in accordance with the previous CAS jurisprudence.76 The
CAS has developed an impressive jurisprudence on the standard of proof.77 One
of the traditional standards of proof in CAS proceedings is the test of the balance
of probability (i.e. it is more probable than not).78 This test is the common one
in international arbitration and suits well to commercial sport matters.79 Another
frequently applied test, in particular in disciplinary matters, is whether the facts
have been established to the “comfortable satisfaction of the court”.80

3 Assessment of Evidence

Article 9(1) IBA Rules gives the tribunal discretionary powers to determine the 27
admissibility, relevance, materiality and weight of the evidence adduced and
clarifies that the tribunal is not bound by any rules of evidence unless the parties
have expressly provided otherwise. This rule can be considered as a principle in
international arbitration rules81 and applies also to proceedings under the CAS Code.
Article 9(2) of the IBA Rules illustrates grounds that usually lead to the exclusion 28
(i.e. non-admissibility) of evidence. Hence, the tribunal may exclude evidence, inter
alia, for legal impediment or privilege under the legal or ethical rules, unreasonable
burden or impossibility to produce the requested evidence, grounds of commercial
or technical confidentiality, or special political or institutional sensitivity. The Panel
has the power to decide whether to admit the evidence submitted.82 When deciding

72 Berger/Kellerhals, para. 1316; differentiating: Schneider/Scherrer, paras. 11–12 at Art. 184.

73 Schneider/Scherrer, para. 10 at Art. 184; Tercier/Bersheda, ASA Special Series no. 35, p. 80.
74 Nater-Bass/Rouvinez, para. 10 at Art. 24.
75 Berger/Kellerhals, N 1434; similar: Coccia, International Sports Justice, p. 60. However, the
Panel may impose on the parties duties of cooperation, cf. CAS 2017/A/5111, Debreceni Vasutas
Sport Club v. Nenad Novakovic, Award of 16 January 2018, para. 114.
76 CAS 2011/A/2490, Köllerer v. ATP et al, paras. 82–85, mentioned in Rigozzi/Quinn, p. 25.
77 For an overview see Rigozzi/Quinn, pp. 24–38.
78 CAS 2009/A/1926 & 1930, ITF v. Gasquet & WADA v. ITF & Gasquet, Award of 17 December
2009, para.29–31; CAS 2011/A/2384, UCI v. Alberto Contador Velasco & RFEC & CAS 2011/A/2386,
WADA v. Alberto Contador, Award of 6 February 2012, paras. 53 et seq.
79 Cf. Redfern/Hunter/Blackaby/Partasides, para. 6.85.
80 CAS 2010/A/2172, Oriekhov v. UEFA, para. 53; CAS 2009/A/1920, Probeda et al. v. UEFA, para. 85.
81 Cf. also Art. 27(4) UNCITRAL Rules (2010/2013); Art. 24(2) Swiss Rules; Art. 50(1) WIPO Rules;
Art. 26(1) SCC.
82 CAS 2009/A/1879, Alejandro Valverde v. CONI & AMA & UCI, Award of 16 March 2010, para.
36; CAS 2011/A/2384, UCI v. Alberto Contador Velasco & RFEC & CAS 2011/A/2386, WADA v.
 1552 Arbitration in Switzerland – The Practitioner’s Guide

on the admissibility of the evidence the Panel is not bound to the rules of evidence
before the national courts of the seat of the arbitral tribunal.83 However, the latter
may be a source of inspiration for the Panel, e.g. whether or not to admit evidence
that has been obtained illegally.84
29 As previously set out, the parties have to present the facts and evidence, but the
tribunal decides what facts and evidence are relevant and material to the case and
parties’ requests. Also this principle is in line with the IBA Rules and applies, in
principle, to arbitration proceedings under the CAS Rules: according to Art. 9(2)(a)
IBA Rules all means of evidence shall be excluded for “lack of sufficient relevance
to the case or materiality to its outcome”. The Federal Supreme Court has confirmed
that an arbitral tribunal may reject evidence if it does not consider such evidence
fit or relevant for the facts and that such rejection does not violate the principle of
equal treatment and the right to be heard.85
30 The Panel also determines the weight and probative value of the evidence submit-
ted.86 Under the CAS Rules, arbitral tribunals have wide discretion in relation to
the probative value of evidence. This is in line with the principle of free assess-
ment of evidence (“Grundsatz der freien Beweiswürdigung”) enshrined in various
jurisdictions, including Swiss procedure law in Art. 157 ZPO,87 and also applies to
arbitrations before the CAS.88 Credibility, consistency, contradictions, conclusiveness,
clearness and preciseness of statements, etc. are indications to be considered when
weighing evidence in arbitration proceedings under the WIPO Rules. In general,
arbitral tribunals tend to give more weight to contemporaneous documents than
uncorroborated witness statements (“Verba volant, scripta manent”).89
31 If it is deemed to be appropriate90 that the presentations of the parties be supple-
mented by the parties, the Panel may at any time order the production of additional
documents,91 the examination of the parties or witnesses, the hearing of experts92 or

Alberto Contador, Award of 6 February 2012, para. 18; Kaufmann-Kohler/Rigozzi, para. 6.14;
Berger/Kellerhals, para. 1205. Cf. also Art. R57(3).
83 CAS 2009/A/1879, Alejandro Valverde Belmonte v. CONI & AMA & UCI, Award of 16 March
2010, para. 99.
84 CAS 2009/A/1879, Alejandro Valverde Belmonte v. CONI & AMA & UCI, Award of 16 March
2010, paras. 133 et seq.
85 BGE 116 II 639 para. 4c; cf. also BGer. 4A_ 634/2011 para. 2 and BGer. 5A_ 634/2011 para.
2.2 regarding a justified refusal to hear a witness; BGer. 4A_ 682/2011 para. 4.1 regarding a
justified disregarding of a witness statement of a witness who did not appear at the hearing;
BGer. 4A_76/2012 para. 3.3 regarding the justified refusal to conduct a new witness hearing;
BGer. 4A_150/2012 para. 4 regarding justified failure to order a requested on-site visit; BGer.
4A_274/2012 para. 3 regarding the justified failure to appoint an expert.
86 Art. 9(1) of the 2010 IBA Rules.
87 Cf. Staehelin/Staehlin/Grolimund, § 18, para. 29.
88 Cf. BGer 4A_522/2012 para. 3.4., balancing different expert statements differently does not
entail to a violation of the right to be heard.
89 Redfern/Hunter/Blackaby/Partasides, para. 6.90.
90 This is clearly a discretionary power and not an obligation of the Panel, BGer. 4A_70/2015 para.
3.2.2; CAS 2009/A/2014, AMA v. RLVB & Iljo Keisse, Award of 6 July 2010, para. 34.
91 The Panel may also do so if the counterparty has omitted to ask for a document within the
relevant deadline, cf. CAS 2007/A/1429, Bayal Sall v. FIFA and IK Start & CAS 2007/A/1442,
ASSE Loire v. FIFA and IK Start, Award of 25 June 2008, para. 8. Such requests can refer not
only to matters of facts, but also to legal issues, cf., e.g., CAS 2008/A/1545, Andrea Anderson
et. Al. v. IOC, Award of 16 July 2010, p. 4.
92 Cf., e.g., CAS 1998/A/212, UCI v. M & FCI, Award of 24 February 1999, p. 3.
Article R44 CAS Code – Noth/Haas 1553

other evidentiary measures and procedural acts.93 Art. R44.3(2) shows that the Panel
has unfettered powers in reviewing the case, including in dealing with the related
evidentiary issues.94 The “other procedural act[s]” contemplated in this provision
do not encompass provisional or conservatory measures within the meaning of
Art. R37.95
The question of whether unlawfully or illegally obtained means of evidence may be 32
used in arbitration proceedings or not, is not governed by the CAS Rules. In general,
the principle of good faith prevents the arbitral tribunal from admitting evidence that
a party collected by unlawful means.96 However, this does not bar illegally obtained
evidence from the outset. The decision whether or not to admit the evidence should
be taken through a careful balancing of the interests involved.97 Equally the Federal
Supreme Court has stated that illegally obtained evidence should be admitted if the
interest in protecting the right that was infringed by collecting the evidence weighs
less than the interest in establishing the truth.98

4 Means of Evidence

There is no numerus clausus of means of evidence in CAS proceedings.99 The evidence 33

adduced may, in particular, include the production of documents, as well as the
examination of parties, witnesses and experts and site or subject-matter inspections;
however, other means of evidence may also be admitted.
Hair analyses, for instance, have been admitted in CAS proceedings.100 Polygraphs 34
(lie detectors) are not admitted in court proceedings according to the Swiss Federal
Supreme Court;101 however, on a recent CAS decision, this mean of evidence was

93 Art. R44.3(2), first sentence.

94 Cf. CAS 2008/A/1631, RCK v. FAF, Award of 29 September 2008, para. 23; CAS 2007/A/1368,
UCI v. M. & FCI, Award of 25 March 2008, para. 20.
95 CAS 2007/A/1396, WADA & UCI v. Alejandro Valverde & RFEC, Award of 10 July 2008, paras.
66–68.
96 Berger/Kellerhals, para. 1320.
97 CAS 2009/A/1879, Alejandro Valverde Belmonte v. CONI & AMA & UCI, Award of 16 March
2010, paras. 133 et seq.
98 BGE 131 I 272 para. 4; BGE 4A_362/2013 of 27 March 2014 para. 3.2.2, where an action for
annulment of a CAS award based on Art. 190(2)(e) PILS against the admission of illegally
obtained evidence was dismissed. Cf. also CAS 2011/A/2425, Ahongalu Fusimalohi v. FIFA,
para. 80, mentioned in Rigozzi/Quinn, pp. 42 et seq.: “In this respect, the use of illegal evidence
does not automatically concern Swiss public policy, which is violated only in the presence of an
intolerable contradiction with the sentiment of justice, to the effect that the decision appears
incompatible with the values recognized in a State governed by the rule of law”.
99 Cf. Art. R44.1(3), first sentence. According to Art. 182 PILS, the parties may determine which
means of evidence to be admitted.
100 CAS 2009/A/1926 & 1930, ITF v. Gasquet & WADA v. ITF & Gasquet, Award of 17 December
2009, para. 34; CAS 1998/A/214, B v. FIJ, Award of 17 March 1999, para. 19; cf. also CAS OG
00/006, B v. IOC & German NOC & IAAF, Award of 22 September 2000, para. 40c.
101 BGer. 6B_663/2011 para. 1.3; BGer. 6B_708/2009 para. 1.6; BGE 109 Ia 273 para. 7; CAS
1999/A/246, W v. FEI, Award of 11 May 2000, para. 9; CAS 1996/A/157, FIN v. FINA, Award
of 23 April 1997, para. 14; CAS OG 00/006, B v. IOC & German NOC & IAAF, Award of 22
September 2000, para. 40d.
 1554 Arbitration in Switzerland – The Practitioner’s Guide

accepted by CAS.102 Surveys can be very important in some IP related sport matters.103
Also demonstrative evidence,104 hearsay evidence,105 notoriety,106 primers,107 and
commonly accepted rules of experience (“Erfahrungsgrundsätze”) can be admitted.
However, taking of oaths are not admitted.108 In general, the IBA Rules may provide
useful guidance to CAS Panels and parties.109

5 Written Evidence and Production of Documents

35 The parties must mention all written evidence in their written submissions and
produce it together with the same where available.110 The terms “written evidence”
and “documents” used in Arts. R44.1 and R44.3 essentially correspond to the
definition of documents under the 2010 IBA Rules, i.e., writings, communications,
pictures, drawings, programs or data of any kind, whether recorded or stored on paper
or by electronic, audio, visual or any other means.111 It should be stressed that any
form of electronic documents are covered by the term document in the CAS Rules.
36 Photocopies of written evidence shall suffice unless the authenticity of the photocopy
is disputed or the Panel requests that the original be submitted for inspection on other
grounds.112 If the authenticity of the copies is doubted,113 the tribunal may disregard
the documents in question as unreliable114 unless there is a credible explanation
why the original is missing or cannot for other reasons be produced. Whether the
filing only of certain parts of a specific document is sufficient and whether blacking
of certain parts of a specific document is acceptable, has to be determined in the
light of all circumstances of the specific individual case; but it is well possible that
non-disclosure of some parts can lead to an adverse inference.115 If necessary, it is

102 CAS 2011/A/2384, UCI v. Alberto Contador Velasco & RFEC & CAS 2011/A/2386, WADA v. Alberto
Contador Velasco & RFEC, Award of 9 February 2012, paras. 233–243; cf. also Rigozzi/Quinn, p.
41, supporting this means of evidence, but at the same time warning that it should not become
pre-requisite. Cautious CAS 2014/A/3487, Campbell-Brown v. JAAA & IAAF, Award of 10 April
2014, para. 109. For detail, see Haas/Trunz, Zulässigkeit polygraphischer Untersuchungen in
Straf-, Zivil- und sportrechtlichen Schiedsverfahren, in Schulze (ed.), Aktuelle Rechtsfragen im
Profifussball, 2015, pp. 89 et seq.
103 Cf. Rüetschi, in: Noth/Bühler/Thouvenin (eds.), Beweisrecht MSchG, paras. 17 – 53, with further
references.
104 Demonstrative evidence such as diagrams, graphs, charts, tables, maps, simulations or anima-
tions helps illustrating the underlying evidence and/or persuading the panel, cf. Ehle, Effective
Use, para. 3.31.
105 Cf. Cook/Garcia, p. 200, stating that indirect evidence is often accepted in international
arbitration.
106 BGE 135 III 88 para. 4.1. confirmed regarding exchange rate Swiss Francs – Euro; BGE 130 III
113 para. 3.4 denied regarding generic term in trademark law; BGE 117 II 321 para. 2 confirmed
regarding the influence of the soil conditions on the quality of mineral water.
107 Cf. Art. 53 WIPO Rules.
108 Oschütz, p. 315.
109 Kaufmann-Kohler/Bärtsch, p. 82; cf. also Berger/Kellerhals, para. 1313, describing the IBA
Rules as “a code of generally accepted principles for the taking of evidence in international
arbitration”.
110 Art. R44.1(2), first sentence; cf. also Art. 3(1) 2010 IBA Rules.
111 Rigozzi/Quinn, p. 6.
112 Cf. Art. 3(12)(a) 2010 IBA Rules; cf. also Rigozzi/Quinn, p. 6.
113 Regarding relevant circumstances raising reasonable doubts on a document’s authenticity, see
Gabriel, ASA Bull. 2011, pp. 832 et seq.
114 Redfern/Hunter/Blackaby/Partasides, para. 6.118.
115 Swiss Federal Supreme Court decision of 9 January 2008, 4A_450/2007, ASA Bull. 2008, p. 543.
Article R44 CAS Code – Noth/Haas 1555

also possible for the Panel to appoint a graphologist or other qualified expert for
the authentication of documents and signatures.116
A party may request the Panel to order the other party to submit documents in its 37
custody or under its control.117 The party seeking such an order must demonstrate that
the documents in question are likely to exist and are relevant to the case.118 According
to Mavromati/Reeb, the CAS Code adopts an approach between the restrictive civil
law concept and the extensive US law concept.119 The request should specify the
documents in detail as much as possible. Art. 3(3)(a) of the IBA Rules provide helpful
guidelines as to the degree of detail, i.e.: (i) either a description that allows a clear
identification of the requested document or (ii) a description in sufficient detail of a
narrow and specific requested category of documents that are reasonably believed
to exist (e.g. “a copy of all purchase orders of the merchandising product X by the
company Y from the company Z under the merchandising agreement ABC during
the time period 1 January 2014 to 31 December 2015”). It is also worth stating here
that under Swiss arbitration law, actions by stages (“Stufenklage”) can be admitted
subject to the conditions foreseen in the Swiss civil procedural law. In line with Art.
3(3) IBA Rules, fishing expeditions like in the American-style discovery proceedings
are not permitted under Swiss arbitration law.120 The legitimate interests of the party
opposing the submission of the said documents must also be considered by the Panel
when deciding on the request.121 Where a party refuses to comply with such a request,
the Panel does not have any recourse to enforce the request without the assistance
of the state courts. However, where a party fails to submit the requested documents
without providing a satisfactory explanation, the Panel may infer that such documents
would be adverse to the interests of said party.122 An order for document production
under the IBA Rules cannot be challenged before the Swiss Federal Supreme Court.123
The Panel should not overuse the powers of investigation, in particular because of
the need to avoid partiality and maintain equal treatment of both parties.124
The Panel may not order the production of documents in the custody of third parties 38
such as a doping laboratory.125 No conclusion may be drawn from the third party’s
refusal to submit such documents.126

116 Cf. CAS 2012/A/2957, FC Khimki v. E. Raça, Award of 5 February 2014, para. 4.4.
117 Art. R44.3(1), first sentence. See, e.g., CAS 2007/A/1359, FC Pyunik Yerevan v. E, AFC Rapid
Bucaresti & FIFA, Award of 26 May 2008, p. 8. See also Art. 3(2)–(4) 2010 IBA Rules.
118 Art. R44.3(1), second sentence. Cf. BGer. 4A_50/2013 para. 4, where the tribunal’s refusal to
order the production of confidential information did not qualify as a violation of the right to
be heard.
119 Mavromati/Reeb, Art. R43 para. 24.
120 Tercier/Bersheda, ASA Special Series no. 35, p. 80; cf. Coccia, International Sports Justice, p. 60,
stating that in practice, CAS arbitrators “tend not to allow” fishing expedition; cf. also Berger/
Kellerhals, para. 1329, who state that in international arbitration the prevailing view is that
there is no room for such American-style discovery.
121 Kaufmann-Kohler/Bärtsch, p. 82.
122 Art. 9(5) of the 2010 IBA Rules; Swiss Federal Supreme Court decision of 28 March 2007,
4A_2/2007, ASA Bull. 2007, p. 610; Swiss Federal Supreme Court decision of 9 January 2008,
4A_450/2007, ASA Bull. 2008, p. 543; Schneider/Scherrer, para. 21 at Art. 184.
123 BGer. 4A_596/2012 para. 3 (under ICC Rules).
124 Beloff/Netzle/Haas, para. E3.104.
125 Rochat/Cuendet, p. 66; Oschütz, p. 314; Kaufmann-Kohler/Bärtsch, pp. 82–83; Mavromati/Reeb,
Art. R43, para. 31 and 35; Rigozzi/Quinn, p. 13, unless the third party is under the control of
an arbitration party.
126 Berger/Kellerhals, para. 1326.
 1556 Arbitration in Switzerland – The Practitioner’s Guide

6 Witnesses

39 The parties must list any witnesses they intend to call and provide a brief summary
of their expected testimony.127 Any witness statements are to be filed together with
the submissions, as a principle.128 129 However, where the parties have not expressly
agreed otherwise, there is no strict duty to provide a witness statement in order to
present a witness whose attendance has been duly specified before the hearing.130
Art. 4(5)(d) of the 2010 IBA Rules contemplates that witness statements must contain
an affirmation of the truth of the witness statement.131 After the exchange of written
submissions no further witness may be called unless the other party agrees to the
calling of such witness or the Panel accepts it due to exceptional circumstances.132
As the CAS Code does not contain any requirements regarding the question of who
may appear as a witness in CAS proceedings, any person may be a witness, as a
principle.133 Hence, witnesses may, for instance, be a coach in a matter pertaining to
his own athlete or club, a director in a dispute concerning his own club or company,
a member or official in proceedings regarding his federation (etc.).
40 The CAS Code does not contain any rule regarding the question of whether a party’s
counsel may interview witnesses and experts. In accordance with Art. 4(3) of the
2010 IBA Rules, one must assume that such interviews are not prohibited. Against
this background, the common practice that a party’s counsel will assist the witness
in preparing the witness statements is not unlawful. However, to coach or even
influence the witness is apparently not allowed.
41 Where a witness refuses or fails to appear for oral testimony, the Panel does not
have the coercive power to subpoena him. However, the Panel may request judicial
assistance from the competent state court134 or simply take into account the witness’s
refusal to appear when evaluating his evidence.
42 Before hearing any witness, expert or interpreter, the Panel solemnly invites the
individual concerned to tell the truth, subject to the sanctions for perjury.135 If such
a person does not tell the truth, he may face serious criminal sanctions.136

127 Art. R44.1(3), first sentence.

128 Art. R44.1(3), second sentence. Such statements are usually signed, but not sworn. According
to Netzle, p. 213, a sworn witness statement may be submitted where the witness is absent or
to underline the credibility of the witness.
129 According to Netzle, p. 213, the parties are often invited to designate their witnesses and
experts and to present the witness statements only after the written submissions have been
filed, which can be regarded as an additional written submission ordered by the President in
application of Art. R44.1(1).
130 Netzle, p. 213; Coccia, International Sports Justice, p. 61, but recommends doing so; undecided
Kaufmann-Kohler/Bärtsch, p. 84, who recommend that the President should clarify this matter in
a procedural order at the outset of the proceedings; cf. also Rigozzi/Quinn, pp. 8–9, supporting
the use of witness statements for efficiency reasons.
131 This provision also defines the further content of witness statements.
132 Art. R44.1(2), second sentence (by analogy) and Art. R44.2(3), first sentence.
133 Cf. also Art. 4(2) of the 2010 IBA Rules.
134 Cf. Art. 184(2) PILS.
135 Art. R44.2(6).
136 Cf. Arts. 306, 307 and Art. 309 Swiss Criminal Code; Berger/Kellerhals, para. 1339; Kaufmann-
Kohler/Bärtsch, p. 84.
Article R44 CAS Code – Noth/Haas 1557

In accordance with the practice of international arbitration, each party usually 43

conducts examinations in-chief of its witnesses and cross-examinations of the wit-
nesses called by the other parties.137 The parties are usually given the opportunity
to re-examine the witnesses. In addition, the witnesses may be questioned by
the arbitrators. The Panel usually excludes a witness of fact from attending the
examination of other witnesses of fact prior to his own testimony in order to avoid
influencing his testimony.138 However, witness confrontation for clarifying some
specific issues is not excluded under the CAS Code.

7 Experts

The parties shall also list any experts they wish to be heard and set out the latters’ 44
area of expertise.139 In doping cases it is almost systematic for the parties to appoint
experts.140 Where it is deemed appropriate, the Panel may also appoint its own
experts.141 It shall consult with the parties with respect to the appointment and terms
of reference of such expert.142 The tribunal-appointed experts must be independent
from the parties.143 In accordance with Art. R33(1) amended in the course of the
2013 revision, the experts shall disclose any circumstances that may affect (and
not only likely affect) their independence. The provisions regarding independence
and challenge of arbitrators according to Arts. R33-R34 of the CAS Code will also
apply by analogy to the experts appointed by the Panel.144 Objections with regard
to independence must be raised immediately once the party becomes aware of the
grounds calling the independence of the expert into question.145 Where the Panel
rejects the challenge of an expert, such a decision is not subject to appeal, but it
can be indirectly challenged in setting aside proceedings against the award or at
the enforcement stage.146
Not only individuals but also legal entities may be appointed as experts provided 45
that a representative to attend the expert hearing is identified.147 The expert to be
appointed must have the required expertise and experience in the relevant field. The
expert appointed by the Panel acts as an auxiliary to the Panel.148 Although the Panel
is not bound by the expert’s finding,149 it may not simply ignore them, and will have
to indicate the grounds for departing from or disregarding such findings.150 The right

137 Rigozzi, para. 991; Kaufmann-Kohler/Bärtsch, pp. 84–85; Netzle, p. 213.

138 Cf. Born, pp. 1846–1847.
139 Art. R44.1(3), first sentence.
140 Kaufmann-Kohler/Rigozzi, para. 517.
141 Cf. Art. R44.3(2), first sentence.
142 Cf. Art. R44.3(3), first sentence.
143 Art. R44.3(3), second and third sentence. Cf. also Art. 6(2) 2010 IBA Rules.
144 Cf. BGE 126 III 249 para. 3c; Berger/Kellerhals, para. 1350; Poudret/Besson, para. 667; critical
Schneider, ASA Bull. 1993, para. 24.
145 BGE 126 III 249 para. 3c.
146 BGE 126 III 249 para. 3c; Poudret/Besson, para. 667.
147 Schneider, ASA Bull. 1993, para. 21.
148 Cf. Berger/Kellerhals, para. 1341.
149 Schneider, ASA Bull. 1993, para. 39. However, if the parties agree that the expert’s conclusion
shall have binding effect (in German “Schiedsgutachten”), it shall be binding for the Panel as
well.
150 Poudret/Besson, para. 666.
 1558 Arbitration in Switzerland – The Practitioner’s Guide

to be heard is not violated if the tribunal adopts the conclusions of party-appointed

experts which were not disapproved by evidence.151
46 It is at the Panel’s discretion to decide whether it is appropriate to appoint an expert.
However, where the parties request the Panel to appoint an expert concerning a
specific issue, it is rare for the Panel to find grounds that justify acting against the
parties’ will.152 Obtaining the requested expert opinion is part of the right to be
heard.153 Where none of the parties has requested the appointment of an expert to
assist the Panel, the latter is entitled to make such an appointment only if it deems
it appropriate, i.e., if it understands that it is not in a position to render a proper
award without the assistance of an expert.154 However, where both parties object
to the appointment of an expert, the Panel must respect their will in the matter (in
particular also because the costs caused by the involvement of an expert can be
very high).
47 As a principle, experts must submit an expert report before the hearing. The CAS
Code does not contain any rules regarding the requirements for such report; in
case the Panel has not defined these requirements in an order, one can refer to the
corresponding IBA Rules.155

E Expedited Procedure (Article R44.4)

48 The purpose of this rule is to provide parties with more efficient proceedings in
terms of time and cost. The expedited procedure results in an award that is treated
in the same manner as an award rendered under the normal procedure.
49 Each party may request an expedited procedure, and the Panel may propose one.
However, the Panel may proceed in an expedited manner only where both parties
agree.156 If one party disagrees, this procedure may not be applied (unless the
disagreement is against the rules of good faith). The parties’ consent can also be
given in advance, for instance, by a stipulation in the contract between the parties
containing the arbitration clause.157 Such consent can also be achieved by requesting
the expedited procedure in the claimant’s request for arbitration and by giving the
respondent’s consent in the answer to the request for arbitration.
50 The Panel may issue appropriate directions.158 This provision leaves the Panel a lot
of flexibility to tailor appropriate proceedings. For instance, it may set shorter time
limits, limit the number of submissions exchanged or the length of any hearings, or
set a maximum of time for pleadings or maximum of pages for briefs.

151 BGer. 4A_572/2015 para. 4.

152 Born, p. 1861.
153 BGer. 4P.115/2003 para. 4.2; Poudret/Besson, para. 664.
154 Art. R44.3(2), first sentence; cf. Poudret/Besson, para. 664.
155 Cf. Art. 5(2) and Art. 6(4) of the 2010 IBA Rules.
156 See the clear wording of Art. R44.4; of the same view: Mavromati/Reeb, Art. R43, para. 35.
157 Mavromati/Reeb, Art. R43, para. 26.
158 Art. R44.4.
Article R44 CAS Code – Noth/Haas 1559

F Default (Article R44.5)

Article R44.5 of the CAS Code governs certain critical legal consequences and effects 51
of a party’s default. In particular, it ensures that the right to be heard is observed
and that the award is valid and effective.
Where the claimant fails to submit its statement of claim in accordance with Art. 52
R44.1, the request for arbitration is deemed withdrawn.159 However, this only applies
where the request for arbitration is not comprehensive and cannot be considered as
the statement of claim as well. In the event of any doubts, the court must require
the necessary clarifications from the claimant.160 Furthermore, it is not clear from
the wording of the CAS Code what the effects of such a withdrawal are, namely
whether it has res judicata effect. As the respondent has at that point of time not
yet filed the statement of defense, i.e., the response, in the authors’ view such a
withdrawal has no res judicata effect.
Where the respondent fails to submit its response in accordance with Art. R44.1, 53
the Panel may nevertheless proceed with the arbitration.161 However, this does not
imply that the respondent acknowledges the claimant’s facts and claims. The burden
of proof still remains with the claimant.
Where the claimant fails to submit its reply or the respondent fails to submit its 54
second response, or where one of the parties fails to file any other later submission
(such as a post-hearing briefs) the Panel must also proceed with the arbitration.162
Where the claimant and/or the respondent fail to appear at the hearing, the Panel 55
will nevertheless proceed with the hearing.163 The purpose of this provision is the
avoidance of (tactical) delays of the proceedings by non-presence of a party.164 A
postponement of the hearing should only be admitted on important grounds such
as proven sickness of a party.
In the course of the last revision of the CAS Code, it has been clarified that if a 56
called witness does not appear at the hearing, the Panel may nonetheless proceed.165
The purpose of this rule is the avoidance of (tactical) delays of the proceedings by
non-presence of a witness.166 This rule also applies to party-appointed, but not to
Panel-appointed experts.
An award rendered in the absence of some party or witness in accordance with Art. 57
R44.5 is valid and enforceable like an award rendered in adversarial proceedings.167

159 Art. R44.5(1).

160 Oschütz, pp. 289–290.
161 Art. R44.5(2); cf. also Mavromati/Reeb, Art. R44, para. 50 stating that the parties are simply
informed about the non-receipt and the continuation of the proceedings.
162 Art. R44.5(2) by analogy.
163 Art. R44.5(3); cf. also BGer. 4A_70/2015 para. 3.2, where the Swiss Federal Supreme Court
concluded that the refusal to hold a second hearing after claimant had failed to attend the first
hearing did not qualify as a violation of the right to be heard.
164 Mavromati/Reeb, Art. R43, para. 50.
165 Art. R44.5(3).
166 Mavromati/Reeb, Art. R43, para. 50.
167 Mavromati/Reeb, Art. R43, para. 51.
 1560

Article R45: Law Applicable to the Merits

The Panel shall decide the dispute according to the rules of law chosen by the
parties or, in the absence of such a choice, according to Swiss law. The parties may
authorize the Panel to decide ex aequo et bono.

I PURPOSE OF THE PROVISION

1 Article R45 governs the law applicable to the substance of the dispute, i.e., the
merits. It states that the dispute must be decided pursuant to the law chosen by the
parties and, in the absence of such a choice, pursuant to Swiss law. This provision
confirms both the priority of party autonomy and the great importance of Swiss
law in CAS ordinary proceedings, as the latter will always apply where the parties
have failed to choose the applicable law.
2 This provision does not govern the law applicable to the arbitration procedure;
however, it is sometimes not easy to distinguish between matters of procedure and
matters of substance, for instance, in the field of evidence1 or regarding a party’s
standing to sue or to be sued.2

II CONTENT OF THE PROVISION

A Chosen Law

3 The parties are entitled to jointly decide what law shall apply to their dispute.3
They may choose the applicable law before or after the dispute has arisen. Unless
expressly foreseen, the choice of law qualifies as a “Sachnormverweisung”, i.e. a
reference to the substantial laws of the law chosen under exclusion of the conflict of
law rules.4 The parties’ choice of law is not limited to national laws: it may also refer
to transnational law, general legal principles or other rules such as lex mercatoria
or lex sportiva.5 6 Alternatively, the parties may also choose that their dispute be
decided ex aequo et bono.7 Moreover, the parties are free to choose different laws to
govern different aspects of their dispute.8 Regardless of the chosen law, the Panel
must always take into account any relevant public policy norms, i.e., the public policy

1 Berger/Kellerhals, para. 1372.

2 Some CAS cases have treated the issue of standing to sue/standing to be sued as a procedural
matter (e.g., CAS 2007/A/1329, 1330, Award of 15 December 2007, para. 3), while others
treated it as a matter of substantive law (e.g. CAS 2008/A/1517, Award of 23 February 2009,
paras. 19–27). However, under Swiss law the standing to sue and to be sued is a matter of
substantive law, cf. Berger/Kellerhals, para. 352.
3 Art. R45, first sentence.
4 Mavromati/Reeb, Art. R45, para. 61.
5 However, scholars have different understandings of the concept and notion of lex sportiva, cf.
McLaren, pp. 40–64; Coccia, International Sports Justice, pp. 67–69; for an overview on lex
sportive, see also Loquin, pp. 85–108.
6 Kaufmann-Kohler/Bärtsch, p. 88.
7 Art. R45, second sentence.
8 Berger/Kellerhals, para. 1397; Girsberger/Voser, 2016, paras. 1355 et seq.
Article R45 CAS Code – Noth/Haas 1561

rules of the lex causae as well as those of other legal systems which are applicable
to the case on the basis of Art. 19 PILS.9
The validity of choice of law agreements is governed by the lex arbitri.10 The form 4
requirements governing the validity of arbitration agreements are not applicable
to choice-of-law clauses. The parties’ choice of law is not required to be express
and in writing, it may even be tacit; in particular, it suffices for such a choice to be
clear from the circumstances or from the parties’ conduct during the proceedings.11
In a case where the parties based their arguments throughout the proceedings on
the provisions of the Olympic Charter and on anti-doping rules as well as on the
relevant CAS jurisprudence, the Panel considered that this meant that the parties
made a corresponding choice of rules.12
Like an arbitration agreement, the choice of law agreement is independent and 5
separate from the main contract. Hence, the invalidity of the main contract does
not necessarily entail the invalidity of the choice of law agreement.13
A choice of law clause may be drafted in narrow or broad terms. In case of doubt, it 6
should be assumed in principle that the parties had a broad understanding, meaning
that they intended their chosen law to apply not only to contractual, but also to
non-contractual claims related to the contract in question.14
An allegedly wrong determination of the applicable law to a CAS case is not 7
tantamount to a public policy violation.15

B Swiss Law

Where the parties are unable to agree on the applicable law, Swiss law shall apply 8
to the dispute.16 “Swiss law” here means the substantive laws of Switzerland,
including the international treaties concluded by Switzerland, but excluding Swiss
private international law.17
This importance of Swiss law in CAS proceedings appears to have historical 9
reasons: on the one hand, the CAS has its seat in Switzerland; on the other hand,
many important federations such as the IOC, FIFA and UEFA also have their seat in
Switzerland, and some of them even contemplate in their statutes that Swiss law
applies complementarily to the parties’ chosen law.18

9 Rigozzi, paras. 1181–1192; Rochat/Cuendet, p. 74; Kaufmann-Kohler/Rigozzi, para. 7.89;

Mavromati/Reeb, Art. R45, para. 63; cf. CAS 98/O/200, AEK Athens and SK Slavia Prague v.
UEFA, para. 10 with regards to EC competition law being considered as foreign mandatory law.
10 Kaufmann-Kohler/Bärtsch, p. 87; Girsberger/Voser, 2016, para. 1385.
11 CAS 2002/O/373, COC & Beckie Scott v. IOC, Award of 18 December 2003, paras. 11 and
14; Kaufmann-Kohler/Bärtsch, p. 88; Rochat/Cuendet, p. 74; Berger/Kellerhals, para. 1269;
Mavromati/Reeb, Art. R45, paras. 59 and 64 et seq.; Coccia, International Sports Justice, p. 65.
12 CAS 2002/O/373, COC & Beckie Scott v. IOC, Award of 18 December 2003, para. 14.
13 Berger/Kellerhals, para. 1390; Mavromati/Reeb, Art. R45, para. 58.
14 Berger/Kellerhals, para. 1401.
15 BGer. 4A_654/2011 para. 4.
16 Art. R45, first sentence.
17 Poudret/Besson, para. 684; CAS 2003/O/486 Fulham FC v. Olympique Lyonnais, Award of 15
September 2003, para. 8; this understanding is also indicated by the title of this provision “Law
Applicable to the Merits” and “Droit applicable au fond”.
18 E.g., Art. 66(2) FIFA Statutes.
 1562 Arbitration in Switzerland – The Practitioner’s Guide

10 Due to this rule, Swiss law applies even to cases with no relation to Switzerland,
where the parties are unable to agree on the applicable law.19 Therefore, e.g., the CAS
was bound to apply Swiss law to a contract regarding the rights to host a sporting
event in the USA, concluded between an international sports union with its seat in
Canada and a US company that bore no relation to Swiss law.20 This prevalence of
Swiss law has been criticized by some scholars, in particular because it differs from
the law of international commercial arbitration and limits the freedom arbitrators
normally enjoy in determining the applicable law and in applying general principles
of law.21 In their view it makes more sense to apply the law that bears the closest
relation to the case concerned.22 In line with this, the CAS has reserved the test
of whether the application of Swiss law is appropriate.23 Although this criticism
appears well-founded, the wording of Art. R45 very clearly states that Swiss law
applies in the absence of a choice of law by the parties, leaving no room for other
interpretations such as the application of the law that has the closest connection
to the case. Deviating from this unambiguous rule would require an amendment
to the CAS Code. Furthermore, one should not underestimate the advantage of the
current provision in terms of legal certainty and clarity.24 In addition, it assures a
certain degree of coherence and consistency.25
11 The wording of this provision does not however contemplate that Swiss law applies
complementarily or subsidiarily.26 The questions of how to fill a gap in a statute
or how to complete an agreement not governing a legal issue must be answered in
accordance with the corresponding rules of the applicable law.

C Ex Aequo et Bono

12 Under Art. R45, second sentence, the parties also have the option of authorizing the
Panel to decide ex aequo et bono,27 i.e., to render its award based on considerations
of fairness and not on positive law.28 An authorization to decide ex aequo et bono
does not however relieve the Panel from the duties of establishing the relevant facts
of the case and setting out the grounds upon which the award is based.29 The power

19 Oschütz, pp. 50, 327–328; Kaufmann-Kohler/Bärtsch, p. 90.

20 CAS 96/O/161, ITU v. Pacific Sports Corp. Inc., Award of 4 October 1999, in particular para.
9, stating that it is to be assumed that when the parties agreed to refer to the CAS they were
aware of this provision and missed the opportunity to choose another law.
21 Rigozzi, para. 1174; Loquin, p. 91; Kaufmann-Kohler/Rigozzi, para. 7.37; Kaufmann-Kohler/
Bärtsch, pp. 90–91.
22 Cf. Art. 187(1) PILS.
23 CAS 2002/O/373 COC & Beckie Scott v. IOC, Award of 18 December 2003, para. 15: “the ap-
plication of Swiss law is also appropriate”. This is in line with other arbitration rules, e.g., Art.
17(1) ICC Rules or Art. 35(1) UNCITRAL Rules.
24 Sternheimer/Le Lay, CAS Bull. 2012/1, p. 54; Coccia, International Sports Justice, p. 65.
25 Mavromati/Reeb, Art. R45, para. 69.
26 Contra: CAS 2003/O/482, Ortega v. Fenerbahçe & FIFA, Award of 5 November 2003, para. 8;
cf. also Art. R58, expressly stating “subsidiarily”.
27 Art. 187(2) PILS also provides that the parties can authorize the panel to decide ex aequo et
bono.
28 Kaufmann-Kohler/Bärtsch, p. 91; Girsberger/Voser, 2016, para. 1426; Mavromati/Reeb, Art. R45,
para. 76 stating that the ordre public still needs to be respected. Cf. also Netzle, ASA Special
Series no. 41, p. 27 stating that the arbitrators still have to “pay close attention to precedents”.
29 Berger/Kellerhals, para. 1445.
Article R45 CAS Code – Noth/Haas 1563

to decide ex aequo et bono refers to the merits of the dispute only, but not to the
conduct of the arbitral procedure governed by the CAS Code.
An agreement on an ex aequo et bono decision does not require a particular form, 13
i.e., it may also be oral. However, the authorization to decide ex aequo et bono
must be unequivocal, which requires express statements by the parties.30 It is not
requested that the parties use the wording “ex aequo et bono” as used in Art. R45;
crucial is simply that the reference to ex aequo et bono is expressed unambiguously.31
It is also possible that the Parties authorize the Panel to answer only some of the 14
questions at stake under the principle of ex aequo et bono (for instance to determine
the amount of damages according to the principle ex aequo et bono and to determine
all other questions such as the requirements for damages under Swiss law). Likewise,
and although not explicitly mentioned by the CAS Code, the parties also have the
option of authorizing the Panel to decide as amiable compositeur, i.e., to mitigate
the effects of the applicable law if they appear unfair in a given case.32

D Jura Novit Arbiter

The Swiss Federal Supreme Court has ruled that the principle of jura novit curia, 15
i.e., that the court is deemed to know the law and must apply it ex officio, not only
applies in state court litigation, but also in arbitrations in Switzerland.33 Hence, the
principle “jura novit CAS” applies in all CAS arbitrations.34
This means, inter alia, that the parties do not have to prove the contents of the 16
applicable law as a fact and that the arbitrators are not limited by the legal submissions
made by the parties.35 However, in the event the arbitrators intend to rely on legal
rules which were not addressed by the parties and the applicability of which was not
reasonably foreseeable for them, the arbitrators must give the parties the opportunity
to set out their views on these legal issues, as failing to do so would constitute a
violation of the parties’ right to be heard.36 In a very recent decision, the Swiss Federal
Supreme Court rejected though the challenge of an award based on the right to be
heard due to the surprising application of the law, holding that the parties may limit
the mandate of the arbitral tribunal to only those legal ground invoked by the parties.37

30 Rochat/Cuendet, p. 76; contra: Kaufmann-Kohler/Bärtsch, p. 91; Berger/Kellerhals, para. 1494;

Girsberger/Voser, 2016, paras. 1431 et seq.
31 Cf. Mavromati/Reeb, Art. R45, para. 72, referring to a case in which „equality arbitration“ was
considered to be sufficient to authorize the Panel to rule ex aequo et bono.
32 Cf. Berger/Kellerhals, para. 1448.
33 BGer. 4A_554/2014 para. 2.1; BGer. 4P.114/2001 para. 3; BGer. 4P.260/2000 para. 5b, referring
to BGE 120 II 172 para. 3a and BGE 116 II 594 para. 3b. Cf. also Meier/McGough, ASA Bull.
2014, pp. 503 et seq., stating that it is rather a power than a duty of the arbitral tribunal to
apply the law ex officio; for a detailed analysis, cf. Arroyo, Jura Novit Arbiter, pp. 27–54; see
also the above commentary by Arroyo on Art. 190 PILS (Chapter 2, Part II), paras. 144–159.
34 Cf. CAS 2005/A/983, 984, Club Atlético Peñarol v. Carlos Heber Bueno Suarez, Cristian Gabriel
Rodriguez Barrotti & Paris Saint-Germain, Award of 12 July 2006, para. 13 (item 3); for detail
on the Supreme Court case law regarding jura novit curia/arbiter, see the above commentary
by Arroyo on Art. 190 PILS (Chapter 2, Part II), paras. 144–159; cf. also Arroyo, Jura Novit
Arbiter, pp. 27–54.
35 Girsberger/Voser, 2016, paras. 1421 et seq.
36 BGE 130 III 35 para. 6; BGer. 4P.260/2000 para. 6a; Berger/Kellerhals para. 1435; Coccia,
International Sports Justice, p. 60.
37 BGer. 4A_554/2014 para. 2.2.
 1564

Article R46: Award

The award shall be made by a majority decision, or, in the absence of a majority,
by the President alone. The award shall be written, dated and signed. Unless the
parties agree otherwise, it shall briefly state reasons. The sole signature of the
President of the Panel or the signatures of the two co-arbitrators, if the President
does not sign, shall suffice. Before the award is signed, it shall be transmitted to
the CAS Secretary General who may make rectifications of pure form and may
also draw the attention of the Panel to fundamental issues of principle. Dissenting
opinions are not recognized by the CAS and are not notified.
The Panel may decide to communicate the operative part of the award to the
parties, prior to delivery of the reasons. The award shall be enforceable from such
notification of the operative part by courier, facsimile and/or electronic mail.
The award, notified by the CAS Court Office, shall be final and binding upon the
parties subject to recourse available in certain circumstances pursuant to Swiss Law
within 30 days from the notification of the original award. It may not be challenged
by way of an action for setting aside to the extent that the parties have no domicile,
habitual residence, or business establishment in Switzerland and that they have
expressly excluded all setting aside proceedings in the arbitration agreement or in
a subsequent agreement, in particular at the outset of the arbitration.

I PURPOSE OF THE PROVISION

1 The purpose of Art. R46 is to provide rules that govern the award to be rendered,
in particular concerning the decision-making process, the form and content of the
decision and its effect.
2 This provision applies to full, partial or interlocutory awards. The provisions does
not (directly) apply to procedural orders. One must determine whether and to what
extent it may be applied (by analogy) to procedural orders on a case-by-case-basis.
In general the provision will apply mutatis mutandis also to orders on provisional
measures.

II CONTENT OF THE PROVISION

A Decision-Making Process

3 Article R46(1), first sentence, governs the process of making a decision for an arbitral
tribunal composed of more than one arbitrator: as a principle, the award shall be made
by a majority decision,1 meaning an absolute majority of the members of the Panel.2
This provision also holds that in the absence of a majority, the President decides alone.
The vote on the award must not be confused with the arbitrators’ prior deliberations.3

1 This is in line with Art. 189(2) PILS and Art. 382(3) ZPO.
2 Poudret/Besson, para. 740.
3 Kaufmann-Kohler/Bärtsch, p. 92; Kaufmann-Kohler/Rigozzi, paras. 7.114–7.120; Poudret/
Besson, para. 740.
Article R46 CAS Code – Noth/Haas 1565

As the CAS Code does not provide any rules with regard to deliberations, the Panel 4
has a wide discretion with regard to this matter. In particular, the arbitrators are
free to choose the means of communication, i.e., deliberations may take the form
of telephone or video-conferences, meetings at any place or exchanges in writing.4
Deliberations at the CAS are confidential; not even the parties have the right to
participate in, or to obtain information on, deliberations.5 According to the express
wording of Art. R46, dissenting opinions are not recognized by the CAS and may not
therefore be attached to the award.6 However, general remarks such as “the majority
of the Panel considers” or “the Panel has decided unanimously” are accepted.7 It is
further submitted that this does not preclude an arbitrator from drafting a dissenting
opinion and communicating it to the parties directly.8 Moreover, an arbitrator has
de facto the option to refuse to sign the award.9
Unlike Art. R59, Art. R46 does not provide any time limit for rendering the award. 5
Where there is a specific contractual time-limit agreed by the parties, the Panel
shall have jurisdiction to extend it. In any event, the Panel must ensure that the
award is rendered within a timeframe that is reasonable in view of all the relevant
circumstances, in particular the parties’ needs and the urgency of the case.
The CAS Code is silent on the question of what the consequences are where an 6
arbitrator blocks or delays deliberations by failing to participate. As a principle, the
other members of the Panel must be allowed to continue the proceedings and decide
without the defaulting arbitrator.10 Yet it is crucial that the defaulting arbitrator has
been put in a position to deliberate on an equal footing with the other arbitrators,
meaning that he must always be invited to attend the meetings of the Panel and
be given an opportunity to submit his comments on the successive drafts of the
award.11 As an alternative to this, one may examine whether the requirements for
a removal of the defaulting arbitrator pursuant to Art. R35 are met; although this
is a solution that usually proves costly and time-consuming and does not exclude
with certainty that the same problems may arise.

B Content, Form and Types of Award

Unless agreed otherwise by the parties, the award must briefly state grounds,12 7
which requires that the relevant facts and legal issues of the case and the essential

4 Kaufmann-Kohler/Bärtsch, p. 92; Kaufmann-Kohler/Rigozzi, para. 7.119; Berger/Kellerhals,

para. 1465; Mavromati/Reeb, Art. R46, para. 18.
5 Cf. Berger/Kellerhals, para. 1470; Poudret/Besson, para. 753.
6 Art. R46(1), sixth sentence.
7 Mavromati/Reeb, Art. R46, para. 23.
8 Cf. the below commentary on Art. R59.
9 However, see Mavromati/Reeb, Art. R46, para. 4, stating that the signing of the award “equates
to the deliberations made by the arbitrators rather than the arbitrators’ unreserved consent to
the content of the award”.
10 Berger/Kellerhals, para. 1478; Girsberger/Voser, 2016, paras. 1475 and 1490 et seq.
11 BGE 128 III 234 para. 3b; BGer. 4P.115/2003 paras. 3.2–3.3.
12 Art. R46(1), third sentence; cf. also Kaufmann-Kohler/Rigozzi, para. 7.127, stating that in reality
the extensiveness and style of the reasoning mainly depends on the President of the Panel;
Mavromati/Reeb, Art. R46, para. 13, stating that the reasons are a condition for the validity of
arbitral award.
 1566 Arbitration in Switzerland – The Practitioner’s Guide

allegations and arguments of the parties be reflected in the Panel’s considerations.13

However, failing to do so does not necessarily constitute a violation of the right to
be heard or the principle of public policy.14 In addition, the award must contain
the names and domiciles of the parties and their representatives, the names of the
arbitrators, the seat of the arbitration, the parties’ prayers for relief, the Panel’s
decision on each prayer for relief, incl. the decision on costs, and a brief description
of the proceedings showing that the principle of equal treatment and the right to be
heard have been respected.15
8 The award must be in written form.16 It must be signed, at least by the President
or the two co-arbitrators.17 This means that where one arbitrator refuses to sign the
award, this has no effect on the validity of the award.18 According to Mavromati/Reeb,
in case of notification of the operative part of the award, it is practice at CAS to have
it signed by the President of the Panel only, and that in case of extreme urgency, it
seems acceptable to have it signed exceptionally by the CAS Secretary General on
behalf of the Panel.19 Furthermore, it is also required that the award contains the
place and date of the rendering of the decision.20 The determination of the relevant
date is not expressly governed by the CAS Code; at CAS it seems common praxis
to use the date of the signing of the award (usually, the date is filled in by the CAS
Court Office that prepares the Panel’s decision for signing).
9 Before the signing of the award, the CAS Secretary General must review the decision
and examine whether it is formally in line with the CAS rules.21 In addition, the
CAS Secretary General may draw the attention of the Panel to fundamental issues
of principle,22 including CAS case law (since precedents have a somewhat distinct
role in CAS jurisprudence).23 The advice of the CAS Secretary General is not binding
on the arbitrators, however.24 The Swiss Federal Supreme Court has confirmed that
the independence of the Panel is not jeopardized by this provision.25
10 In accordance with Art. R59(3), first sentence, Art. R46(2), first sentence, adopted
in 2013, states that the Panel has the option to communicate the operative part of

13 BGE 121 III 331 para. 3b; BGer. 4P.26/2005 para. 3.1; BGE 133 III 235 para. 5.2; BGer.
4A_352/2009 para. 4.2.1; BGer. 4A_524/2009 para. 4.1; BGer. 4A_624/2009 para. 4.1.
14 E.g., BGE 116 II 373 para. 7b; BGE 133 III 235 para. 5.2; BGE 134 III 186 para. 6.1.
15 Kaufmann-Kohler/Bärtsch, p. 92; Mavromati/Reeb, Art. R46, para. 9. With regard to the costs,
see also Art. R64.4.
16 Art. R46(1), second sentence; Art. 189(2), second sentence PILS; Mavromati/Reeb, Art. R46,
para. 3, stating that the parties “do not seem to be able to waive the written form of the award”.
17 Art. R46(1), fourth sentence; cf. also Art. 189(2), third sentence PILS, stating that the signature
of the Chairman is sufficient; Wirth, para. 35 at Art. 189, stating that the signature of both
co-arbitrators suffices if the Chairman refuses to sign; Mavromati/Reeb, Art. R46, para. 4
footnote 8.
18 Kaufmann-Kohler/Bärtsch, p. 92; Girsberger/Voser, 2016, para. 1518.
19 Mavromati/Reeb, Art. R46, para. 5.
20 Art. R46(1), second sentence.
21 Art. R 46(1), fifth sentence; see also Mavromati/Reeb, Art. R46, para. 24, stating that in practice
the proofreading operation consists in suggesting the correction of formal mistakes.
22 Art. R46(1), fifth sentence.
23 CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/FC Sion, Award of 31 January 2012, paras.
120 and 260; for precedents in general, see Kaufmann-Kohler, ArbInt. 2007, pp. 357 et seq.;
see also Béguin, The rule of precedent in international arbitration, Jusletter of 5 January 2009.
24 CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/FC Sion, Award of 31 January 2012, paras.
120 and 260; cf. also Sternheimer/Le Lay, CAS Bull. 2012/1, p. 55.
25 BGer. 4A_612/2009 para. 3.3.
Article R46 CAS Code – Noth/Haas 1567

the award to the parties, prior to the delivery of the reasons. As a principle, the
requirements contained in Art. R46(1) also apply to the communication of the
operative part of the award. Such award is enforceable.26 It is submitted that this
option should be used only exceptionally, i.e. only when the parties need to have
clarified their legal positions without delay.
The CAS Code is silent on the types of award that may be rendered. However, it 11
is clear that in addition to final awards the Panel may render partial awards or
preliminary or interim awards.27 It is at the Panel’s discretion to determine whether
the issuance of partial or preliminary/interim awards is appropriate.28 Partial awards
may be challenged immediately on any ground listed in Art. 190(2) PILS;29 by
contrast, preliminary/interim awards may be challenged immediately only on the
grounds set out in Art. 190(2) (a and b) PILS.30 However, in some cases it is not
easy to distinguish between partial and interim awards.31 Further, it is the content
of the decision, and not its notation (formal description), which is decisive for the
admissibility before the Swiss Federal Supreme Court.32

C Effects of the Award and its Challenge

Upon notification to the parties, the award is “final and binding upon the parties”.33 12
Final means that it is enforceable and terminates the proceedings; binding means
that it is subject to res judicata.34 However, this does not mean that it becomes a
binding precedent precluding a later Panel from reaching a different conclusion on
a similar question of law.35
While the authority of res judicata is in principle attached only to the operative 13
part of the award (dispositif in French), the principle also applies to the reasoning
leading to the findings when reference thereto is required or useful to understand
the meaning, the nature or the effect of the award’s operative part.36
The final and binding effect of the award is subject the recourse available.37 However, 14
challenging the award in the Supreme Court is only admissible within the limited
scope of Art. 190(2) and (3) PILS.38 Challenges are not admitted where the parties
have no domicile, habitual residence or business establishment in Switzerland and

26 Art. R46(2), second sentence.

27 Kaufmann-Kohler/Bärtsch, p. 94; Kaufmann-Kohler/Rigozzi, para. 7.105; BGE 130 III 76 para.
3.1; cf. also Art. 188 PILS and Art. 383 ZPO. Awards by consent and other alternative options
for termination are also possible, cf. Art. R42.
28 Wirth, paras. 12, 14–17 at Art. 188.
29 BGE 130 III 755 para. 1.2.2 at the end; Rigozzi, JIDS 2010, p. 221; Kaufmann-Kohler/Bärtsch,
p. 94; Berger/Kellerhals para. 1689.
30 Art. 190(3) PILS; Rigozzi, JIDS 2010, pp. 221–222; Kaufmann-Kohler/Bärtsch, p. 94; critical:
Berger/Kellerhals, para. 1696.
31 Mavromati/Reeb, Art. R46, para. 38.
32 Mavromati/Reeb, Art. R46, paras. 39–40, with references to case law.
33 Art. R46(3), first sentence; cf. also Art. 190(1) PILS and Art. 387 ZPO.
34 The res judicata-effect applies only to final and partial awards, but not to interim awards (see,
e.g., Berger/Kellerhals, para. 1645; Girsberger/Voser, 2016, paras. 1447 and 1457).
35 Beloff/Netzle/Haas, para. E.3.148; Mavromati/Reeb, Art. R46, paras. 47–48.
36 Cf. BGE 125 III 8 para. 3b.
37 Art. R46(3), first sentence.
38 Regarding the competence of the Swiss Federal Supreme Court, see Art. 191 PILS. Cf. also Art.
R63 concerning the interpretation of CAS awards.
 1568 Arbitration in Switzerland – The Practitioner’s Guide

have expressly excluded all setting aside proceedings in the arbitration agreement.39
For this reason, international sporting federations having their seat in Switzerland
(e.g. ICC, FIFA and UEFA) may not request from their athletes to waive the right to
challenge CAS awards at the Swiss Federal Supreme Court.
15 The requirements and formalities of such challenge at the Swiss Federal Supreme
Court are governed by the Swiss civil procedure law, namely the BGG.40 For the start
of the (non-extendable) 30-day time limit within which an award may be challenged
in the Swiss Federal Supreme Court, the date of notification of the original of the
award is relevant.41 This wording was complemented for clarification reasons in
the course of the last CAS Code revision valid as of 1 January 2016.42 The Swiss
Federal Supreme Court has further clarified that this rule refers to the notification
of the reasoned award.43
16 Statistically, the chances of success of challenge are very low (i.e. clearly below
10%), namely because the Swiss Federal Supreme Court does not have the power
to review the merits of the award.44
17 As a principle, the filing of an action to set aside an award does not stay the
enforcement of the award.45 Nevertheless, it is always possible to request a stay by
seeking to obtain an order granting a suspensive effect to the challenge.46 However,
according to the very restrictive practice of the Supreme Court, such a stay is only
granted in exceptional circumstances.47

39 Art. R46(3), second sentence and Art. 192(1) PILS. Cf. BGE 133 III 235 para. 4.3.2.2 concern-
ing appeal proceedings, but not ordinary proceedings, stating that such renouncement is not
enforceable against an athlete.
40 See, e.g., Art. 42(1) BGG which establishes that the brief filed with the Supreme Court has to
be in one of the official languages of Switzerland (i.e., German, French, Italian).
41 Cf. Art. 100(1) BGG.
42 Cf. Art. 100(1) BGG which establishes the relevant deadline of 30 days for challenging the award;
for detail on the challenge proceedings before the Supreme Court, cf. the above commentary
of Arroyo (Chapter 2, Part II), paras. 6–54 at Art. 191 PILS.
43 BGer. 4A_304/2013 para. 2.1.
44 Mavromati/Reeb, Art. R46, para. 32.
45 Cf. Art. 103(1) BGG.
46 Rigozzi, JIDS 2010, p. 230.
47 Rigozzi, JIDS 2010, p. 231.
 1569

C. Special Provisions Applicable to the

Appeal Arbitration Procedure (Arts. R47 – R59)

Article R47: Appeal

An appeal against the decision of a federation, association or sports-related body
may be filed with CAS if the statutes or regulations of the said body so provide or
if the parties have concluded a specific arbitration agreement and if the Appellant
has exhausted the legal remedies available to him prior to the appeal, in accordance
with the statutes or regulations of that body.
An appeal may be filed with CAS against an award rendered by CAS acting as a
first instance tribunal if such appeal has been expressly provided by the rules of
the federation or sports-body concerned.

I PURPOSE OF THE PROVISION

Article R47 is the first provision of Section C of the CAS arbitration rules, entitled 1
“Special Provisions Applicable to the Appeal Arbitration Procedure”. Its main
purpose is to set out the scope of application of the CAS Appeal Arbitration Procedure
(hereinafter also referred to as “the [CAS] appeals procedure”). In commenting this
provision, it is useful to start by considering the genesis of Art. R47 et seqq. of the
Code (II.) and outlining the main features of the CAS appeals procedure (III.). The
scope of application of Art. R47 (IV.), as well as the threshold issues of the require-
ment of prior exhaustion of legal remedies (V.) and disputes on CAS jurisdiction
(VI.) should then be addressed in some detail. The specific case of appeals against
awards rendered by the CAS acting as a first instance tribunal in accordance with
Art. R47(2) of the Code also deserves to be discussed briefly (VII.).

II HISTORICAL BACKGROUND

Originally, the CAS arbitration rules did not contain a specific set of provisions regard- 2
ing appeals proceedings. In 1991, the CAS published its first Guide to Arbitration,
which contained several model arbitration clauses, including the following clause to
be inserted in sports federations’ statutes or regulations: “Any dispute arising from
the present Statutes and Regulations of the […] Federation which cannot be settled
amicably shall be settled finally by a tribunal composed in accordance with the
Statute and Regulations of the Court of Arbitration for Sport to the exclusion of any
recourse to the ordinary courts […]”.1 The Fédération équestre internationale (FEI)
was the first sports-governing body to include a clause of this type in its statutes,
with the almost immediate result that a significant number of FEI decisions were
appealed before the CAS.
Thus, it was probably no coincidence that the first CAS award to be brought before 3
the Swiss Federal Supreme Court in setting aside proceedings concerned an FEI

1 Reeb, CAS Digest III, p. xxix.

 1570 Arbitration in Switzerland – The Practitioner’s Guide

dispute.2 In this decision, which has since become known as the Gundel case, the
Supreme Court acknowledged (i) that the decisions of an international federation
incorporated in Switzerland could be validly made subject to arbitration (in lieu of
being submitted to the courts at the seat of the relevant federation, as provided in
Art. 75 CC) by the inclusion of a clause to that effect in the federation’s statutes,
and (albeit with some reservations) (ii) that CAS arbitration, under the then applic-
able rules, was, as a matter of principle, sufficiently independent from the sports
federations to qualify as “true arbitration” under Swiss law.3
4 The combined effect of Gundel and of the increasing number of CAS proceedings
(due to the fact that many other important sports-governing bodies had in the
meantime followed the FEI’s example by including a CAS arbitration clause in their
regulations), induced the IOC to launch a revision of the CAS arbitration rules. The
so-called “1994 reform”, which resulted in the enactment of what is now known as
the CAS Code, was thus the perfect opportunity not only to address the reservations
expressed by the Swiss Supreme Court in Gundel, but also to enact a specific set
of rules to govern arbitrations arising from appeals against the decisions issued by
sports-governing bodies, i.e., Arts. R47-R70 of the CAS Code. This set of rules, which
are also commonly referred to as the “appeal arbitration rules”, or “CAS appeals
proceedings”, turned out to be the CAS’s greatest success. According to the most
recent statistics, more than 80% of CAS cases are conducted as appeals proceedings
pursuant to Art. R47 et seqq. of the Code.4
5 The wording of Art. R47 remained unchanged until 2004, when the scope of ap-
plication of the appeals procedure was clarified by replacing the words “decision of
a disciplinary tribunal or similar body of a federation, association or sports body”
with the current phrase “decision of a federation, association or sports-related body”,
thus stating unambiguously that CAS appeals proceedings are available to challenge
all kinds of decisions issued by sports-governing bodies, and not only disciplinary
decisions. In practice, however, disciplinary disputes still count for the vast majority
of cases heard by the CAS under the appeals procedure.
6 By the same token, a second paragraph was added to Art. R47 in the 2004 revision to
take into account the practice that had developed in Australia, where anti-doping and
selection disputes were heard by a local branch of the CAS in the first instance, with
a possibility to appeal to the “international” CAS in Lausanne. Today, the provision
according to which “an appeal may be filed with the CAS against an award rendered
by the CAS acting as a first instance tribunal” plays an important role, in particular
as it allows the parties to anti-doping disputes in the United States to challenge
before the CAS the awards rendered by the so-called “North American Court of
Arbitration for Sport”, under the auspices of the American Arbitration Association.5

2 BGer. 4P.217/1992 (Gundel v. FEI), BGE 119 II 271, ASA Bull. 1993, p. 398; translated in: Mealey’s
I.A.R., Issue 10, October 1993, p. 12, with a comment by Jan Paulsson.
3 Cf. the Supreme Court’s decision in Gundel, BGE 119 II 280 para. 3.b, where the Court noted,
however, that there was room for improvement with respect the then existing structural and
financial links between the CAS and the International Olympic Committee (IOC).
4 According to the latest available statistics, there were, up to 31 December 2016, 790 ordinary
arbitrations and 4’053 appeals arbitrations registered in the CAS roll.
5 Weston, GA J. Int’l & Comp. L. 2009, pp. 106–109 (an electronic version of the paper is available
at: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1524323>). For a recent case, see,
e.g. CAS 2016/A/4371, Robert Lea v. USADA, Award of 4 May 2016. Cf. also below, para. 46.
Article R47 CAS Code – Rigozzi/Hasler 1571

III SALIENT FEATURES OF THE CAS APPEALS PROCEDURE

The central characteristic of the CAS appeals procedure is its expedited nature. In 7
appeals proceedings, each procedural step is to be accomplished within a specified
time limit, which should allow the CAS to issue the “operative part of the award
[…] within three months after the transfer of the file to the Panel”.6 According to
the rules, the constitution of the panel should not take longer than a month: the
appellant appoints an arbitrator in the statement of appeal;7 the respondent is
then required to appoint an arbitrator within a time limit of ten days following the
notification of the statement of appeal,8 failing which the Division President “shall
make the appointment”;9 and finally, the chair will be appointed directly by the
Division President, without the parties being consulted, precisely in order to avoid
delays.10 The rules further provide that the exchange of written submissions should be
completed approximately within a month from the filing of the statement of appeal:
the appeal brief shall be filed within ten days from the expiry of the time limit for
appeal and the Respondent’s answer shall be filed within twenty days from receipt
of the appeal brief.11 All these time limits can however be (and often are) extended
upon the request of either or both parties.12 In practice, the main delays occur after
the exchange of written submissions, as in the vast majority of cases the Panel will
hold a hearing,13 and finding a suitable date for the CAS, the members of the panel
and the parties is not an easy task. Even though the CAS increasingly tends to ignore
the parties’ (and/or their attorney’s) constraints in terms of availability, the fact
remains that the most experienced arbitrators tend to be very busy people and it
is thus highly unlikely that a hearing can be scheduled right away. The arbitrators’
busy schedules also have an impact on the timing of deliberations and the drafting
of the award.14 Despite the increasingly frequent appointment of ad hoc clerks to
assist CAS panels,15 in the vast majority of cases, the Division President will have to
grant one or more extensions of the time limit for rendering the award.16 Inevitably,

6 Art. R59(5).
7 Cf. Art. R48(1).
8 In CAS arbitrations, the file is transferred to the arbitrators once (i) the panel is constituted and
confirmed by the Division President, (ii) the CAS Court Office has issued the so-called “Notice
of Formation” of the panel and, (iii) if applicable, the requested advance of costs has been paid
(cf. Art. R40.3). The constitution of the panel can take longer when several respondents have to
agree on a joint appointment and thus need more time to conduct the necessary consultations.
9 Cf. Art. R53.
10 Paradoxically, however, the appointment of the chair and the confirmation of the panel by the
Division President often take significantly longer than the other steps in the constitution of the
panel.
11 Cf. Arts. R51(1) and R55(1).
12 Cf. Art. R32(2).
13 As there will be no further exchange of submissions (cf. Art. R56(1) CAS Code), the panel will
generally be quite reluctant to decide that “it deems itself to be sufficiently well informed […]
not to hold a hearing” (cf. Art. R57(2)).
14 One may wonder whether there have been abuses of the possibility to ask for extensions of the
time limit to render the award, as the ICAS has recently decided to amend Art. R35 in order
to allow for the removal of an arbitrator not only when he or she refuses to, or is prevented
from, carrying out his or her duties or if he or she fails to fulfill such duties pursuant to the
CAS Code, but also – this being the new provision – when he or she does not do so “within a
reasonable time”.
15 Cf. Art. R54(4).
16 Cf. Art. R59(5).
 1572 Arbitration in Switzerland – The Practitioner’s Guide

the fact that the awards must also be scrutinized by the Secretary General17 further
contributes to the delays.
8 Originally, CAS appeals proceedings were meant to be totally free of charge. In 2004,
the scope of the “free of charge” principle was limited to appeals against decisions
that were both disciplinary and international in nature. In 2012, this scope was
further restricted by the qualification that proceedings were to be free of charge only
if the disciplinary decision under challenge had been rendered by an “international
federation”.18 The 2013 revisions to the Code have added yet another caveat to this
principle, by providing that although as a rule appeals against disciplinary decisions
rendered by international sports federations will remain free of charge, “[i]f the
circumstances so warrant” the President of the Appeals Division may impose the
payment of the arbitration costs on the parties. As last amended in this respect in
2013, the Code provides two examples of circumstances where the President might
exercise this discretion, i.e. the “predominant economic nature of a disciplinary
case” and where the “federation which has rendered the challenged decision is not
a signatory to the Agreement constituting the ICAS”.19
9 Accordingly, in cases where the President deems that this is “warranted” and in all
other cases which do not involve an appeal against a disciplinary decision of an
international sports federation, the parties will have to pay an advance on costs
before the arbitration is actually initiated. As the amount of the advance can be
substantial,20 it is submitted that, as discussed under Art. R64, the availability of a
legal aid system is of paramount importance. Absent such a system, indigent athletes,
who did not voluntarily agree to CAS arbitration, could validly claim that they are
deprived of their fundamental right of access to justice.21
10 Another issue is whether CAS appeals proceedings are confidential. Art. R59(6)
specifically allows for the publication of the award and/or the issuance of a press
release only if the parties do not agree otherwise, and its 2013 version clarifies that
“[i]n any event, the other elements of the case record shall remain confidential”.
This is also consistent with the principle that the hearings are held “in camera unless
the parties agree otherwise”22 and the general confidentiality obligation to which all
CAS arbitrators are subjected.23 Accordingly, it is submitted that the first sentence of
Art. R43 – which provides that “[t]he parties, the arbitrators and CAS undertake not
to disclose to any third party any facts or other information relating to the dispute

17 Cf. Art. R59(2).

18 Cf. Art. R65.
19 Cf. Art. R65.4. This Agreement provides for the financing of the ICAS by the various constituents
of the Olympic Movement, but it is not known which federations did sign it.
20 Cf. Art. R64.2.
21 As noted in the previous edition of this commentary (Rigozzi/Hasler, at Art. R47, para. 9), the
increasing professionalization of athletes’ representation could mean that, instead of simply
dropping their cases, as they would in the past, indigent athletes were likely to start bringing
their actions before the state courts by arguing, in response to any jurisdictional challenge, that
the arbitration clause contained in the sports regulations was inoperative for costs reasons. It
remains to be seen whether the legal aid system based on the recently adopted CAS Legal Aid
Guidelines (September 2013), which are examined in the commentary to Art. R64 below, will
be capable of avoiding such situations.
22 Art. R57(2) at the end.
23 Art. S19(1) of the CAS Code.
Article R47 CAS Code – Rigozzi/Hasler 1573

or the proceedings without the permission of CAS”24 – is also applicable to CAS

appeals proceedings. In our opinion, the same obligation should apply to the CAS
as the arbitration institution, even if there is no express provision to this effect in
the CAS Code.25 Thus, we believe the CAS should refrain, for instance, from issuing
pre-award press releases without the consent of the parties, even if the 2017 addition
of Art. R52(3) now technically allows that.26

IV THE SCOPE OF APPLICATION OF THE CAS APPEALS PROCEDURE

An arbitration shall be conducted according to the CAS appeals procedure only if 11

there exists a CAS arbitration agreement covering challenges against the relevant
sports-governing body’s decisions (A.) and if the dispute at issue actually originates
from such a decision (B.).

A Arbitration Agreement to Challenge Sports-Governing Bodies’

Decisions

Most of the awards rendered under the CAS appeals procedure contain, in their 12
section dedicated to the legal analysis of the case, an introductory and relatively
“standardized” paragraph setting out the principle that, in accordance with the word-
ing of Art. R47 and well-established CAS case law, “for the CAS to have jurisdiction
in a matter it is necessary that either [(i)] the parties have expressly agreed to it
or [(ii)] the statutes or regulations of the body issuing the decision provide for an
appeal before the CAS”.27 The second scenario is, obviously, the more frequent one
in practice, and we will therefore discuss it first.

1 Arbitration Clause in the Relevant Sports Regulations

According to Art. R47(1), an “appeal against the decision of a federation, association 13

or sports-related body may be filed with CAS if the statutes or regulations of the said
body so provide”. While this wording refers to the arbitration clause contained in
the statutes or regulations of the governing body that actually issued the decision
appealed against (a.), the agreement to arbitrate can also arise from an arbitration
clause contained in the regulations of another sports governing body (b.).

24 The breach of this obligation can result in a claim for damages and, for the arbitrators only, in
the sanctions provided for by Art. S19(2) of the CAS Code.
25 By way of comparison, the Swiss Rules do provide that the same general undertaking as to
the confidentiality of the proceedings also applies to the arbitral institution and its governing
bodies and staff (cf. Art. 44 Swiss Rules).
26 This strict approach should apply irrespective of whether the case is a high profile matter or
not and regardless of any pressure by the medias and related interests. An exception should be
made only if the parties themselves have already breached their obligation of confidentiality
by “leaking” information to the media and any such leaks require a clarification by the CAS.
In any event the parties must be consulted first, in particular to take into account the interests
of the party that did not breach its confidentiality obligation and/or is affected by the leaks.
27 This wording is quoted from CAS 2009/A/1996, Riza v. Trabzonspor & TFF, Award on Jurisdiction
of 10 June 2010, para. 65, confirmed by the Swiss Supreme Court (see BGer. 4A_404/2010).
 1574 Arbitration in Switzerland – The Practitioner’s Guide

a Regulations of the Sports-Governing Body that Issued the Decision under

Appeal

14 The arbitration agreement does not necessarily have to make an express reference
to appealable “decision(s)” or to the “CAS appeals procedure”. An arbitration
clause referring “any dispute” to the CAS is sufficiently broad to cover disputes
concerning decisions rendered by an adjudicative or any other decision-making
instance of the sports-governing body that has enacted the regulations containing
such clause. That said, a provision merely “recognizing” the CAS is not sufficient to
assert CAS jurisdiction under Art. R47 CAS Code,28 unless, as the FIFA Statutes do,
it also prohibits all parties subject to the regulations from bringing disputes before
the state courts.29 In practice, in the vast majority of cases CAS jurisdiction is based
on either (i) a special arbitration clause contained in the regulations governing the
merits of the dispute (for instance, in the anti-doping regulations that the sports-
governing bodies must enact to implement the WADA Code)30 or (ii) a more general
arbitration clause (often contained in the statutes or in the regulations concerning
a federation’s internal proceedings).
15 For instance, the Doping Control Rules of the International Swimming Federation
(FINA) provide that “[i]n cases arising from participation in an International
Competition or in cases involving International- Level Athletes, the decision may be
appealed exclusively to CAS in accordance with the provisions applicable before such
court”.31 This clause only applies to decisions made under the Doping Control Rules
and it prevails, as a lex specialis and in as far as such decisions are concerned, over
the general arbitration clause contained in the FINA Constitution, which stipulates
that “[d]isputes between FINA and any of its Members or members of Members,
individual members of Members or between Members of FINA that are not resolved
by a FINA Bureau decision may be referred for arbitration by either of the involved
parties to the Court of Arbitration for Sports (CAS), Lausanne […]”.32 In case of
discrepancy, for instance, with respect to the time limit for appeal or the parties
authorized to bring such an appeal, the specific clause will prevail over the general
one. Thus, in our example, WADA will be allowed to appeal against a decision issued

28 CAS 2009/A/1996, Riza v. Trabzonspor & TFF, Award on Jurisdiction of 10 June 2010, para.
73. All national football federations are required to include such a “recognition clause” in
their statutes pursuant to Art. 59(1) and (3) of the FIFA Statutes. Cf., e.g., Art. 10 (as it was
then) of the Statutes of the Saudi Arabian Football Federation (SAFF) according to which the
clubs, in their capacity as members of the SAFF, “undertake to recognize the dispute resolution
chamber recognized by the [SAFF] and to recognize the Court of Arbitration for Sport (CAS)
in Lausanne” (CAS 2011/A/2472, Al- Wehda v. SAFF, Award of 12 August 2011, para. 46).
29 Art. 59(2) FIFA Statutes.
30 Like all other provisions of the World Anti-Doping Code, Art. 13.2.3 of the WADA Code does not
have direct effect (Adolphsen, CAS Bull. 2010/1, p. 3 and passim). Unless properly incorporated
in the relevant sports regulations, Art. 13.2.3 WADC cannot constitute in and of itself a valid
arbitration agreement (cf. CAS 2006/A/1190, WADA v. Pakistan Cricket Board & Akhtar & Asif,
Award on Jurisdiction of 28 June 2006, where the CAS dismissed an appeal by WADA in a
case where an international federation had failed to meet its obligation to incorporate a rule
corresponding to Art. 13.2.3 WADC in its own regulations).
31 FINA Doping Control Rules, available at <https://www.fina.org/content/doping-control-
rules>, DC 13.2.1.
32 FINA Constitution, available at <https://www.fina.org/content/constitution>, C26
– Arbitration.
Article R47 CAS Code – Rigozzi/Hasler 1575

by the FINA Doping Panel even if it is not a “Member of FINA” within the meaning
of the arbitration clause contained in the FINA Constitution.

b Regulations of Another Sports-Governing Body

According to the well-established case law of the Swiss Federal Supreme Court 16
concerning so-called “specific” arbitration agreements by reference,33 it is generally
accepted that a provision in the regulations of the sports-governing body that has
issued the decision under appeal specifically referring to a CAS arbitration clause
contained in the regulations of another governing body is sufficient to establish CAS
jurisdiction: in such a case, the arbitration clause is deemed to have been validly
incorporated in the regulations of the governing body that issued the decision.
CAS jurisdiction to hear an appeal is more controversial when the regulations of 17
the sports-governing body that issued the decision under appeal do not contain (an
arbitration agreement or) a specific reference to an arbitration agreement contained
in the regulations of another governing body, but merely refer to the regulations of
another sports-governing body (which contain a CAS arbitration agreement in global
terms). According to the Swiss Supreme Court’s case law, the CAS should assert
jurisdiction only if, in light of the circumstances of the case, the global reference to
the regulations should be understood as an acceptance of the arbitration clause they
contain. That said, when the applicable regulations specify that the athletes are also
“bound” by the regulations of the other governing body, the Supreme Court has held
(in the Dodô case, where the reference was to FIFA’s regulations) that, consistent with
the “liberal approach” followed in its case law dealing with arbitration agreements
concluded by reference, a “general reference to the FIFA Rules […] is sufficient in
order for the jurisdiction of the CAS to be established in the light of R47 of the Code”.34
The fact that in the Dodô case the Swiss Supreme Court stated that its case law is 18
“to the effect that a global reference to an arbitration clause contained in [a Federa-
tion’s statutes] is valid and binding”35 should not mean that any dispute involving
parties somehow bound by the statutes of an international federation containing a
CAS arbitration clause can be brought before the CAS. In the Dodô case this was so
because the FIFA Statutes explicitly provide for CAS arbitration with respect to the
kind of doping dispute that had to be decided. Indeed, Art. 58(5) (then Art. 63(6))
of the FIFA Statutes provides that “WADA is entitled to appeal to CAS against any
internally final and binding doping-related decision passed in particular by the
confederations, member associations [i.e. the national federations] or leagues”.
The validity of the global reference was particularly clear in that case, as it was a

33 Cf. Müller/Riske, above commentary on Art. 178 PILS (Chapter 2, Part II), paras. 61–66.
34 Cf. BGer. 4A_460/2008 para. 6.2, ASA Bull. 2009, pp. 544–545; translated in Swiss Int’l
Arb.L.Rep 2009, pp. 52–53 (referring, inter alia, to BGE 133 III 235 para. 4.3.2.3, where the
Supreme Court stated that its case law with respect to arbitration agreements by reference is
“based on a liberal approach and a bias [in favor of] formal validity”). In this case, Art. 1(2)
of the [Brazilian FA]’s Statutes provide[d], inter alia, that the athletes affiliated to [it] must
comply with the FIFA Regulations (cf. CAS 2007/A/1370 & 1376, FIFA& WADA v. CBF, STJD &
Dodô, Award of 11 September 2008, para. 72). See also CAS 2014/A/3474, Clube de Regatas do
Flamengo v. CBF & STJD, Award of 5 October 2015, paras. 83–110.
35 BGer. 4A_460/2008 para. 6.2, ASA Bull. 2009, pp. 544–545; translated in Swiss Int’l Arb.L.Rep
2009, pp. 52–53.
 1576 Arbitration in Switzerland – The Practitioner’s Guide

doping dispute, and no athlete can reasonably contend that he or she could ignore
the existence of the arbitration clause in the regulations referred to.36
19 By way of contrast, the Supreme Court has upheld the CAS’s view that Art. 63(1) of
the FIFA Statutes (now Art. 58(1)), according to which “appeals against final deci-
sions passed by FIFA’s legal bodies and against decisions passed by confederations,
member associations or leagues shall be lodged with CAS […]” did not constitute
an “arbitration clause per se for national disputes”.37 The fact that Art. 59 (then
Art. 64) of the FIFA Statutes expressly requires that all national federations insert an
arbitration clause in their regulations38 obviously rules out that the arbitration agree-
ment can be concluded just through a general reference to the FIFA Statutes (as the
latter specifically require an arbitration clause at the level of national regulations). A
national federation’s failure to comply with the obligation set out in the FIFA Statutes
is likely to constitute a violation of those Statutes, but cannot automatically create
an arbitration agreement by reference.39 The so-called pro-arbitration bias of the
Swiss Supreme Court’s case law does not allow to fill the [jurisdictional gap[s]] of
the applicable regulations, even when such gaps would create a denial of justice.40

c Scope of the Arbitration Agreement Contained in Sports Regulations

20 According to Art. R47 CAS Code, an appeal may be filed with CAS (in other words,
the CAS has jurisdiction to hear an appeal) against a decision of a sports-governing
body “if the statutes or regulations of the said body so provide”. This means that
the sports-governing bodies are free to determine which kinds of decisions can be
appealed to the CAS. The most notable example is Art. 58(3) of the FIFA Statutes,
which makes it clear that “CAS […] does not deal with appeals arising from: (a)
violations of the Laws of the Game [and] (b) suspensions of up to four matches or up
to three months (with the exception of doping decisions) […]”. Decisions explicitly
excluded from CAS jurisdiction ratione materiae cannot be reviewed by the CAS.
21 The arbitration agreement can also determine who is entitled to file an appeal. Again,
the answer should be sought in the applicable regulations. For instance, all the

36 Indeed, the jurisdiction of the CAS in doping matters concerning international competitions
and/or international level athletes is mandatory for all signatories of the WADA Code (Art.
13.2.1 WADC) and is also undoubtedly one of the “principles of the [WADA] Code” that the
States parties to UNESCO’s International Convention against Doping in Sport (the UNESCO
Convention, SR 0.812.122.2) have undertaken to “commit to” in accordance with Art. 4 of the
Convention (cf. also BGE 129 III 445 para. 3.3.3.3).
37 CAS 2009/A/1996, Riza v. Trabzonspor & TFF, Award on Jurisdiction of 10 June 2010, para. 76.
38 According to this provision, the clause to be inserted must “stipulate[e] that it is prohibited
to take disputes in the Association or disputes affecting Leagues, members of Leagues, clubs,
members of clubs, Players, Officials and other Association Officials to ordinary courts of law,
unless the FIFA regulations or binding legal provisions specifically provide for or stipulate
recourse to ordinary courts of law” and that “instead” such disputes “shall be taken to a duly
constituted arbitration tribunal recognised under the rules of the Association or Confederation
or to CAS”.
39 Of course, the prohibition from resorting to state courts would be equally inoperative, and the
decisions made by the national federation should be challenged according to the relevant provi-
sions of the applicable national law. The fact that the local legislation provides that a specific
sport decision cannot be appealed in the state courts, is not sufficient, per se, to establish CAS
jurisdiction.
40 CAS 2008/O/1694, P. v. BFU, Award of 5 June 2009, para. 4.23.
Article R47 CAS Code – Rigozzi/Hasler 1577

anti-doping regulations based on the WADA Code contain a provision (implementing

Art. 13.2.3 WADC) setting out an exhaustive list of who may be considered as a
party and identifying who has the right to appeal to the CAS – namely

“(a) the Athlete or other Person who is the subject of the decision being
appealed; (b) the other party to the case in which the decision was rendered
[i.e. the relevant federation or anti-doping agency]; (c) the relevant Inter-
national Federation [if the proceedings were dealt with at national level]; (d)
the National Anti-Doping Organization of the Person’s country of residence
or countries where the Person is a national or license holder [if the proceed-
ings were dealt with by an international or national federation]; (e) the
International Olympic Committee or International Paralympic Committee, as
applicable, where the decision may have an effect in relation to the Olympic
Games or Paralympic Games, including decisions affecting eligibility for the
Olympic Games or Paralympic Games; and (f) WADA”.
The athlete’s competitors are not listed and can thus not bring an appeal to CAS,
even if they have a manifest interest in the dispute.41 Thus, if the silver medallist
files an appeal against the decision of the IOC not to disqualify the gold medallist
despite the presence of a prohibited substance in his body, the CAS will not be in
a position to hear the appeal.
Even if the terminology is often confusing,42 the issue of the scope of the arbitration 22
agreement ratione personae must be distinguished from that of standing to appeal (lo-
cus standi; also referred to as standing to sue (légitimation active; Aktivlegitimation),
or where relevant, standing to be sued (légitimation passive; Passivlegitimation)).43
For instance, Art. 62(2) of the UEFA Statutes provides that “only parties directly
affected by a decision may appeal to the CAS”.44 All the clubs participating in the
UEFA Champions League are bound by the CAS arbitration agreement contained
in the UEFA Statutes.45 Accordingly, the CAS will have jurisdiction to hear appeals
brought against UEFA decisions by any of the participant clubs, but it will dismiss

41 Cf., e.g., CAS 2004/A/748, ROC & Ekimov v. IOC, USOC & Hamilton, Award of 27 June 2006,
para. 119.
42 Cf., e.g., CAS 2004/A/748, ROC & Ekimov v. IOC, USOC & Hamilton, Award of 27 June 2006,
para. 119, stating that the “list of persons or organizations having standing to appeal ‘does
not include Athletes, or their federations, who might benefit from having another competitor
disqualified’.”
43 Cf., e.g., CAS 2013/A/3140, A. v. Club Atlético de Madrid SAD & RFEF & FIFA, Award of 10
October 2013, para. 8.3: “[i]n principle, standing to sue or standing to appeal is recognized
if a person appealing against a certain decision has an interest worthy of protection, i.e. a
sufficient interest in the matter being appealed” (cf. CAS 2008/A/1674; CAS 2010/A/2354).
In other words, an appellant has to demonstrate that he or she is sufficiently affected by the
appealed decision and has a tangible interest, of financial or sporting nature at stake” (with
reference to cf. De La Rochefoucauld, CAS Bull. 2011/1, p. 13).
44 The arbitration agreement with respect to appeals against FIFA decisions does not contain any
limitation as to the parties who can bring an appeal. CAS jurisprudence considers that there is
a presumption that the standing to appeal to CAS is the same as the standing to appeal in the
lower instances: cf., e.g., CAS 2008/A/1658, SC Fotbal Club Timisoara v. FIFA & RFF, Award of
13 July 2009, para. 111, reported in CAS Bull. 2010/1, pp. 99–100 applying per analogiam Art.
126 (now Art. 119) of the FIFA Disciplinary Code, which allows internal appeals to be filed
with the FIFA Appeal Committee by “anyone who is affected and has an interest justifying
amendment or cancellation of [a] decision [issued by a lower FIFA internal instance]”.
45 Art. 83, Regulations of the UEFA Champions League, 2015/16 Season.
 1578 Arbitration in Switzerland – The Practitioner’s Guide

the appeal for lack of standing to appeal if the appellant club is not directly affected
by the decision at issue.46

2 Specific Arbitration Agreement

23 In the absence of an arbitration clause in the relevant sports regulations, the CAS
has jurisdiction to hear an appeal against a decision pursuant to Art. R47 et seqq. of
the Code only if “the parties have concluded a specific arbitration agreement”. The
instances in which a sports-governing body has explicitly accepted CAS jurisdiction
on such an ad hoc basis are rare in disciplinary matters, as a governing body will
be reluctant to allow an individual party (athlete or club) to arbitrate despite the
absence of an arbitration clause in its regulations, knowing that other parties will
then ask for a similar treatment.
24 On the other hand, it is increasingly the case that, to reduce the risk of unnecessary
disputes about jurisdiction, sports-governing bodies request all athletes to sign a
specific arbitration agreement as a precondition for participating in the sport (for
instance, in a so-called “licence”)47 or in a given event or competition (in particular

46 “The ‘directly affected’ standard contained in the UEFA Statutes is met when the association
disposes in its measure/decision not only of the rights of the addressee [of the measure/decision]
but also of those of [a] third party” (CAS 2008/A/1583, Benfica v. UEFA & FC Porto & CAS
2008/A/1584, Vitória Guimarães v. UEFA & FC Porto, Award of 15 July 2008, para. 31, and
the awards referred therein, CAS 2002/O/373; TAS 2006/A/1082–1104; CAS 2007/A/1278 &
1279). In this respect, CAS has made it clear that: (i) where a third party is affected because it
is a competitor of the addressee of the measure/decision – unless otherwise provided by the
association’s rules and regulations – the third party does not have a right of appeal; and (ii)
effects that ensue only from competition are only indirect consequences of the measure/decision
(cf. again CAS 2008/A/1583, Benfica v. UEFA & FC Porto & CAS 2008/A/1584, Vitória Guimarães
v. UEFA & FC Porto, Award of 15 July 2008, para. 31). According to the latest CAS case law, the
“directly affected” standard is not met when the club merely has a “unique position” compared
to other competitors (for example because it finished runner up behind a club that has been
disqualified). The Club must show that it would automatically replace the disqualified club in
the relevant competition (CAS 2015/A/4151, Panathinaikos FC v. UEFA & Olympiakos FC, Award
of 26 November 2015, paras. 134–149). Furthermore, the CAS has held that the fact that a club
or a national federation is the victim of the wrongful conduct by another party does not in and
of itself confer standing to appeal, even if this means that UEFA’s alleged laxity in prosecuting
misconduct would remain unchecked by CAS (CAS 2015/A/3874). As noted in the previous
edition of this commentary (Rigozzi/Hasler (2013), at Art. R47, para. 22, footnote 42), whether
standing to appeal is a condition for admissibility or an issue pertaining to the merits of the
dispute was long a controversial question in the CAS case law (cf. also De La Rochefoucauld,
CAS Bull. 2011/1, p. 13). According to the more recent jurisprudence and in line with the Swiss
Federal Supreme Court’s case law, standing to appeal is an issue pertaining to the merits (cf.,
e.g., CAS 2012/A/2906, Alain Geiger v. EFA & Al Masry Club, Award of 12 February 2013, para.
78, with reference to BGer. 4A_79/2010; CAS 2013/A/3140, A. v. Club Atlético de Madrid SAD
& RFEF & FIFA, Award of 10 October 2013, paras. 8.09–8.15; CAS 2013/A/3417, FC Metz v. NK
Nafta Lendava, Award of 13 August 2014, para. 57, both with reference to BGE 128 III 50).
47 For instance, in order to participate in competitions organized or supervised by the UCI,
each professional rider must sign a “UCI Licence” prepared by his national federation, which
contains inter alia the following wording: “I hereby undertake to respect the constitution and
regulations of the International Cycling Union, its continental confederations and its national
federations. […] I accept the Court of Arbitration for Sport (CAS) as the sole competent body for
appeals in [disciplinary cases] and under the conditions set out in the regulations” (UCI Cycling
Regulations, available at <http://www.uci.ch>, Part I: General Organisation of Cycling as a
Sport, Art. 1.1.023).
Article R47 CAS Code – Rigozzi/Hasler 1579

in what is often referred to as an “entry form”).48 The signing of such an undertaking

clearly constitutes a valid arbitration agreement.49

3 The Validity of Arbitration Agreements in Sports

As the arbitration agreement is included in the sports regulations or in a written 25

undertaking, the requirement of written form within the meaning of Art. 178(1)
PILS is not problematic in CAS appeals arbitration.50
The Swiss Federal Supreme Court has held that in case of a global reference to 26
another sports regulations containing an arbitration clause, the problem moves
from the issue of form to that of consent, and must be resolved according to the
“principle of confidence” (“principe de la confiance”), taking into account all relevant
circumstances.51 As already discussed, the Supreme Court has taken a “liberal ap-
proach”, meaning that it will uphold CAS jurisdiction when the arbitration clause
is not unusual and provided that it is clearly meant to govern the dispute at hand.
In a recent decision, the Court has held that CAS arbitration agreements must be
considered as “usual within the branch of sport” (“Branchentypisch”), thus practically
establishing a presumption in favor of the validity of CAS arbitration agreements
by reference in sports matters.52
The main issue in terms of validity arises from the undisputable fact that arbitration 27
agreements contained in sports regulations or subscribed as a precondition for
participating in specific competitions are not consensual in nature. An athlete has no
choice but to accept the sports regulations (containing the arbitration agreement) or
to subscribe to a specific arbitration agreement (whether by requesting a licence or
signing an entry form) if he or she wants to participate in the sport or in a tourna-
ment or other event. However, to the extent that the contemplated procedure and
the arbitration institution overseeing it are sufficiently independent to qualify as a
“true arbitration”,53 such lack of consent does not per se invalidate the arbitration
agreement. Thus, the Swiss Supreme Court has felt compelled to note that given the
independence of the CAS, a CAS arbitration agreement contained in a document
that a tennis player must sign in order to participate in ATP events is not invalid
despite the lack of consent. According to the Supreme Court, this solution “obeys a
certain logic […] favouring the prompt settlement of disputes, particularly in sports-
related matters, by specialised arbitral tribunals presenting sufficient guarantees of
independence and impartiality”.54

48 Thus, when entering the Olympic Games, athletes must sign a form including the following
wording: “I also agree that any dispute arising on the occasion of or in connection with my
participation in the Olympic Games shall be submitted exclusively to the Court of Arbitration
for Sport, in accordance with the Code of Sports-Related Arbitration” (cf. by-law 6 to Rule 45 of
the Olympic Charter).
49 CAS 2010/A/2070, Antidoping Schweiz v. Ullrich, Award of 30 November 2011, paras. 38–39 (a
case decided by reference to the (now repealed) Concordat, which set forth stricter requirements
than the PILS with respect to the formal validity of arbitration agreements).
50 For a commentary on Art. 178 PILS, see Müller/Riske, Chapter 2 (Part II) above, especially
paras. 61–66.
51 BGer. 4C.44/1996 para. 3c, reproduced in: CAS Digest I, pp. 589–590.
52 BGer. 4A_428/2011 para. 3.2.3.
53 Cf. above, para. 3.
54 BGE 133 III 235 (Cañas v. ATP) para. 4.3.2.3, English translation in Swiss Int’l Arb.L.Rep 2007,
pp. 65–99, referring, as to the independence of the CAS, to BGE 129 III 445 (Lazutina) para.
 1580 Arbitration in Switzerland – The Practitioner’s Guide

28 Arbitrability is generally unproblematic in CAS appeals arbitrations, since both

employment and disciplinary disputes are deemed to involve matters “of financial
interest” within the meaning of Art. 177(1) PILS.55

B The Concept of “Decision”

29 In defining the concept of decision within the meaning of Art. R47, the CAS has
relied upon the relevant principles of Swiss administrative law.56 The form and/or
denomination of the challenged act are not determinative,57 what matters is whether
the latter contains a ruling affecting the parties’ legal positions.58 For instance, a
simple letter sent by an employee of a sports governing body qualifies as a decision
within the meaning of Art. R47 CAS Code if it is aimed at “resolv[ing a legal situation]
in an obligatory and constraining manner”.59
30 The fact that the challenged ruling is not reasoned is (subject to a contrary provision
in the applicable rules)60 of no consequence with respect to its characterization as
a “decision” within the meaning of Art. R47.61 Since CAS appeals entail a de novo
review of the case, the reasons for the challenged ruling are not decisive for the

3.3.3.3. This view, however, is not uncontroversial, as shown, for instance, by the critical
views of Prof. Andreas Bucher (cf. in particular his commentary of Chapter 12 PILS, available
at http://www.andreasbucher-law.ch/NewFlash/bis.html, at Art. 178 PILS, pp. 15 (update
dated 4 October 2016)).
55 BGer. 4P.230/2000 (Roberts c. FIBA), ASA Bull. 2001, p. 523. Cf. also, e.g., TAS 2013/A/3250,
Belgian Cycling Company v. Philippe Gilbert, Award of 25 February 2014, paras. 10.9–10.15,
recalling that under the Swiss Supreme Court’s case law, the sole exception to the arbitrability
of employment disputes (and other disputes involving matters of “financial interest”) in inter-
national arbitration is where the applicable foreign law provides for the exclusive jurisdiction
of the state courts over the dispute and the relevant provision(s) pertain(s) to public policy
within the meaning of Art. 190(2)(e) PILS (cf. BGer. 4A_654/2011 para. 3.4).
56 Cf., e.g., CAS 2007/A/1396&1402, WADA & UCI v. Valverde & RFEC, Award of 31 May 2010,
para. 6.14, quoting CAS 2009/A/1869, FC La Chaux-de-Fonds v. SFL, para. 59.
57 Cf., e.g., CAS 2007/A/1251, FC Aris Thessaloniki v. FIFA, Award of 27 July 2007, paras. 3–6.
Cf. also Mavromati/Reeb, Art. R47, para. 13.
58 Cf., e.g., CAS 2012/A/2854, Rolla v. US Città di Palermo & FIFA, Award of 26 March 2013, CAS
Bull. 2013/2, pp 50–53, with further references; CAS 2012/A/2750, Shakhtar Donetsk v. FIFA &
Real Zaragoza SAD, Award of 12 October 2012, CAS Bull. 2013/1, pp. 41–42; CAS 2008/A/1633,
FC Schalke 04 v. CBF, Award of 16 December 2008, para. 10, and the references cited therein;
cf. also CAS 2007/A/1355, FC Politehnica Timisoara SA v. FIFA & RFF & Politehnica Stintia 1921
Timisoara Invest SA, Award of 25 April 2008, paras. 5–16. Cf. also Mavromati/Reeb, Art. R47,
para. 14.
59 CAS 2005/A/899, FC Aris Thessaloniki v. FIFA & New Panionios N.F.C., Award of 15 July 2005,
para. 59. Cf. also Mavromati/Reeb, Art. R47, and the examples given in paras. 15–22. More
recently, cf., e.g., CAS 2015/A/3920, FRMF v. CAF, Award of 17 November 2015, paras. 8.8–8.14,
referring to CAS 2010/A/2315, Netball New Zealand v. IFNA, Award of 27 May 2011, para. 9.1,
with numerous further references, and CAS 2015/A/4063, WADA v. CADC & Remigius Machura
Jr., Award of 5 November 2015, paras. 54–61. For examples of cases where the panel found that
there was no appealable decision, cf., e.g. CAS 2013/A/3409, FAHB et consorts v. IHF, Award
of 28 August 2014, paras. 120–130; CAS 2015/A/4213, Khazar Lankaran Football Club v. FIFA,
Award of 5 January 2016, paras. 48–60.
60 See, e.g., Art. 15 of the FIFA Rules Governing the Procedures of the PSC and the DRC, Art. 116
of the FIFA Disciplinary Code (quoted in footnote 63 below).
61 See, e.g., CAS 2009/A/1781, FK Siad Most v. Clube Esportivo Bento Gonçalves, Award of 12
October 2009, reported in CAS Bull. 2010/1, p. 113, and the references therein, and CAS
2011/A/2436, Associaçao Académica de Coimbra – OAF v. Suwon Samsung Bluewings FS, Award
of 25 May 2012, para. 4.
Article R47 CAS Code – Rigozzi/Hasler 1581

purposes of the appeal.62 That said, if the applicable rules provide that the decision
under appeal can be issued first in non-reasoned form, with the reasons to be
provided subsequently, the appealable decision should be the reasoned decision.
Nevertheless, it is submitted that in urgent cases the party affected by an unreasoned
decision shall not be prevented from filing a statement of appeal against such deci-
sion, without waiting for the issuance of the reasons,63 for the purposes of seeking its
(immediate) stay pursuant to Arts. R48(1), fifth bullet point, and R37 of the Code.64

V THE “EXHAUSTION OF INTERNAL REMEDIES” REQUIREMENT

Article R47(1) provides that a sports decision can be appealed before the CAS 31
according to the appeals procedure only “if the Appellant has exhausted the legal
remedies available to him prior to the appeal”. In other words, the decision under
appeal must be final.

A When is a Decision Final?

The answer to this question should be sought in the applicable sports regulations. 32
Unless the applicable regulations expressly state that the decision at hand is final,
one must ascertain whether they provide for any further internal recourse against
that decision. The requirement of the exhaustion of internal remedies only applies
to remedies which are mandatory under the applicable regulations: discretionary,
optional or extraordinary remedies, such as, for instance, applications for early

62 Cf. Art. R57; and, e.g., CAS 2011/A/2436, Associaçao Académica de Coimbra – OAF v. Suwon
Samsung Bluewings FS, Award of 25 May 2012, paras. 16–23.
63 It should be noted however that the CAS’s position is different in relation to the FIFA rules
stipulating that decisions can be rendered without reasons in certain cases, specifically Arts.
15 of the FIFA Procedural Rules and 116 of the FIFA Disciplinary Code (FDC). Art. 116 FDC
provides that “1. The [FIFA] judicial bodies may decide not to communicate the grounds of a
decision and instead communicate only the terms of the decision. At the same time, the parties
shall be informed that they have ten days from receipt of the terms of the decision to request,
in writing, the grounds of the decision, and that failure to do so will result in the decision
becoming final and binding. 2. If a party requests the grounds of a decision, the motivated
decision will be communicated to the parties in full, written form. The time limit to lodge an
appeal, where applicable, begins upon receipt of this motivated decision”. According to some
recent CAS decisions, this provision means that i) an appeal filed prior to the communication
(upon request) of the reasons for the decision is premature and must therefore be dismissed,
and ii) absent a request for reasons within the applicable time limit, the decision cannot be
appealed (cf., e.g., CAS 2012/A/2961, Khaled Adenon v. FIFA, Award of 20 March 2013, paras.
110–132; and CAS 2011/A/2439, FA Thailand v. FIFA, Award of 17 June 2011). With regard to
the similar rule set out in Art. 15 FIFA Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber, cf., e.g., CAS 2011/A/2563, CD Nacional v. FK
Sutjeska, Award of 30 March 2012, analyzing the earlier jurisprudence at paras. 17–30. Contra:
CAS 2011/A/2436, Associaçao Académica de Coimbra – OAF v. Suwon Samsung Bluewings FS,
Award of 25 May 2012. In line with the predominant case law, see also Mavromati/Reeb, Art.
R47, para. 21, and at Art. R49, para. 99.
64 While declaring the appeal against a FIFA unreasoned decision premature and inadmissible in
light of Art. 116 FDC (see footnote 63 above), the Panel in CAS 2012/A/2961, Khaled Adenon v.
FIFA, Award of 20 March 2013, did not rule that the filing of a request for provisional measures
with the CAS prior to the issuance of the reasons (as was done in that case) was also inadmis-
sible (see in particular paras. 23–31 and 125–131 of the award). Indeed, the Deputy President
of the Appeals Division ruled on the request.
 1582 Arbitration in Switzerland – The Practitioner’s Guide

reinstatement in case of exceptional circumstances,65 need not be exhausted for the

purposes of Art. R47(1).66
33 If the arbitration agreement contemplates that any decision rendered by the relevant
sports-body can be appealed, then CAS jurisdiction will extend to decisions on
provisional measures, provided of course that the applicable internal remedies
have been exhausted.67 A decision by the Single Judge of the FIFA Players’ Status
Committee concerning the issuance of a temporary International Transfer Certificate
(allowing the player to be provisionally registered with a club pending the resolution
of a contractual dispute with his prior club) is a “final decision” for the purposes
of Art. R47(1) even if its object is intrinsically provisional.68

B Are There Any Exceptions to the “Exhaustion Of Internal Remedies”

Rule?

34 According to fundamental principles of law, internal remedies must be exhausted

only if, under the circumstances, this can reasonably be required of the appellant.
By reference to the case law developed under Art. 75 CC, it is generally accepted that
the requirement that internal remedies must be exhausted does not apply in cases
where, for instance, the internal hearing body deliberately delays the proceedings or
refuses to deal with the case, or has made comments about the matter which make
it clear that it will not be able to act with the necessary impartiality.69
35 Furthermore, it is submitted that, in accordance with fundamental principles of
international law, the exhaustion of internal remedies can reasonably be required
only if such remedies are adequate and effective, that is, if they are capable of
redressing the alleged infringement of the legal right at stake.70 This is confirmed
by Art. 13.1 of the WADA Code, according to which internal remedies “must be

65 See, e.g., IAAF Rule 60.9, which was in force prior to the enactment of the WADA Code, providing
that, in exceptional circumstances, athletes who had been sanctioned with a suspension for
doping could apply to the IAAF Council for reinstatement prior to the expiry of their period of
ineligibility.
66 CAS 2002/A/409, Longo v. IAAF, Award of 28 March 2003, para. 17 (where the Sole Arbitrator
concluded that an application for early reinstatement, which was available on the basis of the
IAAF’s Council’s right of mercy in exceptional circumstances, was not a “legal remedy” within
the meaning of Art. R47). Cf. also, e.g., CAS 2011/A/2670, Masar Omeragik v. MFF, Award of
25 January 2013, paras. 4.6–4.8.
67 For a case discussing whether a procedural order (setting out the panel’s tentative views on
jurisdiction and the confidentiality obligations of the sports-governing body, and expressly
reserving the panel’s definitive ruling on those issues for the final award) constituted an
appealable decision within the meaning of the USADA Protocol for Olympic and Paralympic
Movement Testing and Art. R47 CAS Code (coming to the conclusion that such was not the
case), cf. CAS 2013/A/3285, Johan Bruyneel v. USADA, Award of 13 May 2014, paras. 3.1–3.13.
68 CAS 2008/A/1691, Kraków v. FIFA & Empoli, Award of 3 July 2009, CAS Bull. 2010/1, p. 104.
69 Kiener, p. 8 and the references therein. The fact that a sports body takes five months to issue
a simple decision that it lacks jurisdiction allows the appellant to bring the case to CAS even
though the time limit to seize the competent internal body has, in the meantime, elapsed (cf.
CAS 2006/A/1163, Touzé v. FIDE, Award of 22 May 2007, para. 51). Cf. also CAS 2010/A/2243-
2358-2385-2411, J. & ABAT v. AIBA, Award of 3 August 2011, para. 69 (referring to the Panel’s
findings in an earlier order on provisional measures), and Mavromati/Reeb, Art. R47, para. 35.
70 Cf., e.g., CAS 2008/A/A1583 & 1584, Sport Lisboa e Benfica Futebol SAD v. UEFA; FC Porto
Futebol SA & Vitoria Sport Clube de Guimaraes v. UEFA & FC Porto Futebol SAD, Award of 15
July 2008, paras. 6–9. Cf. Mavromati/Reeb, Art. R47, para. 35; see also para. 39 below.
Article R47 CAS Code – Rigozzi/Hasler 1583

exhausted, provided that such re[medies] respect the principles set forth in Art.
13.2.2 [of the WADA Code]” by offering “a timely hearing; a fair, impartial and
independent hearing panel; the right to be represented by counsel at the [appellant]’s
own expense; and a timely, written, reasoned decision”.
Finally, it bears to mention that the requirement of the exhaustion of internal 36
remedies does not apply to third parties that are entitled to appeal by operation of
the arbitration agreement, in particular when they have no such entitlement in the
context of the internal first instance proceedings.71 Thus, Art. 13.1.1 of the WADA
Code provides that “[w]here WADA has a right to appeal […] and no other party
has appealed a final decision within the Anti-Doping Organization’s process, WADA
may appeal such decision directly to CAS without having to exhaust other remedies
in the Anti-Doping Organization process”.

C Procedural Questions

The exhaustion of internal remedies is an admissibility requirement.72 If it is not met, 37

the CAS will reject the appeal but will not dismiss the claim. The appellant will be
free to bring the same claim again once the internal remedies have been exhausted.73
Contrary to the question of compliance with the time limit for appeal,74 or of the 38
existence of a CAS arbitration agreement, the exhaustion of internal remedies
should not be examined by the CAS ex officio.75 If the sports-governing body that
has rendered the decision under appeal wishes to rely on the fact that an internal
remedy was still available to the appellant, it should do so in its answer brief at the
latest.76 The relevant sports-governing body can also elect to abandon such objection
in the course of the arbitration.77
If there is a dispute regarding the existence of an internal remedy, the sports- 39
governing body bears the burden of proving that such remedy existed.78 If the
governing body does so, the burden of proof shifts to the appellant, who must
then establish that (i) the remedy in question was in fact exhausted, or (ii) was
inadequate and/or ineffective in the particular circumstances of the case, or (iii)

71 CAS 98/212, UCI v. M. & FCI, Award of 24 February 1999, para. 8.

72 Cf., e.g., BGer. 4A_682/2012 para. 4.4 in fine.
73 Cf. also Mavromati/Reeb, Art. R47, para. 42, with reference to CAS 2007/A/1259, K. Bum Suk
v. Korea Skating Union, Award of 14 August 2007, para. 7.4.
74 Art. R49.
75 Contra, apparently, Mavromati/Reeb, Art. R47, para. 32.
76 Art. R55.
77 CAS Ad Hoc Division, OG 00/012, Dimitrova Neykova v. FISA and IOC, Award of 29 September
2000, para. 9. In CAS 2014/A/3694, Roman Kreuziger v. UCI, Award of 24 September 2014,
para. 5.2, the parties agreed to waive the exhaustion of internal remedies requirement for the
purpose of expediting the proceedings. Cf. also Mavromati/Reeb, Art. R47, para. 39 with further
references.
78 CAS 2005/A/971, RBF v. IBF, Award of 31 January 2006, para. 6.1.2; cf. also CAS Ad Hoc Division
OG 00/014, FFG v. SOCOG, Award of 30 September 2000, para. 6, where the Panel noted that
“no legal remedies other than resort to the Court of Arbitration were drawn to our attention”.
More recently, cf., e.g., CAS OG 14/03, Maria Belen Simari Birkner v. COA and FASA, Award
of 13 February 2014, para. 5.9.
 1584 Arbitration in Switzerland – The Practitioner’s Guide

that there existed special circumstances exempting him or her from the obligation
to exhaust the available remedies.79
40 Finally, it must be emphasized that although the “exhaustion of internal remedies
rule” constitutes a mere admissibility requirement, it is treated as a precondition
for CAS jurisdiction in the context of actions to set aside CAS awards based on Art.
190(2)(b) PILS, meaning that the issue can be reviewed with unfettered powers by
the Swiss Supreme Court.80

VI DISPUTES ABOUT JURISDICTION

41 Pursuant to Art. 186(2) PILS, a plea of lack of jurisdiction must be raised prior to
any defence on the merits. Accordingly, if the respondent challenges the jurisdiction
of the CAS, it must do so at the latest in its answer brief.81 If it does not, it will be
deemed to have implicitly accepted the jurisdiction of the CAS in accordance with
the so-called Einlassung doctrine developed by the Swiss Federal Supreme Court.82
42 In those cases where CAS jurisdiction is disputed, CAS panels have the power to
decide on their own jurisdiction according to the Kompetenz-Kompetenz principle
embodied in Art. 186(1) PILS.83 This is now expressly restated in Art. R55(4) of the
CAS Code as well.
43 In accordance with Art. 186(1)bis PILS (and Art. R55(4) of the Code), a CAS panel
“shall rule on its jurisdiction irrespective of any legal action already pending before
a State court or another arbitral tribunal relating to the same object between the
same parties, unless serious reasons require a suspension of the proceedings”.
Applying this provision in a case in which a Swiss club had filed an appeal based
on Art. 75 CC against a FIFA decision before the Zurich courts, the CAS held that
“the Appellant should prove that the stay is necessary to protect his rights and that
the continuance of the arbitration would cause him some serious inconvenience”
and went on to conclude that the mere “possibility that the Zurich Court may come
up with a different decision than that of the CAS” was “manifestly not” a serious
reason within the meaning of Art. 186(1) bis PILS.84
44 Contrary to the principle set out in Art. 186(2) PILS, CAS panels do not, as a rule,
decide on their jurisdiction by means of a preliminary award. The bifurcation of
the proceedings is generally ordered only upon a request by the party opposing

79 Cf., e.g., the discussion in CAS 2013/A/3272, Ik–Jong Kim v. FILA, Award of 28 February 2014,
paras. 65–66, where the panel held that there was no internal remedy available to deal with
the contested decision, which – contrary to the respondent’s assertion – was non-disciplinary
in nature and could therefore not be appealed to the FILA Sports Judge, whose jurisdiction is
limited to disciplinary matters.
80 Rigozzi, JIDS 2010, p. 244; cf., e.g., BGer. 4A_682/2012 para. 4.
81 Cf. Art. R55(1). The fact that the respondent did not challenge the jurisdiction of the CAS in
previous procedural exchanges or in its response to a request for provisional measures does
not constitute an acceptance of such jurisdiction. Cf., e.g., Kaufmann-Kohler/Rigozzi, para.
5.13.
82 Cf. Arroyo, above commentary on Art. 190 PILS (Chapter 2, Part II), paras. 47–49.
83 Cf., e.g., CAS 2009/A/1996, Riza v. Trabzonspor & TFF, paras. 62–63; CAS 2015/A/4213, Khazar
Lankaran Football Club v. FIFA, Award of 5 January 2016, para. 43.
84 CAS 2009/A/1881, El-Hadary v. FIFA & Al-Ahly SC, Partial Award of 7 October 2009, paras.
66–68; cf. also BGer. 4A_428/2011 para. 5.2.2.
Article R47 CAS Code – Rigozzi/Hasler 1585

jurisdiction. While it is difficult to point to established general rules in this regard,

experience suggests that panels will grant a request for bifurcation and issue a
separate award only if (i) the jurisdictional challenge is based on legal issues that are
clearly distinct from the issues pertaining to the merits of the dispute and can thus
be easily dealt with separately in a time- and cost-efficient manner, or (ii) it would
otherwise be procedurally unfair to require the party challenging the jurisdiction of
the CAS to prepare a full-fledged submission covering also the merits of the dispute.
Of course, in practice, panels will be more inclined to order the bifurcation of the
proceedings if it appears that there are good chances that the case will not even
reach the merits phase.85
If the panel does issue an award on jurisdiction, the losing party can (and must)86 45
challenge that award in the Swiss Supreme Court within thirty days from the
notification of the signed original.87 The filing of an action to set aside an award
asserting jurisdiction will not prevent the panel from continuing the arbitration
proceedings, unless the Supreme Court grants a request by the petitioner for the stay
of the arbitration pending the Supreme Court’s decision on the challenge against
the award.88 However, in practice, if the challenge is at least colorable, CAS panels
will prefer to suspend the proceedings sua sponte, out of deference towards the
Supreme Court. It is submitted that this approach is justified in those cases where
(i) the jurisdictional questions turn on the determination of legal issues the Swiss
Supreme Court is free to review under Art. 190(2)(b) PILS (such as, for instance,
the determination of the hypothetical will of the parties), and (ii) the delay in the
proceedings does not unduly harm the party relying on CAS jurisdiction.

VII APPEALS AGAINST CAS (FIRST INSTANCE) AWARDS

Article R47(2) provides that “[a]n appeal may be filed with the CAS against an 46
award rendered by CAS acting as a first instance tribunal if such appeal has been
expressly provided by the rules of the federation or sports-body concerned”.89 A
two-tier arbitration system of this kind was first set up by the Australian Olympic
Committee’s “Anti-doping Policy”, which provides for an arbitration hearing before
a CAS panel instituted by the CAS’s Oceania decentralized office,90 followed by
an appeal to the “international CAS” in Lausanne.91 The same approach was then
adopted by the US Antidoping Agency (USADA). Thus, US athletes are afforded a
first hearing in the so-called North American Court of Arbitration for Sport, instituted

85 See, e.g., CAS 2011/A/2534 & 2535, Hasan et al. v. FIFA & IFA, Award of 14 February 2012.
86 If it does not do so, it will be deemed to have accepted CAS jurisdiction and shall be estopped
from bringing a jurisdictional challenge against the final award; cf. Rigozzi, JIDS 2010, p. 245.
87 Art. 190(3) PILS; cf. BGer. 4A_392/2010 para. 2.3.2 (confirmed in BGer. 4A_604/2010 para. 1.3
and the ensuing case law; cf. Kaufmann-Kohler/Rigozzi, para. 8.38).
88 Cf. also Arroyo, above commentary on Art. 191 PILS (Chapter 2), paras. 55–59. On the (strict)
requirements to be met to obtain an order staying the enforceability of the award before the
Supreme Court, see also Kaufmann-Kohler/Rigozzi, paras. 8.92–8.99.
89 See also Mavromati/Reeb, Art. R47, para. 6.
90 The CAS’s Oceania decentralized office is in Sydney, Australia. There is a second permanent
decentralized CAS office in New York City, USA.
91 For a description of this mechanism, cf. CAS 2004/A/651, French v. Australian Sports Commission
& Cycling Australia, (Appeal) Award of 11 July 2005.
1586 Arbitration in Switzerland – The Practitioner’s Guide

under the aegis of the American Arbitration Association (AAA),92 as well as the
possibility to appeal against the AAA award to the CAS in Lausanne. US athletes
can also elect to bring appeals directly to the CAS, and in such cases they will have
the guarantee that the hearing will take place in the US.93 Given that the CAS Panel
is to hear the dispute de novo,94 one may wonder whether it is sensible to have
two full-fledged arbitration hearings to decide a doping case.95 However, this is a
question for the relevant national anti-doping organizations, rather than the CAS.

92 Proceedings before the North American CAS are governed by the AAA Supplementary Procedures
for the Arbitration of Olympic Sport Doping Disputes, available at <http://www.adr.org> (under
‘Rules and Forms’), which are incorporated in USADA’s Protocol for Olympic and Paralympic
Movement Testing (USADA Protocol, available at <http://www.usada.org>) as Annex D.
93 This is so, because making use of the option provided for in Art. R28 at the end of the Code,
the USADA Protocol (Annex D, R-45) states that “[a]ppeals to CAS filed under these rules shall
be heard in the United States”. This has no influence on the legal seat of the arbitration which
remains in Lausanne. The second stage of the USADA arbitrations will thus be governed by
Swiss arbitration law, which is confirmed by the USADA Protocol’s provision to the effect
that “[t]he decisions of CAS shall be final and binding on all parties and shall not be subject
to any further review or appeal except as permitted by the Swiss [Federal Supreme Court] Act
or the Swiss Statute on Private International Law” (USADA Protocol, R-45). For a well-known
case, cf. USADA v. Hamilton, AAA Case No. 30 190 0013005, Award of 18 April 2005 and CAS
2005/A/884, Hamilton v. USADA & UCI, Award of 10 February 2006; or, more recently, USADA
v. Hardy, AAA Case No. 77 190 00288 08, AAA Award on Liability of 1st August 2008, AAA
Interim Award of 4 May 2009 and AAA Final Award of 30 May 2009, and CAS 2009/A/1870,
WADA v. Hardy & USADA, Award of 21 May 2010. Among the more recent cases, see, e.g.,
CAS 2016/A/4371, Robert Lea v. USADA, Award of 4 May 2016. CAS awards on appeal against
AAA awards can be found on the USADA website, at <http://www.usada.org/testing/results/
arbitration-decisions/>.
94 Cf. Art. R57. Note however that, as discussed in connection with that provision, the concept
of de novo hearings in CAS has recently been qualified, with the 2013 edition of the CAS Code
expressly providing that the Panel will have discretion to exclude evidence presented by the
parties if it was available to them or could reasonably have been discovered by them before
the challenged decision was rendered, i.e. in the first instance proceedings (cf. Art. R57(3)
below).
95 Weston, GA J.Int’l & Comp.L. 2009, pp. 104–106.
 1587

Article R48: Statement of Appeal

The Appellant shall submit to CAS a statement of appeal containing:
– the name and full address of the Respondent(s);
– a copy of the decision appealed against;
– the Appellant’s request for relief;
– the nomination of the arbitrator chosen by the Appellant from the CAS
list, unless the Appellant requests the appointment of a sole arbitrator;
– if applicable, an application to stay the execution of the decision appealed
against, together with reasons;
– a copy of the provisions of the statutes or regulations or the specific
agreement providing for appeal to CAS.
Upon filing the statement, the Appellant shall pay the CAS Court Office fee provided
for in Article R64.1 or Article R65.2.
If the above-mentioned requirements are not fulfilled when the statement of ap-
peal is filed, the CAS Court Office may grant a one-time-only short deadline to the
Appellant to complete its statement of appeal, failing receipt of which within the
deadline, the CAS Court Office shall not proceed.

I PURPOSE OF THE PROVISION

The filing of the statement of appeal is the first step in CAS appeals arbitration 1
proceedings. The purpose of Art. R48 is to set out the minimum required contents
and information to be provided with the statement of appeal, so that the proceed-
ings can be properly set in motion by the CAS (II.). That being said, appellants are
free to include additional items and procedural requests in the statement of appeal
(IV.). Together with Arts. R64.1 and R65.2, Art. R48 also clarifies that, in order
for the arbitration to proceed, prospective appellants are required to pay the CAS
Court Office fee when filing the statement of appeal (III). Finally, Art. R48 provides
guidance on how the CAS will deal with the filing of a statement of appeal that is
not fully compliant with the Code’s requirements (V.).

II FILING AND MINIMUM REQUIRED CONTENTS OF THE STATEMENT

OF APPEAL

As a preliminary matter, it bears to note that according to Art. R48(1) the statement 2
of appeal is to be “submitted to the CAS”. This means in particular that the statement
of appeal should be filed directly with the CAS: any rules requiring the appellant to
file the statement via a federation’s organ or other sports-body are, in the words of
a CAS Panel, “seriously questionable” as they prevent the CAS from applying “its
 1588 Arbitration in Switzerland – The Practitioner’s Guide

usual standards to consider whether an appeal is admissible or not”, in particular

with respect to compliance with the time limit for appeal.1
3 The statement of appeal is the “initiating document” in CAS appeals proceedings.
As such, it must be filed within the time limit for appeal, which can be set out in
the applicable sports-governing rules or may have to be determined pursuant to Art.
R49 of the Code.2 In view of the fundamental need for certainty as to the finality of
the decisions issued by sports-governing bodies, the time limit to bring an appeal
against such decisions is in general relatively short. Taking this time pressure element
into consideration, the statement of appeal can be filed in the form of a concise and
simple document, as long as it includes the basic elements required by Art. R48.
In particular, the statement of appeal need not contain detailed factual and legal
developments. These may be reserved for the appeal brief, which is considered as
the appellant’s (in principle, only) full-fledged “written submission” in CAS appeals
proceedings.3
4 Pursuant to Art. R31(3), the statement of appeal must be filed by courier delivery to
the CAS Court Office, in as many copies (“printed or saved on digital medium”) as
there are other parties and arbitrators, together with an additional copy for the CAS.4
As just mentioned, the statement of appeal must be filed within the applicable time
limit. In this connection, it is important to note that the 2016 revision of the Code
has further amended (and partly reversed a change introduced in the 2013 version
of) the second part of Art. R31(3), which governs the validity of filings made by
means other than courier. In the Code’s 2013 edition, Art. R31(3) provided that if
written submissions were transmitted to CAS by facsimile, in order for the filing to
be valid they should also be sent by courier before the expiry of the relevant time
limit (effectively ruling out the hitherto prevailing practice of faxing submissions on
the day of the time limit (before midnight) and dispatching them by registered post
or courier as soon as possible thereafter). Art. R31(3)’s 2016 version now allows for
the filing of submissions by e-mail (in addition to facsimile), and expressly readmits
the pre-2013 practice of filing only by facsimile (or e-mail) within the time limit,
albeit specifying that if submissions are “transmitted in advance by facsimile or by
electronic mail […], the filing is valid upon receipt of the facsimile or of the electronic
mail by the CAS Court Office provided that the written submission and its copies is
also filed by courier within the first subsequent business day of the relevant time limit”.
5 While the relevant date to determine whether the statement of appeal was filed
within the applicable time limit is the date of dispatch (the date when it was sent),5
it is the date of its receipt by the CAS Court Office that will be determinative for the
purposes of lis pendens within the meaning of Art. 181 PILS.6

1 CAS 2006/A/1065, W. v. FEI, Termination Order of 20 June 2006, pp. 3–4.

2 Cf. Art. R49.
3 Cf. Art. R51.
4 Since the 2013 revision, the Code also permits the filing of written submissions via an electronic
platform “under the conditions set out in the CAS guidelines on electronic filing”. However, this
service is not available for the statement of appeal (and request for arbitration).
5 Cf. Art. R49.
6 Cf., e.g., Kaufmann-Kohler/Rigozzi, para. 6.09, and Mavromati/Reeb, Art. R48, para. 47. For a
different view (considering that absent a specific provision in the rules chosen by the parties,
the relevant date for lis pendens purposes is that when the request for arbitration, viz. the
statement of appeal, is sent to the arbitral institution), cf. Berger/Kellerhals, para. 1031 and
Girsberger/Voser, para. 881. For a commentary on Art. 181 PILS, cf. Stacher/Feit at Chapter 2
Article R48 CAS Code – Rigozzi/Hasler 1589

According to Art. R48, the elements that must be included7 in the statement of 6
appeal are the following:

A Name and Full Address of the Parties

From a practical point of view, the objective of this requirement is to enable the CAS 7
Court Office to notify the appeal to the designated respondent(s) and more generally
to be provided with the contact details to use for communications with the parties
or their counsel and/or other representatives throughout the proceedings.8
The parties’ details as provided by the appellant also give a first indication of the 8
scope, ratione personae, of the arbitral proceedings to be set in motion. At this
preliminary stage, the information required under Art. R48 is meant to assist the
CAS Court Office in conducting a prima facie review of the existence of an arbitration
agreement9 so as to determine whether, assuming there is an existing and valid agree-
ment, the appellant(s) and the designated respondent(s) appear to be parties to it.10
In this respect, even though this is not expressly mentioned in Art. R48, the appellant 9
obviously also needs to provide the CAS with his, her or its own name and contact
details (as well as those of his, her or its counsel, if and when one is appointed).11
If the appellant(s) and/or respondent(s) have been insufficiently identified or if
there are other issues with the information provided in the statement of appeal with
regard to the potential parties to the proceedings, the CAS Court Office will invite
the appellant to provide additional details as may be necessary and/or to clarify any
such issues within a short time limit.12

B Complete Copy of the Decision Appealed against

To the extent the decision in question forms the very object of the appeal, this is an 10
obvious requirement. If the decision has been rendered in a language other than the
CAS’s working languages (English or French),13 it is submitted that at least for the

(Part II) above. The corresponding provision for domestic arbitrations is Art. 372 ZPO, which,
in pertinent part, is worded similarly.
7 On the consequences of filing an incomplete statement, which are set out in Art. R48(3), see
below, paras. 26–29.
8 Since the CAS Court Office’s day-to-day communications in arbitration proceedings are made by
fax or (increasingly) by email, it is important to provide fax numbers and/or e-mail addresses
in the contact details.
9 Cf. Art. R52(1).
10 The issue of standing to appeal is briefly discussed above under Art. R47 (para. 21). On this
question as well as that of standing to be sued, cf. Mavromati/Reeb, Art. R48, paras. 65–70,
and De La Rochefoucauld, CAS Bull. 2011/1, pp. 13–20 and the references therein, as well as,
by the same author, CAS Bull. 2010/1, pp. 51–56, and the references therein. See also CAS
2012/A/2981, Clube Desportivo Nacional v. FK Sutjeska, Award of 27 March 2013, for a case
where the appeal was declared inadmissible and dismissed due to the appellant’s failure to
designate the correct respondent in the statement of appeal.
11 Cf. also below, para. 21, and Art. R30 regarding the production of powers-of-attorney for
party representatives. The appellant should indicate at any appropriate stage whether the
correspondence from the CAS Court Office should be addressed to him or her, and/or any
representative(s) or counsel.
12 Cf. below, paras. 28–32.
13 Cf. Art. R29.
 1590 Arbitration in Switzerland – The Practitioner’s Guide

immediate purpose of filing the statement of appeal within the applicable time limit,
no translation is mandatorily required, provided it is produced as soon as possible
thereafter.14 That said, it would obviously be strongly advisable to file at least (e.g. if
the decision is particularly long) a translation of the sections of the decision which
set out the parties’ names and the date when the decision was issued, as well as the
dispositive part and any other elements which may be of relevance for the purposes
of the CAS’s prima facie examination of jurisdiction.15
11 For the sake of efficiency, even though this is not required under Art. R48, it may
be sensible to include as an exhibit to the statement of appeal a proof of the date
of receipt of the challenged decision in order to demonstrate that the time limit for
appeal has been complied with.16

C Appellant’s Request for Relief

12 The request for relief defines the object and scope of the dispute and thus the subject-
matter of the arbitration. In appeals cases, the relief requested will generally be the
annulment or amendment of the challenged decision(s) in whole or in part, together
with any additional requests, including, for instance, requests seeking declaratory
relief and/or orders for specific performance (such as the reinstatement of results or
the delivery of an ITC), and/or pecuniary relief (for instance the payment of transfer
fees), and/or orders in relation to costs, including arbitration and legal costs.
13 The statement of appeal must provide an indication of the relief sought, so as to
enable the CAS Court Office, the respondent(s), and (once it will be appointed)
the panel to grasp the issues raised by the appeal and the claim(s) at stake.17 That
said, the CAS case law has explicitly recognized that the appellant will still be at
liberty to amend or complete the relief sought in his or her appeal brief,18 to which
the respondent(s) will in any event have a full opportunity to reply.19

14 See also Mavromati/Reeb, Art. R48, para. 74.

15 Conversely, experience shows that the CAS Court Office will generally also require a copy of
the original version of the decision if only a translation is filed.
16 Cf. Art. R49. The appellant may also wish to point to the provision (if any) in the governing
rules or regulations that sets out the applicable time limit for appeal. Mavromati/Reeb, Art. R48,
para. 71, state that if the appellant’s filing provides “no indication as to the date of notification
[of the appealed decision] and the appeal seems to have been filed late, the CAS Court Office
sends a letter to the appellant requesting […] this information before initiating the procedure”.
17 In the words of the Panel in CAS 2005/A/835 & 942, PSV N.V. v. FIFA et al., Award of 3 February
2006: “for a statement of appeal against a given respondent to be admissible, it is necessary
not only that it names that respondent, but also that it contains an actual claim against the
subject indicated as respondent; the simple indication of a respondent does not mean per se that
arbitration can proceed against that respondent, unless a specific claim is brought against it”
(para. 86). Cf. also CAS 2005/A/957, Clube Atlético Mineiro v. FIFA, Award of 23 March 2006,
paras. 7–8.
18 Cf. CAS 2007/A/1434 & 1435, IOC & WADA v. Pinter & FIS, para. 79; CAS 2007/A/1396 &
1402, WADA & UCI v. Alejandro Valverde & RFEC, Award of 31 May 2010, paras. 10–11. See
also Mavromati/Reeb, Art. R48, para. 76.
19 Cf., e.g., CAS 2009/A/1881, El Hadary v. FIFA & Al-Ahly Sporting Club, Partial Award on lis
pendens and jurisdiction of 7 October 2009, para. 58.
Article R48 CAS Code – Rigozzi/Hasler 1591

D Nomination of the Arbitrator Chosen by the Appellant

Article R48(1) requires the appellant to nominate an arbitrator “from the CAS list”, 14
which is compiled by the ICAS in accordance with Arts. S13 and S14 and published
on the CAS website.20 This is a mandatory requirement and any appointment from
outside the list will not be confirmed by the CAS. In other words, the CAS list of
arbitrators is a so-called closed list. The Swiss Federal Supreme Court considers
that the CAS list is sufficiently long to afford the parties “a wide choice of names to
choose from, even taking into account the nationality, language and sport practiced
by athletes who appeal to the CAS”.21 In view of this and of the specific context
of competitive sports, the Supreme Court has held that the CAS list of arbitrators
helps to achieve the objective of resolving disputes “quickly, simply, flexibly and
inexpensively by experts familiar with both legal and sports-related issues”.22
The requirement of Art. R48(1) for the statement of appeal to contain “the nomination 15
of the arbitrator chosen by the Appellant […], unless the Appellant requests the
appointment of a sole arbitrator” suggests that the default solution in CAS appeals
proceedings is for a three member panel to hear the case (as further confirmed by Art.
R50, first sentence). Against this background, and knowing that pre-existing agree-
ments on the number of arbitrators are rather rare in sports disputes, the clarification
introduced in the 2013 edition of the Code, according to which the appellant may
request the appointment of a sole arbitrator upon filing the statement of appeal, is
to be welcomed. The appellant may wish to do so, for instance, for the sake of time
and/or cost efficiency (where the proceedings are not free of charge under the Code).
In such a case, the appellant will thus not be required to nominate an arbitrator in
the statement of appeal and the CAS Court Office will invite the respondent to state
its position with regard to the appellant’s request.23 If the respondent agrees to have
a sole arbitrator hear the case, the arbitrator will be appointed by the President of
the Appeals Division in accordance with Art. R51. If the respondent does not agree
or the President of the Appeals Division decides that the case should be heard by
a three-member panel,24 the CAS Court Office should fix a short time limit for the
parties to nominate their respective arbitrators.

20 Cf. Introduction, paras. 5–10 above (Part I). The list (<http://www.tas-cas.org/en/arbitration/
list-of-arbitrators-general-list.html>) can be searched by nationality, last name and languages
spoken. There is a distinct list, also available on the CAS website, from which parties are
required to select arbitrators in football disputes for cases involving FIFA, cf. <http://www.
tas-cas.org/en/arbitration/list-of-arbitrators-football-list.html>.
21 BGE 129 III 445 para. 3.3.3.2; English translation available in: ICCA Yearbook 2004, Vol. XXIX,
pp. 206–231. As mentioned, the list of arbitrators has more than doubled in length (from ap-
prox. 150 names to about 350 as of the end of 2016) from the time when the Supreme Court’s
Lazutina decision was rendered.
22 BGE 129 III 445 para. 3.3.3.2; English translation available in: ICCA Yearbook 2004, Vol. XXIX,
pp. 206–231.
23 See Mavromati/Reeb, Art. R48, para. 79, noting that the CAS’s practice is to indicate “in the letter
sent following the statement of appeal that, if the respondent remains silent on [the appellant’s
proposal for a sole arbitrator], the matter will subsequently be brought before the President of
the Appeals Division”.
24 The President of the Appeals Division retains the right to decide that the dispute is to be heard
by a sole arbitrator, irrespective of any agreement or disagreement by the parties; cf. Art. R50(1).
 1592 Arbitration in Switzerland – The Practitioner’s Guide

E Request for a Stay of the Execution of the Decision Appealed against

(if Applicable)

16 Article R48(1) expressly provides that the appellant may request, in the statement of
appeal, a stay of the decision under appeal pending the outcome of the proceedings.25
An application for the stay of the execution of a decision is a request for provisional
relief.26 As such, in order to be granted, the request must meet the conditions governing
requests for provisional measures in CAS proceedings. Thus, as discussed in more
detail in the commentary to Art. R37, an applicant is required to show that: (i) he
or she is at risk of suffering irreparable harm if the stay is not granted; (ii) he or she
is likely to succeed on the merits of his or her case when this will be heard by the
panel, and (iii) his or her interest in obtaining the grant of the stay outweighs that of
his or her counterparties (or those of other interested parties) in seeing the decision
applied without delay or interruption (the so-called “balance of interests” test).27
17 The wording of Art. R48(1) suggests that an application for a stay must be filed (at
the latest) with the statement of appeal and would be inadmissible at a later stage.28
While the CAS’s practice does not appear to be cast in stone in this respect,29 it
is submitted that a request for a stay filed at a later stage should be entertained
only in exceptional circumstances, upon a reasoned application by the appellant,
in particular when the need for the measure and/or the urgency of the matter has
become apparent at a later stage.30

F Provisions of the Relevant Regulations or Specific Agreement

Providing for Appeal before the CAS

18 A copy of the provisions in the relevant statutes, by-laws, regulations, other rules
or any separate arbitration agreement31 on which the appellant relies to ground the
jurisdiction of the CAS with regard to the dispute at hand must be provided with
the statement of appeal. In case such regulations or agreement are not available in
English or French, translations of the relevant provisions should also be provided
with the statement of appeal or as soon as practicable after its filing. Together with

25 Cf. Art. R48 (1), fifth bullet point.

26 Accordingly, pursuant to Art. R37(6), it could also be filed prior to the statement of appeal,
which would then have to be submitted within the applicable time limit under Art. R49,
failing which the procedure relating to the request for a stay (including an order granting such
effect if it has already been issued) would be “automatically annulled”. Cf. Art. R37; see also
Mavromati/Reeb, Art. R48, paras. 80–81.
27 Cf. Art. R37, paras. 15–32 above.
28 Rigozzi, para. 1154.
29 In CAS 2010/A/2371, FBF v. FIFA, where the respondent had raised an argument in this sense,
the decision issued by the President of the Division did not deal with it, as it rejected the ap-
pellant’s request on the ground that the CAS lacked prima facie jurisdiction to hear the appeal.
30 For instance, when the process turns out to be much slower than what the appellant could
reasonably have expected when filing the statement of appeal. By contrast, considering the
impact the grant of such a request may have on the interests of third parties, the appellant
should not be allowed to wait until just before an important competition to ask for a stay of
his or her suspension. See also Mavromati/Reeb, Art. R48, para. 82, who concur.
31 Cf. Art. R47, paras. 11–24 above.
Article R48 CAS Code – Rigozzi/Hasler 1593

the decision appealed against,32 this is an essential element to allow the CAS Court
Office to ascertain prima facie that the CAS has jurisdiction to hear the case.33

III COURT OFFICE FEE

Upon filing the statement of appeal, the appellant must pay the non-refundable CAS 19
Court Office fee, which is set at CHF 1’000 in the current edition of the Code.34 The
CAS Court Office fee is the equivalent of the “registration fee” or “filing fee” charged
by other arbitral institutions:35 it is meant to cover the CAS’s case-handling costs
and will thus not be refunded (unless legal aid is granted, as discussed below), even
if the case is withdrawn immediately after the filing of the statement of appeal.36
If the appellant makes a request for legal aid,37 the CAS requires payment of the 20
Court Office fee pending the ICAS Board’s decision on the request. If legal aid is
granted, the Court Office fee will be refunded.38 Although normally the CAS will
not accept to provisionally waive the payment of the Court Office fee pending the
ICAS’s decision on the request for legal aid,39 it has accepted to do so on at least
one occasion.40
Where legal aid is not in issue, the CAS Court Office systematically informs appel- 21
lants that it will not proceed with the case until the fee has been paid, so applicants
who want their case to be handled without delay should settle the fee before or
immediately upon filing the statement of appeal, and provide proof of payment to
the CAS as soon as it is available. If the payment has been made prior to the filing
of the statement of appeal, then a proof of payment (e.g., copy of a wire- or bank
transfer order or a stamped post-office payment-receipt) should be attached to the
statement as an exhibit.

IV OTHER PROCEDURAL ISSUES

If the appellant instructs counsel or another person, such as an agent, to represent 22

him or her in the arbitration,41 a power of attorney should be provided,42 but there
is no obligation to file it with the statement of appeal.
In appeals cases, it is relatively rare for the parties to have made an express agree- 23
ment with regard to the language of the proceedings. In most instances, appellants
will file their statement of appeal in the language of their preference between the

32 See above, paras. 10–11.

33 Art. R52(1). Cf., e.g., CAS 95/143, S. & L. v. FIS, Order of 30 October 1995, CAS Digest I, pp.
535–536; see also Mavromati/Reeb, Art. R48, paras. 83–84.
34 Cf. Art. R65.2(2).
35 Cf., e.g., Swiss Rules Art. 3(3)(i) and Schedule B; ICC Rules Art. 4(4)(b) and Appendix III.
36 That said, as indicated in Art. R64.1 CAS Code, the Court Office fee will be taken into account
by the Panel (or the Division President) when assessing the final amount of costs.
37 See below, para. 24.
38 CAS 2012/A/2720, FC I. v. LA de l’ASF & ASF & FC C., Letter of 8 February 2012.
39 Mavromati/Reeb, Art. R30, para. 25.
40 CAS 2011/A/2503, D. v. CONI, Order of 5 September 2011.
41 The appellant can choose to be assisted or represented, throughout the proceedings, by any
person of his or her choice, not necessarily a lawyer (cf. Art. R30).
42 Cf. Art. R30.
 1594 Arbitration in Switzerland – The Practitioner’s Guide

two CAS working languages, i.e. French or English,43 and this will normally be
assumed to be their choice of language for the conduct of the arbitration. Absent
any objections from the respondent(s),44 the language so chosen will be deemed
to be the language of the proceedings by the CAS. If the respondent(s) disagree(s),
the panel will decide the issue. Should the panel decide to change the language of
the arbitration after the statement of appeal has been filed, for instance to revert to
the language in which the proceedings leading to the decision under appeal were
conducted, the CAS can order that the statement of appeal should be translated
into the newly designated language of the arbitration.45 If necessary, in light of the
change in the linguistic skills required, the panel may also order the replacement
of the arbitrator appointed by the appellant. If the parties cannot find an agreement
on the language of the arbitration, the CAS can also, where appropriate, fix the
language of the proceedings (in which the CAS’s correspondence and the award
will be drafted) and allow each party to make written and oral submissions in the
language of its choice between French and English.46
24 As mentioned, the statement of appeal may include a request for legal aid. The form
to be used for the request can now be downloaded from the CAS website,47 together
with the CAS’s Legal Aid Guidelines, which set out the eligibility conditions and
the procedure followed in dealing with the application.48
25 In addition to a request for the stay of the execution of the decision under appeal,
discussed above, other procedural requests can be included in the statement of appeal,
for instance49 applications for certain evidentiary measures to be taken,50 for the

43 If the appellant wishes to file the statement of appeal in a language other than English or
French, then it should first inquire with the CAS Court Office as to the languages accepted,
which will normally include German, Italian and Spanish, but are subject to the Court Office’s
and, subsequently, the panel’s agreement. In this connection it should be kept in mind that the
choice of a particular language for the conduct of the proceedings will also have an impact on
the choice of arbitrators: selecting a language that is not widely spoken among the arbitrators
included in the CAS list will obviously restrict the pool of suitable candidates for appointment
(not to mention the fact that it may cause additional translation and interpretation costs).
44 The standard letter sent by the CAS Court Office to set the arbitration proceedings in motion
will normally contain a paragraph noting that the appellant has chosen to proceed in the
language of the statement of appeal, in some cases indicating that absent any objections from
the respondent within a short time limit (usually five days), all the submissions and documents
in the arbitration will have to be filed (and thus where necessary, translated) in that language,
in accordance with Art. R29.
45 Cf., e.g., CAS 2013/A/3365, Juventus FC v. Chelsea FC & CAS 2013/A/3366, AS Livorno Calcio
SpA v. Chelsea FC, Award of 21 January 2015, para. 51, where the decision was taken by the
President of the Appeals Division, as the panel had not yet been appointed.
46 Cf., e.g., CAS 2011/A/2325, UCI v. Paulissen & RLVB, Award of 23 December 2011, para. 44.
47 Available in English at <http://www.tas-cas.org/fileadmin/user_upload/Legal20Aid20Form20_
English_.pdf>, and in French at <http://www.tas-cas.org/fr/arbitrage/assistance-judiciaire.
html>.
48 On the creation of the CAS legal aid fund pursuant to Art. S6 point 9 of the CAS Code, and the
adoption of the CAS Legal Aid Guidelines in 2013, see Mavromati/Reeb, Art. R30, paras. 22–29.
On the Legal Aid Guidelines and how to apply for legal aid, see Art. R64 and the commentary
below.
49 In addition to the examples given here, Mavromati/Reeb, Art. R48, para. 54, also mention
the possibility to include submissions on the law applicable to the merits, if that law is not
“indicated in the arbitration agreement”.
50 Cf. Art. R44.3.
Article R48 CAS Code – Rigozzi/Hasler 1595

proceedings to be conducted in an expedited manner,51 or for the extension of the

time limit for the filing of the appeal brief.52 If any such requests are made in the
statement of appeal, it may be wise to mention them expressly in the accompanying
letter (if any) or on the cover page of the statement of appeal, so as to draw the CAS
Court Office’s attention to them, especially if they are urgent.
Article R48 contains no specific requirement with respect to the form of the statement 26
of appeal. As mentioned above, the statement can be a very short document, and can
even be submitted as a simple letter, provided it contains all the required elements
and information.53 Art. R31(3) indicates the number of copies of the statement that
should be filed with the CAS by courier and/or registered mail, whether printed or
saved “on digital medium”.54 If the number of copies filed is insufficient, the CAS
Court Office can ask the appellant to file additional ones.
Finally, it bears to note that the CAS’s e-filing service, introduced with the 2013 27
edition of the Code, is only available after the opening of the case, which implies
that the statement of appeal cannot be filed via that channel.55

V INCOMPLETE STATEMENT

Article R48(3) provides that if the statement of appeal does not meet the requirements 28
set out in Art. R48(1) and (2), the CAS Court Office shall grant the appellant a short
deadline to complete his or her statement. The additional deadline granted by the
CAS Court Office will usually not exceed 3–4 days.56
If the statement of appeal is completed within the short additional deadline set by the 29
Court Office, the appellant will be deemed to have complied with the time limit for
appeal even if the original statement was found to be incomplete (provided of course
that the filing of the original statement was made within the time limit for appeal).
If the statement is not completed within this additional deadline, the “CAS Court 30
Office shall not proceed” with the case. The draconian consequences of this should
be kept in mind, as the very existence of a time limit for appeal may de facto preclude
the appellant from filing a new appeal and thus deprive him or her of his or her
right to challenge the decision under appeal.57
Accordingly, despite the fact that Art. R48(3) indicates that an additional deadline 31
can be granted “one time only”, it is submitted that the CAS Court Office can adopt

51 Cf. Art. 52(3).

52 Cf. Art. R51.
53 Cf., e.g., CAS 2011/A/2568, Raja Club Athletic v. FC Chiasso & Iajour Mouhssine, Award of 28
June 2012, paras. 5–8.
54 In accordance with Art. R31(5), the exhibits attached to the statement of appeal can be sent to
the CAS Court Office by email, “provided they are listed and that each exhibit can be clearly
identified”.
55 See the explanations provided on the CAS website, under the E-filing tab: <http://www.tas-cas.
org/en/e-filing/e-filing.html>, where it is also specified that the service can only be used if
all parties agree to it. On the e-filing service, see also Stocker, pp. 112–113.
56 Cf. Mavromati/Reeb, Art. R48, para. 86.
57 Cf. Art. R49, paras. 21–23 below.
 1596 Arbitration in Switzerland – The Practitioner’s Guide

a non-formalistic approach58 in order to afford the appellant an adequate opportunity

to remedy any deficiencies in the statement of appeal, by extending, where necessary,
the additional deadline in accordance with Art. R32.59 Such an extension may be
necessary, for instance, with respect to the payment of the Court Office fee, due to
the difficulties that may be caused by the existing payments regulations in certain
countries. The appellant should in any event ask for the extension of the additional
deadline before its expiry.60 That being said, the possibility to complete the statement
of appeal should not allow the appellant to substantively change the nature or scope
of its appeal, for instance by indicating an additional respondent.61
32 Finally, it is important to note, as the CAS Court Office normally points out in its letter
setting the additional deadline, that the granting of this deadline does not extend the
time limit for the filing of the appeal brief (which is due within ten days following
the expiry of the time limit for appeal).62 If the appellant needs such an extension
then he or she must file a specific request, again taking care to do so before the
expiry of the time limit in question (to be calculated in accordance with Art. R51).

58 As the Panel put it in CAS 2009/A/1940, BAP v. FIBA & SBP, Award of 7 April 2010, para. 10.11:
“the arbitration should not be summarily dismissed in zealous adherence to rigid formalism.
It is the function and goal of any arbitral body, including this Panel, to resolve differences and
disputes and to restore harmony to factional discord within sports organisations”.
59 Contra – albeit confusingly referring to the “CAS practice to grant an additional deadline”
even though this is expressly codified in Art. R48(3) (and the ‘practice’ should then be, in the
specific cases where this may be necessary, to grant a further extension in accordance with
Art. R32) – Mavromati/Reeb, Art. R48, paras. 88–89.
60 Cf. Art. R32(2).
61 For a case where this point was argued by one of the Respondents but found by the Panel not
to apply, cf. CAS 2015/A/4071, F. v. B. & C. & A., Award of 25 May 2016, paras. 98–106.
62 See also Mavromati/Reeb, Art. R48, para. 55.
 1597

Article R49: Time Limit for Appeal

In the absence of a time limit set in the statutes or regulations of the federation,
association or sports-related body concerned, or in a previous agreement, the time
limit for appeal shall be twenty-one days from the receipt of the decision appealed
against. The Division President shall not initiate a procedure if the statement of
appeal is, on its face, late and shall so notify the person who filed the document.
When a procedure is initiated, a party may request the Division President or the
President of the Panel, if a Panel has been already constituted, to terminate it if
the statement of appeal is late. The Division President or the President of the Panel
renders his decision after considering any submission made by the other parties.

I PURPOSE OF THE PROVISION

Article R49 sets out the time limit within which, unless otherwise provided in the 1
applicable regulations or agreed by the parties, an appeal may be brought before the
CAS against final decisions taken by federations or other sports-governing bodies.1
Art. R49’s time limit for appeal is to be distinguished from the time limit to file the
appeal brief under Art. R51 of the Code. Art. R49 prescribes that the appeal must be
lodged, by filing a (simple) statement of appeal,2 prior to the expiry of the applicable
limitation period, whereas Art. R51 specifies the (additional) time limit for filing the
grounds for the appeal, which can be submitted by means of a subsequent brief.3
In the words of the CAS Panel in the NNZ v. IFNA case,4 “[t]ime limits are commonplace 2
in all kinds of fora. They contribute to legal certainty. They enable decision-makers to
know precisely when they can be confident that their decisions will not be challenged.
They ensure that any Tribunal seized of a dispute over a decision can resolve it when
the issues and evidence are still fresh and do not have to adjudicate upon stale claims.
Such is the perceptible and valuable purpose of Art. R49 of the CAS Code”.
Article R49 and more generally the very existence, nature and effects of a time 3
limit for appeal are among the distinctive features of CAS appeals proceedings (II.).
Accordingly, the manner in which this time limit is to be calculated (III.), but also
the question whether it can be extended or reinstated (IV.) and the consequences of
a decision by the CAS on compliance with it (V.), are all topics that deserve careful
consideration. Further, it bears to note that the relevance of the time limit for appeal
in cases where the appellant claims that the decision under challenge is null and
void is a matter of debate (VI.).

II NATURE OF THE TIME LIMIT FOR APPEAL

According to its express wording (“[i]n the absence of a time limit set in the statutes 4
or regulations of the federation, association or sports-related body concerned […]”),

1 Cf. Art. R47.

2 Cf. Art. R48(1).
3 Cf. Art. R51(1).
4 CAS 2010/A/2315, Netball New Zealand v. IFNA, Award of 27 May 2011, para. 7.11 (emphasis
added).
 1598 Arbitration in Switzerland – The Practitioner’s Guide

Art. R49 is meant to apply only as a default rule, when the regulations of the sports-
organization that issued the decision under appeal contain no specific provision on
the applicable time limit.5 As a matter of fact, sports regulations often do contain
provisions dealing with the time limit for appeal before CAS, and there are significant
differences in the length of such time limits. While a number of federations, such as
FIFA, have integrated the 21-day limit of the CAS Code into their own regulations,6
many others have provided for different time limits, in most cases ranging from ten
days to one month.7 Thus, prospective appellants must check the relevant regulations
carefully, in particular in view of the drastic consequences of missing the time limit
for appeal. Indeed, as discussed in more detail below, the time limit under Art. R49
is to be considered as “preclusive” in nature,8 which means that a failure to comply
with it will result in the loss of the appellant’s claim.
5 A (logical) consequence of this is that compliance with the time limit for appeal should
be reviewed by the CAS ex officio, in spite of the view to the contrary (impliedly)
taken by certain panels.9 Since the 2013 Code revision, Art. R49 does provide that
“the Division President shall not initiate a procedure if the statement of appeal is,
on its face, late”, which is consistent with the idea of ex officio review.
6 In view of the foregoing, it is of the utmost importance for prospective appellants
to identify and be sure to apply correctly the rules governing the calculation of the
time limit for appeal before the CAS.

5 Art. R49 also contemplates the possibility of a previous (ad hoc) agreement between the parties
as to the time limit for appeal, which rarely occurs in practice. On the subsidiary character of
the 21-day time limit set out in Art. R49, cf., ex multis, CAS 2001/A/318, V. v. Fédération Cycliste
Suisse (Swiss Cycling), Award of 23 April 2001, para. 5, or CAS 2002/A/403, Pantani v. UCI &
CAS 2002/A/408, FCI v. UCI, Award of 12 March 2003, para. 84; see also Mavromati/Reeb, Art.
R49, paras. 90–91. For a recent case where the regulations did not provide for a time limit to
appeal, see CAS 2013/A/3148, PAASF v. FIAS & Vasily Shestakov, Award of 5 September 2014,
at para. 122.
6 Art. 58(1) FIFA Statutes.
7 Cf., e.g., Art. 62(3) UEFA Statutes 2016 (10 days); Art. 13.2.5.1 UCI Cycling Regulations, Part. 14
(2015) (1 month); Art. 42.15 IAAF Competition Rules 2016–2017 (45 days). See also the other
examples cited in Mavromati/Reeb, Art. R49, para. 91. As discussed in connection with Art.
R47, when a federation’s rules provide for different time limits for appeal, depending on the
activities they govern (e.g., a federation’s anti-doping rules as opposed to its statutes or general
regulations), the relevant time limit for appeal will be that set out in the specific regulations
applying to the merits of the dispute brought before the CAS (cf. Art. R47(1)). On the scope
and limits of party autonomy with respect to the time limit for appeal against sports-governing
bodies’ decisions, in particular in relation to the nature of such time limit (a question which
we only address briefly here), cf. Haas, CAS Bull. 2011/2, pp. 6–9.
8 Cf. paras. 24–26 below.
9 Cf., e.g., CAS 2002/A/432, Demetis v. FINA, Award of 27 May 2003, para. 7.4, CAS Digest
III, p. 422; CAS 2005/A/971, RBF v. IBF, Award of 31 January 2006, para. 6.2.1. Thus, if one
of the parties brings forward facts in the case which show that the time limit for appeal has
elapsed, the CAS should review the question of its own motion, rather than doing so only
if the respondent(s) raise(s) an objection to that effect (in this sense, cf. CAS 2004/A/574,
Associação Portuguesa de Desportos v. Club Valencia C.F. S.A.D., Award of 15 September 2004,
para. 74; CAS 2013/A/3135, PAS Giannina 1966 v. Stéphane Demol, Award of 3 April 2014,
para. 27, referring to CAS 2006/A/1168, Nathan Baggaley v. International Canoe Federation,
Award of 29 December 2006, para. 80). This does not mean that CAS panels must ascertain the
relevant facts ex officio. The facts are to be adduced by the parties, and the burden of proving
compliance with the applicable time limit normally lies with the party bringing an appeal (cf.
Haas, CAS Bull. 2011/2, p. 6). See also Mavromati/Reeb, Art. R49, para. 100.
Article R49 CAS Code – Rigozzi/Hasler 1599

III CALCULATION OF THE TIME LIMIT FOR APPEAL UNDER

ARTICLE R49

A Applicable Law

CAS jurisprudence shows that questions relating to the calculation of the time limit 7
under Art. R49 are generally decided according to Swiss law.10 However, the reasons
given by CAS panels to apply Swiss law to these issues are not entirely consistent.
In some decisions, Swiss law was applied on the ground that it was the law applic-
able to the merits of the dispute, which is often the case, in particular when the
sports-governing body having rendered the decision under appeal is domiciled in
Switzerland.11 However, this approach will result in the applicability of a different
national law every time the decision under appeal is rendered by a sports-governing
body domiciled outside Switzerland. Other CAS panels have referred to Swiss law
as the lex arbitri (which will always be the case in CAS proceedings, by operation
of Art. R28).12 We submit that the latter approach is preferable and should be
followed systematically as it leads to a uniform result, especially because it allows
for the application of the European Convention on the Calculation of Time Limits
(ECCTL), to which Switzerland is a party.13 The ECCTL sets out clear rules,14 which
are particularly well-suited for proceedings in an international context.
The questions that arise most often in connection with the calculation of the time 8
limit for appeal relate to the determination of the correct starting point for the
calculation (dies a quo) (B.), as well as the moment when the time limit expires
(dies ad quem) and what exactly needs to be done by then (C.), but also the exact
manner in which the time limit should be calculated, including whether and how
official holidays and other non-working days are to be taken into account (B. and C.).

10 See also the discussion in Mavromati/Reeb, Art. R49, paras. 96–97.

11 See, e.g., CAS 2006/A/1065, W. v. FEI, Termination Order of 20 June 2006.
12 Cf., e.g., CAS 2002/A/403, Pantani v. UCI & CAS 2002/A/408, FCI v. UCI, Award of 12 March
2003, paras. 86–87; CAS 2010/A/2315, Netball New Zealand v. IFNA, Award of 27 May 2011,
para. 7.6; CAS 2010/A/2401, Bulgarian Boxing Federation v. European Boxing Confederation,
Award of 7 June 2011, paras. 7.12–7.13 (referring to Swiss law as the “lex fori”).
13 European Convention on the Calculation of Time Limits of 16 May 1972, in force in Swit-
zerland since 28 April 1983 (SR 0.221.122.3), available at: <http://www.admin.ch/ch/f/
rs/0_221_122_3/index.html>. For a case where the Panel expressly referred to the ECCTL (in
connection with the calculation of the time limit to submit a respondent’s answer), see CAS
2014/A/3489 and 2014/3490, S. E. Palmeiras v. D. Filho, and Panathinaikos FC; Panathinaikos
FC v. S. E. Palmeiras, D. Filho and FIFA, Award of 10 November 2014, para. 119.
14 The basic rules for the calculation of time limits pursuant to the ECCTL (Arts. 3, 4 and 5) are
the following: (i) time-limits expressed in days, weeks, months or years shall run from the
dies a quo at midnight to the dies ad quem at midnight; (ii) where a time limit is expressed
in weeks the dies ad quem shall be the day of the last week whose name corresponds to that
of the dies a quo; (iii) where a time limit is expressed in months or in years the dies ad quem
shall be the day of the last month or of the last year whose date corresponds to that of the
dies a quo or, when there is no corresponding date, the last day of the last month; (iv) where
a time limit is expressed in months and days or fractions of months, whole months shall be
counted first, and afterwards the days or fractions of months; for the purpose of calculating
fractions of months, a month shall be deemed to consist of 30 days; (v) Saturdays, Sundays and
official holidays shall count when calculating a time limit. However, where the dies ad quem
of a time limit before the expiry of which an act shall be performed is a Saturday, a Sunday,
an official holiday or a day which shall be considered as an official holiday, the time limit shall
be extended to include the first working day thereafter.
 1600 Arbitration in Switzerland – The Practitioner’s Guide

B The Dies a Quo and Related Issues

9 To calculate the applicable time limit for appeal, the appellant first needs to know
how to determine the point in time, that is, the triggering event, from which the
time limit starts to run. Art. R49 provides that the time limit for appeal runs “from
the receipt of the decision appealed against”. Under Swiss law, a decision is deemed
to have been received (or as the case may be, notified) from the moment it enters
the so-called “sphere of control” of its addressee or of a representative, agent or
other person authorized to receive it on the addressee’s behalf.15 According to CAS
case law, “as a basic rule, a decision or other legally relevant statement are notified,
if a person had the opportunity to obtain knowledge of the content irrespective of
whether such a person has in fact obtained knowledge. Hence, the relevant point
in time is when a person receives the decision and not when it obtains actual
knowledge of its content”.16 This may mean that depending on the circumstances,
even if the decision is received by the appellant late in the evening or during the
week-end (e.g., by fax, assuming the applicable rules allow for notification by this
means), provided he or she did have a (reasonable) opportunity to gain knowledge
of its contents, the decision will be deemed to have been notified at that time.17
10 On the other hand, in cases where a decision is formally notified after the appellant
has already had an opportunity to find out its contents – for instance, because the
decision or at least its substance has become available on the internet – formal
notification will remain the relevant starting point for the purposes of the time limit
for appeal. Thus, any specific requirements as to the manner of notification in the
applicable regulations (e.g., a provision requiring the use of registered mail with
acknowledgment of receipt) should be complied with.18 That being said, while such
requirements should be interpreted strictly in order to preserve legal certainty and
the parties’ procedural rights,19 appellants should not be allowed to invoke them
abusively so as to artificially extend the time limit for appeal.20 Accordingly, there

15 BGE 118 II 42 para. 3b. Cf. also Haas, CAS Bull. 2011/2, p. 11; see further Mavromati/Reeb, Art.
R49, para. 98, with regard to the case law concerning appeals against FIFA decisions rendered
in proceedings where a national association acted as the representative of a player.
16 CAS 2006/A/1153, WADA v. Assis & FPF, Award of 24 January 2007, para. 40, referring to CAS
2004/A/574, Associação Portuguesa de Desportos v. Club Valencia C.F. S.A.D., Award of 15
September 2004, para. 60, where this principle was said to be “recognised unanimously by the
Swiss legal doctrine and the Swiss Tribunal Federal”.
17 Cf. CAS 2004/A/574, Associação Portuguesa de Desportos v. Club Valencia C.F. S.A.D., Award
of 15 September 2004, paras. 57–66 (where the applicable rules provided for notification by
fax); cf. also, by contrast, CAS 2010/A/2401, Bulgarian Boxing Federation v. European Boxing
Confederation, Award of 7 June 2011, paras. 7.14–7.15.
18 Cf., e.g., Art. 277 UCI ADR (no longer in force). In CAS 2008/A/1555 & 2009/A/1779, UCI v.
Kashechkin & CFRK / Kashechkin v. CFRK & UCI, Award of 10 August 2009, paras. 77–80, the
Panel observed in passing that while an irregularity in the notification of the decision (which,
in casu, had been sent by the national federation to counsel for the appellant by fax, rather
than by registered letter as then required by the UCI Rules) may have affected the running of
time with respect to the time limit for appeal, it did not operate to invalidate the decision per
se, as pleaded by the rider. Cf. also CAS 2004/A/635, RCD Espanyol de Barcelona SAD v. Club
Atlético Velez Sarsfield, Award of 27 January 2005, para. 50. More recently, see CAS 2012/A/2997,
NADA v. Y, Award of 19 July 2013, para. 10.
19 Or, as the Panel put it in CAS 2007/A/1396 & 1402, WADA & UCI v. Valverde & RFEC, Preliminary
Award of 10 July 2008, para. 53: “in the interest of justice and proper proceedings”.
20 Cf., e.g., CAS 2008/A/1528, UCI v. Caruso & FCI and CAS 2008/A/1546, CONI v. Caruso & FCI,
Award of 21 January 2009, paras. 7.5.-7.7. The correct approach in those instances where receipt
Article R49 CAS Code – Rigozzi/Hasler 1601

is CAS case law to the effect that potential appellants may have to make good faith
efforts to inquire about a decision if, in the circumstances, they are (or should be)
aware of its existence, even though the decision has not been notified to them in
accordance with the applicable rules.21 We submit that this should apply only in
truly exceptional cases, namely when, under the specific circumstances, it would be
abusive to rely on formal notification. In any event, prior awareness should not be
presumed and the burden of proof in that respect lies with the party asserting it.22
The reference to a “decision” in Art. R49 should be understood to mean the complete 11
decision, including the reasons for it.23 However, subject to overriding rules to the
contrary,24 a party may choose to start appeal proceedings upon receipt of (only)
the operative part, if the latter is notified prior to the issuance of the reasons,25 in
particular for the purpose of seeking an immediate staying order.26 This will have
no influence on the time limit to file the appeal brief, which is to be computed from
the moment in which the time limit to file the statement of appeal (against the
“full” decision) expires, and not from the date on which the statement of appeal is
actually filed with the CAS.27

of notification of the decision on a certain date is disputed will depend on the circumstances
of the case. Since, as pointed out by Haas, the possibility that the running of time for the
appeal may be delayed by an irregularity in the (or lack of) notification can impose a heavy
burden on the other parties affected by the decision, the extent to which such delay should be
admitted will likely have to be determined by reference to the point in time when, under the
circumstances, “the other parties involved were legitimately able to rely on the (federation’s)
measure in question no longer being appealed”(Haas, CAS Bull. 2011/2, p. 13).
21 Cf., e.g., CAS 2007/A/1413, WADA v. FIG & Vysotskaya, Award of 20 June 2008, paras. 54–62;
or (finding that such a requirement did not apply in the circumstances), CAS 2009/A/1759,
FINA v. Jaben & ISA and CAS 2009/A/1778, WADA v. Jaben & ISA, Award of 3 July 2009,
paras. II.4.10-II.4.19 (noting that the appellant in question, WADA, had not been a party to the
proceedings from which the decision under challenge originated). See also CAS 2014/A/3485,
WADA v. Daria Goltsova & IWF, Award of 12 August 2014, para. 22. See also Pellaux, CAS Bull.
2016/2, paras. 19–20.
22 Cf. CAS 2007/A/1413, WADA v. FIG & Ms. N. Vysotskaya, Award of 20 June 2008, para. 60;
cf. also CAS 2007/A/1444 & CAS 2008/A/1465, UCI v. Iban Mayo & RFEC, Award of 11 August
2008, para. 86.
23 See, e.g., CAS 2002/A/403, Pantani v. UCI & CAS 2002/A/408, FCI v. UCI, Award of 12 March
2003, paras. 97–98; CAS 2007/A/1322, Giannini, Giannini & Cardinale v. S.C. Fotbal Club 2005
S.A., Award of 19 September 2007, para. 7.2. See also CAS 2010/A/2315, Netball New Zealand
v. IFNA, Award of 27 May 2011, para. 7.6; CAS 2013/A/3361, Dominique Blake v. JADCO,
Award of 2 May 2014, para. 6.7. More generally on the concept of appealable decision, cf.,
e.g., Bernasconi, pp. 261–274, and CAS 2010/A/2401, Bulgarian Boxing Federation v. European
Boxing Confederation, Award of 7 June 2011, paras. 7.8–7.10 (summarizing the CAS case law
in point). Cf. also Art. R47, paras. 29–30.
24 See the discussion of the FIFA Rules Governing the Proceedings before the Players’ Status
Committee and the Dispute Resolution Chamber (Art. 15) and the FIFA Disciplinary Code (Art.
116) in the commentary on Art. R47 above.
25 Cf., e.g., CAS 2007/A/1322, Giannini, Giannini & Cardinale v. S.C. Fotbal Club 2005 S.A., Award
of 19 September 2007, para. 7.3. Haas, CAS Bull. 2011/2, p. 11, makes this statement under the
proviso that any express rules to the contrary (i.e., requiring for appeals to be brought only
upon receipt of the reasoned decision) may have to be deviated from in those cases where the
“decision already has an adverse effect on the person concerned before the reasons for the
decision are issued”.
26 Cf. Arts. R37 and R48(1).
27 Cf. Art. R51, first sentence (“[w]ithin ten days following the expiry of the time limit for the
appeal…”).
 1602 Arbitration in Switzerland – The Practitioner’s Guide

12 All this being said, there is no uniform solution in the CAS case law on the question
of the exact starting point for the purpose of calculating the time limit for appeal
under Art. R49. Although some (isolated) CAS awards have held that the time limit
begins to run on the day of service of the decision under appeal,28 it is submitted
that, unless the applicable regulations provide otherwise, the starting point should
be the day after that on which notification was received,29 as contemplated by Art.
3(1) of the ECCTL. This is explicitly provided in Art. R32(1) for the cases where Art.
R49 applies directly (because the applicable regulations do not stipulate a specific
time limit for appeal),30 but should apply also in cases where the relevant regulations
provide for a time limit to appeal without specifying when it starts.31 In line with
this position, some CAS panels have referred to Art. R32(1)’s rationale, namely
that the appellant should have the full time limit at his or her disposal regardless of
the time when the decision was notified to him or her, where the regulations were
silent on this point.32
13 When, as is the case in anti-doping matters, the sports regulations also provide
for a right to appeal by sports-governing bodies that did not participate in the first
instance proceedings, they usually stipulate that the time limit for this purpose
shall begin to run only upon receipt by the relevant sports-governing body of the
complete case file.33
14 Another situation that may occasionally arise is that where the addressee of a final
decision requests the relevant sports-governing body to reconsider the decision.
Although as a general rule, a mere request for reconsideration does not have the

28 CAS 2002/A/399, Poll v. FINA, Award of 31 January 2003.

29 CAS 2008/A/1705, Grasshopper v. Alianza Lima, Award of 18 June 2009, paras. 33–34; CAS
2008/A/1583, Sport Lisboa e Benfica Futebol SAD v. UEFA & FC Porto Futebol SAD / CAS
2008/A/1584, Vitoria Sport Clube de Guimaraes v. UEFA & FC Porto Futebol SAD, Award of 15
September 2008, para. 7; CAS 2007/A/1364, WADA v. FAW and James, Award of 21 December
2007, paras. 6.1–6.4.
30 Art. R32(1) ab initio, providing that “[t]he time limits fixed under this Code shall begin from
the day after that on which notification by the CAS is received”. Cf., e.g., CAS 2009/A/1759,
FINA v. Jaben & ISA and CAS 2009/A/1778, WADA v. Jaben & ISA, Award of 13 July 2009,
paras. 3.2–3.6; CAS 1006/A/1176, Belarus Football Federation v. UEFA & FAI Belarus, Award of
14 March 2007, para. 7.2.
31 For a case where the Sole Arbitrator found that the applicable rules determined both the time
limit for appeal and its exact starting point in time, cf. CAS 2014/A/3611, Real Madrid FC v.
FIFA, Award of 27 February 2015, paras. 41–65, with regard to (then) Art. 67(1) FIFA Statutes
(now Art. 58(1)) and Annex 2, art. 9, para. 2 of the FIFA RSTP.
32 Cf., e.g., CAS 2008/A/1705, Grasshopper v. Alianza Lima, Award of 18 June 2009, para. 34; cf.
also Haas, CAS Bull. 2011/2, p. 12.
33 The relevant regulations will normally also set out a time limit within which the file can be
requested. An example of such rules can be found, in Art. 12.3 of the FEI Equine Anti-doping
and Controlled Medication Rules (2016), fixing a time limit of 10 days, and in Art. 13.2.5.2 of
the UCI Anti-Doping Rules (UCI ADR, 2015 version), fixing a time limit of 15 days. In a case
applying the UCI ADR (the relevant provision being Art. 334 at the time), the Panel found
that the time limit for appeal, as far as the UCI was concerned, had begun to run only once
a document that was missing from the case file had been received by the UCI, after the latter
had requested it from the national federation that had issued the decision (TAS 2010/A/2288,
UCI v. Giunti, FCI & CONI, Award of 30 May 2011, paras. 5–10). Thus, CAS Panels tend to apply
this requirement strictly, meaning that the complete file – not just a file that is substantially
complete – must have been delivered, if requested, to the relevant anti-doping organization
(cf., e.g., CAS 2007/A/1444 & CAS 2008/A/1465, UCI v. Mayo Diez & RFEC, Award of 11 August
2008, para. 85). See also CAS 2013/A/3112, WADA v. Lada Chernova & RUSADA, Award of 16
June 2014, para. 56.
Article R49 CAS Code – Rigozzi/Hasler 1603

effect of suspending the time limit for appeal,34 in some specific cases the CAS has
acknowledged (by reference to the principle of good faith) that the dies a quo had
been delayed by discussions between the parties, as long as such discussions could
reasonably be understood to allow for the possibility of a reconsideration of the
decision in question.35 Of course, a new time limit will start running if the application
for reconsideration is entertained and a new decision (confirming or amending the
previous one) is issued as a result.

C The Dies ad Quem and the Act(s) to be Accomplished within the

Time Limit for Appeal

Article R49 does not state how to determine when exactly the time limit for appeal 15
expires (the dies ad quem).36 Art. 3(1) ECCTL provides that time limits expressed in
days, weeks, months or years shall run from the dies a quo at midnight to the dies
ad quem at midnight. Art. R32(1) encapsulates the same solution, stipulating that a
time limit will be met if the relevant communication is sent “before midnight, […] on
the last day on which [the time limit expires]”. Accordingly, if a decision is notified
on 31 March, the dies ad quem under Art. R49 would be 21 April at midnight.37 But
what if 21 April falls on a non-working day?
Article R49 also does not specify how official holidays and non-working days are 16
to be taken into account when calculating the time limit for appeal. Art. R32(1)
(in line with Art. 5 ECCTL) directs that holidays and non-working days should be
included in the calculation of the time limit (i.e., counted as normal days), and that
where the dies ad quem falls on a holiday or non-working day, the time limit is to
be extended so as to include the first working day thereafter. Art. R32(1) is directly
applicable when the relevant time limit is the one of Art. R49, but can also be (and
has indeed been) applied by analogy in cases where the relevant regulations contain
a special time limit but are silent on this point.38
The next (logical) question is which country’s official holidays and other non-working 17
days should be referred to in order to determine the date (and time) of the dies ad
quem. Until the Code’s latest (2017) revision, Art. R32(1) (as amended in 2013)

34 CAS 2010/A/2315, Netball New Zealand v. IFNA, Award of 27 May 2011, para. 7.8; see also
Haas, CAS Bull. 2011/2, p. 13.
35 CAS 2003/A/443, Slovak Karate Union v. World Karate Federation, Award of 31 July 2003,
para. 7; CAS 2002/A/362, IAAF v. CAF & Zubek, Award of 27 August 2002. A party shall not
be allowed to artificially extend the time limit for appeal by sending repeated requests for
clarification and/or interpretation of the decision (for instance so as to make the dispute fall
under the jurisdiction ratione temporis of the CAS ad Hoc Division; see most recently CAS-OG
16/022, COC & CCF v. UCI, Award of 9 August 2016).
36 Cf. Art. 2 ECCTL.
37 If the applicable regulations provided for a “one month” time limit (replacing Art. R49’s 21
days), the time limit for appeal would expire, in this example, on 30 April. Indeed, according
to Art. 4(2) ECCTL, “[w]here a time-limit is expressed in months […] the dies ad quem shall
be the day of the last month […] whose date corresponds to that of the dies a quo or, when
there is no corresponding date, the last day of the last month”. See also the example provided
in Mavromati/Reeb, Art. R49, p. 437 (showing how to calculate a 21-day time limit spanning
over the Christmas and New Year period pursuant to Art. R49).
38 Cf., e.g., CAS 2004/A/574, Associaçao Portuguesa de Desportos v. Valencia C.F. S.A.D., Award of
15 September 2004, paras. 68–69. Cf. also CAS 2002/A/399, Poll v. FINA, Award of 31 January
2003, para. 7.3.
 1604 Arbitration in Switzerland – The Practitioner’s Guide

stated that the relevant country was that “where the notification is to be made”. In
the previous edition of this commentary, it was submitted that, given the ambiguity
of Art. R32(1)’s language as just quoted, “when the applicable rules contain no
specific provision, official holidays and non-working days in Switzerland[, i.e. the
country in which the statement of appeal is to be notified (and the place of arbitra-
tion)], as well as those in the country where the appellant (or, as the case may be,
his or her counsel/representative) is domiciled should be taken into account”.39 The
subsequent CAS case law demonstrated that the meaning of Art. R32(1)’s reference
to the country “where the notification is to be made” was indeed far from clear.40
18 As revised in 2017, Art. R32(1) now provides that the “[t]ime limits fixed under th[e]
Code are respected if the communications by the parties are sent before midnight,
time of the location of their own domicile or, if represented, of the domicile of their
main legal representative, on the last day on which such time limits expire” (emphasis
added). While one can debate on the wisdom of opting for a solution which entails
that the country of reference may well be different for each party to the dispute, Art.
R32(1)’s current wording has the undeniable advantage that it finally provides, in
clear terms, the necessary elements to determine the exact date (and time) of expiry
of the time limit to appeal under Art. R49. Art. R32(1)’s provision supplements
Art. R49 whenever the latter applies because the relevant rules do not provide for
a specific time limit for appeal, but also when the rules do specify the time limit,
but do not provide how and which holidays or non-working days should be taken
into account in calculating the dies ad quem.
19 As to the question of what exactly the appellant must do, on the dies ad quem, to
comply with the time limit for appeal, reference must be made to Art. R31(3) of the
Code. According to the latest (2016) version of this provision, while the statement
of appeal must be filed “by courier delivery”41 with the CAS Court Office, if it is
transmitted before midnight on the dies ad quem “by facsimile [or email], the filing
is valid upon receipt of the facsimile [or email] by the CAS Court Office provided
that the [statement of appeal is] also filed by courier within the first subsequent
business day”.42 It should also be noted that since the 2010 Code revision, the exhibits
accompanying the statement of appeal need not be filed by “courier delivery”. As

39 Rigozzi/Hasler, at Art. R49, para. 16.

40 See in particular CAS 2013/A/3274, Mads Glasner v. FINA, Award of 31 January 2014, para.
52, and CAS 2016/A/4615, A. v. WADA, Award of 4 November 2016, paras. 6.1–6.11.
41 As submitted in the previous edition of this commentary (at Art. R49, para. 15), the reference to
“courier delivery” also allows for the use of registered mail, the important point being that the
means of delivery used by the appellant allows him or her to prove that and when the statement
was sent to the CAS, whether in printed form or “saved on digital medium” (as permitted
by Art. R31(3)). On the appellant’s burden of proof as to the timely filing of the statement of
appeal, see the above commentary of Noth/Haas, para. 7 at Art. R32. On what constitutes a
“digital medium” within the meaning of Art. R31(3), see the commentary of Noth/Haas, para.
8 at Art. R31.
42 Note that, taken verbatim, the English version of this provision is somewhat ambiguous, to
the extent it stipulates that: “if […] transmitted in advance by facsimile or by electronic mail
[…], the filing is valid upon receipt of the facsimile or of the electronic mail by the CAS Court
Office provided that the written submission and its copies are also filed by courier within the
first subsequent business day of the relevant time limit […]”.Indeed, one may wonder whether
“the first subsequent business day of the relevant time limit” (emphasis added) must fall before
the expiry of the time limit. However, the French version of Art. R31(3), which is the prevailing
one in case of doubt (see Art. R69), clarifies that what is meant is “le premier jour ouvrable
suivant l’expiration du délai applicable” (emphasis added).
Article R49 CAS Code – Rigozzi/Hasler 1605

stated in Art. R31(5), exhibits “may be sent to the CAS Court Office by electronic
mail, provided that they are listed and that each exhibit can be clearly identified”.43

IV EXTENSION AND REINSTATEMENT OF THE TIME LIMIT TO

APPEAL

Article R32(2), which allows for the extension, in certain circumstances, of the time 20
limits set forth in the CAS Code’s procedural rules, unambiguously stipulates that
it does not apply to “the time limit for the filing of the statement of appeal”. Thus,
the time limit for the filing of the statement of appeal pursuant to Art. R49 cannot
be extended.
The question is whether it can be reinstated (restitué, wiederherstellt) and if so in 21
what circumstances. Even though the CAS Code is silent in this respect, the principle
of good faith, which also applies to arbitration proceedings,44 requires that an ap-
plication for the reinstatement of the time limit for appeal should be allowed where
(i) the appellant establishes to the hearing body’s satisfaction that he or she was
unable to act timely through no fault of his or her own and (ii) the request for
reinstatement is submitted, together with the statement of appeal, promptly after
the hindrance causing the appellant’s failure to comply with the applicable time
limit has ceased to exist or to deploy its effects.45
A specific question that may arise in this respect is how to deal with those instances 22
where the appellant’s failure to meet the time limit has been caused by the sports-
body that issued the decision.46 This may occur, for example, when the relevant
sports-body’s regulations are unclear as to whether the decision is subject to appeal
before the CAS,47 or, where there is a notice on the right to appeal accompanying
the decision, if that notice is erroneous or misleading.48 Although the relevant
jurisprudence is case- and rule-specific, it is submitted that the length of the time limit
in question should be taken into account in determining whether a reinstatement
should be allowed: the shorter the time limit for appeal, the more emphasis should
be placed on the sports-governing body’s duty to ensure that the time limit, as well
as any action(s) required on the part of the appellant within such time limit, are
stated and/or communicated clearly.49

43 On the meaning of this provision, see the above commentary on Art. R31; see also Mavromati/
Reeb, Art. R31, paras. 25–26.
44 Cf., e.g., BGer. 4A_600/2010 para. 4.2. See also Mavromati/Reeb, Art. R49, para. 101 in fine
(with reference to BGer. 4A_600/2010, according to which a breach of procedural good faith
can lead to the setting aside of the award).
45 Cf. Rigozzi, Délai d’appel, p. 264. These criteria are now reflected in Art. 148 ZPO; cf. also
Haas, CAS Bull. 2011/2, p. 12; Pellaux, para. 30.
46 Cf. Haas, CAS Bull. 2011/2, p. 10, for a more thorough analysis of this point.
47 Cf., finding that this was not the case, CAS 2009/A/1759, FINA v. Jaben & ISA and CAS
2009/A/1778, WADA v. Jaben & ISA, Award of 3 July 2009, paras. 1.1–1.15; CAS 2008/A/1658,
S.C. Fotbal Club Timisoara S.A. v. FIFA & RFF, Award of 13 July 2009, para. 100.
48 CAS 2009/A/1795, Obreja v. AIBA, Award of 25 September 2009, paras. 80–82; CAS 2008/A/1705,
Grasshopper v. Alianza Lima, Award of 18 June 2009, para. 30. For a case where the appellant
(unsuccessfully) contended that the absence of a notice on appeal and/or an indication of the
applicable time limits in the decision itself operated to extend the time limit for appeal, and the
ramifications of the principle of good faith in this context, cf. CAS 2011/A/2366, Sable Football
Club de Batie c. Fédération Camérounaise de Football, Award of 12 December 2011, paras. 48–70.
49 Cf. also Haas, CAS Bull. 2011/2, p. 14.
 1606 Arbitration in Switzerland – The Practitioner’s Guide

23 In this context, one could also wonder what would happen if the decision was
challenged before the state courts and the latter were to decline jurisdiction on the
ground that there is a valid arbitration agreement between the parties.50 In accordance
with Art. 182(2) PILS, since the CAS Code does not regulate this issue, it should
be decided by the panel. It is submitted that, as a matter of principle, CAS panels
should apply (by analogy) the rule contained in Art. 63(1) ZPO, which provides that
“[i]f an application that was withdrawn due to lack of jurisdiction or dismissed on
procedural grounds is brought again before the competent conciliation authority or
court within a month of its withdrawal or dismissal, it shall be deemed pending as
from the time when it was first brought”.51 The principle embodied in Art. 63(1) ZPO
should apply52 even if (i) the time limit applicable in the state court that declined
jurisdiction (for instance, the “one month” time limit applicable before the Swiss
courts for actions pursuant to Art. 75 CC) was longer than the relevant time limit
for appeal before the CAS (for instance, the 21-day time limit of Art. R49), and
(ii) the action in the state court was filed after the time limit for appeal applicable
before CAS had elapsed (for instance, 28 days from receipt of the decision under
appeal, in a case where Art. R49 applies before CAS). Even if it is true that this
would, in effect, allow the appellant party to obtain an extension of the time limit
for appeal, the fact remains that any other interpretation would deprive that party of
the possibility of bringing its claim and challenging CAS jurisdiction before the state
courts, a possibility which is expressly contemplated by both Art. 7 PILS and Art.
II NYC.53 Hence, unless it is established that the appellant brought the challenge in
the state courts solely in an attempt to cure his or her failure to meet the applicable
time limit for appeal before the CAS, or for any other abusive reason,54 a new time
limit 55 must be given irrespective of whether the state court declining jurisdiction was
seized within the time limit that would have been applicable before the CAS. That
said, to be on the safe side, prospective appellants are advised to ensure that any
challenge they bring before the courts is filed within the time limit that would be

50 Cf. Art. 7 PILS and Art. II NYC.

51 Prior to the enactment of the ZPO, the principle now embodied in its Art. 63 was found in Art.
139 CO, which the Swiss courts had progressively interpreted so as to cover various different
situations extending beyond its strict contractual scope, including with respect to appeals against
decisions issued by sports federations (cf. Bezirksgericht of Zurich, 1st Section, Galatasaray Sport
Kulübü v. FIFA, decision of 7 February 2005; CaS 2005, p. 258). For its part, the CAS has affirmed
the applicability of Art. 139 CO by analogy in appeals proceedings, and held that, in casu, this
provision did operate to “suspend” the relevant time limit for appeal (CAS 2008/A/1528, UCI
v. Caruso & FCI & CAS 2008/A/1546, CONI v. Caruso & FCI, Award of 21 January 2009, para.
7.12). For a case where the Supreme Court alluded to the possible application of Art. 63 ZPO
in arbitration matters, see BGer. 4A_628/2015 para. 2.4.4.1.
52 With the adjustment, it is submitted, that the new time limit should not be one month, as
provided in Art. 63(1) ZPO, but rather the same time limit as would have originally applied in
case of appeal before the CAS.
53 Hence, it is submitted that the majority of the panel in CAS 2005/A/953 (Dorthe v. IIHF) was
incorrect in holding that the expiry of the time limit for appeal under the relevant regulations
excluded the application of Art. 139 CO (the predecessor of Art. 63 ZPO) by analogy (Award of
6 March 2006, paras. 65–73). Contra: Mavromati/Reeb, Art. R49, para. 108 (without reference
to Art. 7 PILS and Art. II NYC).
54 Requesting an additional time limit could be abusive, e.g., when the challenging party, knowing
full well that there was an undisputable CAS arbitration agreement, has made a claim that
the CAS would not be able to afford an effective remedy, or would otherwise be incapable of
deciding in an unbiased manner.
55 Corresponding, it is submitted, to the one that would have originally applied in case of appeal
before the CAS.
Article R49 CAS Code – Rigozzi/Hasler 1607

applicable if the challenge were filed before the CAS, even if it is their claim that
any relevant CAS arbitration agreement is inoperative/invalid or does not apply in
the case at hand.56

V NATURE AND EFFECT OF A DECISION ON COMPLIANCE WITH THE

TIME LIMIT IN ARTICLE R49

Since the 2013 Code revision, Art. R49 provides that the Division President shall not 24
initiate a procedure if he or she finds that a statement of appeal is “on its face, late”
and that “[w]hen a procedure is initiated, a party may request the Division President
or the President of the Panel, if a Panel has already been constituted, to terminate
it if the statement of appeal is late”, in which case, “the Division President or the
President of the Panel renders his decision after considering any submission made
by the other parties”. In view of the importance of the decision at stake and since
the text of this provision may lend itself to different interpretations, we consider that
(i) prior to making his or her decision “on the face” of the statement of appeal, the
Division President should, where reasonable, draw the appellant’s attention to the
issue and allow him or her to provide any further information as may be useful for the
purposes of that decision within a short time limit (arguably 5 days by analogy with
Art. R48(3)), and (ii) where a procedure has been initiated, the Division President
or the President of the Panel should not just consider “any submission [as may have
been] made by the other parties” on the issue of the timeliness of the appeal, but
should invite them to submit observations further to the request for termination.
An important issue that, so far, has been dealt with in an inconsistent manner in 25
the case law is the nature of the decision rendered by the CAS when it finds that an
appeal has been filed out of time. In some such cases, the panel ruled that it had
“no jurisdiction to decide” the dispute at hand,57 while in others the (statement of)
appeal was deemed “inadmissible”.58 It is submitted that the correct consequence
of a failure to meet the time limit for appeal is that the appeal is dismissed on the
merits.59 As mentioned above, we consider that the time limit set out in Art. R49 is
to be treated as a “preclusive” time limit.60 This position is grounded in the answer
to the question whether the situation resulting from an untimely appeal should be
that the appellant’s claim can no longer be brought before the CAS (as opposed to
another judicial forum) or that it can no longer be raised at all. From this perspective,
it seems clear that the intent in adopting a time limit for appeal against decisions

56 Another possibility would be to file a statement of appeal with the CAS simply to toll the time
limit, requesting that the arbitration be stayed pending the state court’s decision on jurisdiction.
There is however no guarantee that the CAS will grant such a request.
57 Cf., e.g., CAS 2004/A/574, Associaçao Portuguesa de Desportos v. Club Valencia, Award of 15
September 2004.
58 Cf., e.g., CAS 2006/A/1065, Williams v. FEI, Termination order of 20 June 2006; CAS 2005/A/953,
Dorthe v. IIHF, Award of 6 March 2006; CAS 2011/A/2366, Sable Football Club de Batie v. Fédéra-
tion Camérounaise de Football, Award of 12 December 2011. More recently, CAS 2013/A/3135,
PAS Giannina 1966 v. Stéphane Demol, Award of 3 April 2014; CAS 2014/A/3611, Real Madrid
FC v. FIFA, Award of 27 February 2015.
59 CAS 2008/A/1528, UCI v. Caruso & FCI & CAS 2008/A/1546, CONI v. Caruso & FCI, Award of
21 January 2009, para. 7.9; Haas, CAS Bull. 2011/2, p. 4–5.
60 Under Swiss law, this is referred to, in French, as a délai de péremption (in German, Verwirkungs-
frist). Haas, CAS Bull. 2011/2, pp. 4–5; Oswald, Temps et droit, pp. 244–245; Rigozzi, Délai
d’appel, pp. 269–271. Cf. also Mavromati/Reeb, Art. R49, para. 100, approving this approach.
 1608 Arbitration in Switzerland – The Practitioner’s Guide

rendered by sports bodies, whether in the CAS Code or in the relevant sports regula-
tions, is not that of reserving any further available remedy, including before the state
courts, upon the expiry of that time limit. The purpose of a provision such as Art.
R49 is to ensure that any challenges to the validity of a decision issued by a sports
organization will be heard and determined swiftly, in a final and binding manner
and within the same time limit for all those that are subjected to it. In other words,
the time limit for “appeal” stipulated in Art. R49 (or any corresponding provisions in
the sports-bodies’ statutes or regulations) ought to be seen as the equivalent of the
preclusive time limit set out (as far as Swiss association law is concerned) in Art. 75
CC, upon the lapsing of which no actions can be brought against an association’s
decision.61 In a 2012 ruling, the Supreme Court discussed the approach outlined here
and held that it was “prima facie convincing”, adding that any other interpretation
would allow appellants to circumvent CAS arbitration agreements by simply waiting
for the time limit for appeal to expire.62
26 A ruling finding that the appeal was filed out of time puts an end to the arbitration by
(in effect) rejecting the appellant’s claim and is therefore a final, dispositive decision
(with prejudice) as to the underlying dispute. Irrespective of the terminology used
by the CAS, and whether such a decision is issued before or after the initiation of a
procedure, it will qualify as a final award, even when it is rendered in the form of
a simple (termination) order, or just as a letter.63 Thus, any such decision issued by
either a panel or the President of the Appeals Division may be challenged before the
Swiss Federal Supreme Court pursuant to Art. 190 PILS. In this connection, it bears
noting that despite the fact that such a ruling does in effect dismiss the claim and
therefore is not a decision on the arbitrators’ jurisdiction,64 the Supreme Court is likely
to consider, in light of its case law, that compliance with the time limit for appeal
constitutes a jurisdictional question for the purposes of the action to set aside.65

61 CAS 2005/A/953, Dorthe v. IIHF, Award of 6 March 2006, para. 55; CAS 2008/A/1528, UCI v.
Caruso & FCI & CAS 2008/A/1546, CONI v. Caruso & FCI, para. 7.9; Haas, CAS Bull. 2011/2, p.
4; Rigozzi, p. 271. The Swiss Federal Supreme Court has confirmed that, with respect to the
decisions adopted by Swiss sports associations, appeals before the CAS pursuant to Art. R47
of the Code are the equivalent of annulment proceedings in the Swiss courts under Art. 75 CC
(BGE 136 III 345 para. 2.2.1).
62 BGer. 4A_488/2011 para. 4.3.1. The same interpretation appears to be adopted by Mavromati/
Reeb, Art. R49, para. 100, and Fumagalli, CAS Bulletin 2016/1, pp. 24–25. See, however, Pellaux,
CAS Bull. 2016/2, paras. 65–70.
63 Here again, CAS practice has not been entirely consistent. In some instances the decision has
been made as an award (cf. CAS 2005/A/953, Dorthe v. IIHF, Award of 6 March 2006), while
in other cases it has been issued in the form of a simple “Termination Order” whereby the
proceedings were declared closed and struck from the CAS roll (cf. CAS 2006/A/1065, Williams
v. FEI, Termination order of 20 June 2006). See also Mavromati/Reeb, Art. R49, para. 105 in
fine, concurring.
64 Contrary to what was held by the Panel in CAS 2004/A/574, Associação Portuguesa de Desportos
v. Club Valencia C.F. S.A.D., Award of 15 September 2004, para. 56, namely that a finding that
the appeal was out of time would entail the extinction of the arbitration agreement, as it were,
ratione temporis (which would mean that, subject to any applicable preclusive time limits in
the relevant national law, the parties would then be free to bring their dispute before the state
courts).
65 BGer. 4P.284/1994; cf. also Kaufmann-Kohler/Rigozzi, para. 8.150. While dogmatically question-
able, this approach is pragmatically sound, as, given the limited grounds for appeal provided for
by Art. 190(2) PILS, it constitutes the only way to ensure that a party is not deprived of access
to justice. Significantly, this question was left open in the relevant passage of the Supreme
Court’s decision BGer. 4A_488/2011. See also Mavromati/Reeb, Art. R49, paras. 100–102 and
104–105, with further references.
Article R49 CAS Code – Rigozzi/Hasler 1609

VI RELEVANCE OF ARTICLE R49 WHEN THE APPELLANT CLAIMS

THAT THE DECISION UNDER APPEAL IS NULL AND VOID

It is well established under Swiss association law that decisions which are null 27
and void are challengeable at any point in time irrespective of the one-month time
limit of Art. 75 CC.66 One might ask whether the same principle applies also in
CAS appeals proceedings. Contrary to what a CAS panel held in a 2011 award,67 we
submit that when Swiss law applies to the merits, Art. R49 (or the corresponding
provisions in the applicable sports regulations) should not be interpreted in such a
way as to curtail the exercise of a substantive right that would still be available to
the challenging party were it not for the existence of the arbitration agreement.68 In
any event, Art. R49 should not prevent a party from requesting a declaration that
a given decision is null and void if the ground for nullity is so egregious that the
decision itself should be considered as constituting a violation of public policy.69

66 Riemer, para. 62 at Art. 75 CC; cf. also the discussion in CAS 1997/O/168, Fédération Française
des Sociétés d’Aviron et al. v. FISA, Award of 29 August 1997, para. 11, and, more recently, CAS
2013/A/3148, PAASF v. FIAS & Vasily Shestakov, Award of 5 September 2014, para. 137.
67 CAS 2011/A/2360&2392, English Chess Federation & Georgian Chess Federation v. FIDE, Award
of 3 July 2012, para. 96.
68 See also the Panel’s statement in CAS 2013/A/3148, PAASF v. FIAS & Vasily Shestakov, Award
of 5 September 2014, at para. 137, that “decisions which are null and void are challengeable
at any point in time irrespective of the 21-day time limit of Article R49” (although in that case
the Panel went on to find that the Appellant had failed to establish that the decision at issue
was null and void). The inherent problems and limitations in the ECF & GCF v. FIDE Panel’s
reasoning are apparent in the following passage of the Award: “[f]or sake of clarity, the Panel
underlines that in its view Article R49 of the CAS Code is not intended to alter the law applicable
on the merits. If the latter differentiates between decisions that are null and void and those that
are only ‘annullable’ this situation remains unchanged. Article R49 of the Code comes into play
at a different level. It only deals with the admissibility of the claim in front of the CAS and not
with the merits of a specific claim. Thus, in a case where an association’s decision were null
and void, it would not become materially valid merely because the time limit in R49 of the CAS
Code has expired. Instead, the member would only be procedurally barred from filing a principal
action against said decision. However, nothing would prevent the same member to avail himself
in a different context of the fact that the decision is null and void” (CAS 2011/A/2360&2392,
English Chess Federation & Georgian Chess Federation v. FIDE, Award of 3 July 2012, para. 97).
See also the critical views expressed by Del Fabro, SpuRt 2014, pp. 49–53, and Handschin, pp.
127–128. Contra (i.e., in favor of the view held by the ECF & GCE v. FIDE Panel): Fumagalli,
CAS Bulletin 2016/1, p. 25.
69 Mavromati/Reeb, Art. R49, para. 115; Haas, CAS Bull. 2011/2, p. 9; Oswald, Temps et droit, pp.
245–246. On this point, the Panel in ECF & GCF v. FIDE noted that “[whether] an exception to
this rule must be accepted and an appeal allowed after the expiry of the deadline if a decision
of an association violates international public policy can be left unanswered, since in the view
of the Panel no such violation has occurred in the case here” (CAS 2011/A/2360&2392, English
Chess Federation & Georgian Chess Federation v. FIDE, Award of 3 July 2012, para. 9).
 1610

Article R50: Number of Arbitrators

The appeal shall be submitted to a Panel of three arbitrators, unless the parties
have agreed to a Panel composed of a sole arbitrator or, in the absence of any
agreement between the parties regarding the number of arbitrators, the President
of the Division decides to submit the appeal to a sole arbitrator, taking into account
the circumstances of the case, including whether or not the Respondent pays its
share of the advance of costs within the time limit fixed by the CAS Court Office.
When two or more cases clearly involve the same issues, the President of the
Appeals Arbitration Division may invite the parties to agree to refer these cases
to the same Panel; failing any agreement between the parties, the President of the
Division shall decide.

I SCOPE AND PURPOSE OF THE PROVISION

1 Article R50 of the CAS Code deals with two distinct issues, namely the possible
alternatives in terms of the number of arbitrators composing CAS panels (II.) and the
circumstances in which two or more appeals can be heard by the same panel (III.).

II THREE MEMBER PANEL OR SOLE ARBITRATOR

2 Article R50(1) clarifies that in appeals proceedings, in the absence of an agreement

between the parties on the number of arbitrators, the CAS will proceed on the basis
of a presumption in favor of a panel composed of three arbitrators. Thus, unless
the arbitration agreement provides for a sole arbitrator (which to our knowledge
occurs very rarely in appeals cases)1 or the appellant requests the appointment of
a sole arbitrator in the statement of appeal, the arbitration will be set in motion
under the assumption that the case will be heard by a three-member panel. Indeed,
in accordance with Art. R48, the appellant is expected to nominate an arbitrator in
the statement of appeal.2
3 Nonetheless, Art. R50(1) enables the President of the Appeals Division to decide,
in light of “the circumstances of the case” that the dispute should be heard by a sole
arbitrator. Since the 2013 revision, the CAS Code specifies that whether or not the
Respondent has paid its share of the advance of costs will be one such circumstance.3
It is submitted that further relevant circumstances may be: (i) whether one of

1 Where such an agreement has been concluded, it will be for the Division President to appoint
the sole arbitrator (Art. R54(1)). Mavromati/Reeb, Art. R50, para. 13, indicate that, as a rule,
the Division President will do so within 10 days from receipt of the statement of appeal, unless
the parties agree on the appointee’s name, in which case the Division President will decide
whether to confirm the appointment in accordance with Art. R54(2).
2 Cf. Art. R48, para. 14 above. The time limit for the respondent to appoint its arbitrator is then
ten days after receipt of the statement of appeal (cf. Art. R53). In multiparty cases, Art. R54(5)
provides for the application of Art. R41 by analogy and mutatis mutandis (cf. Art. R54(5) and
Art. R41, paras. 5–8 above).
3 Cf. Mavromati/Reeb, Art. R50, para. 11, with reference to a CAS case where this criterion was
applied prior to the 2013 Code revision (CAS 2009/A/1801, Aris FC v. D. Bajevic, Award of 17
March 2010). For a recent case applying that rule, see CAS 2014/A/3472, WADA v. Marzena
Karpinska & Polish Weightlifting Federation, Award of 5 September 2014, paras. 20–27.
Article R50 CAS Code – Rigozzi/Hasler 1611

the parties has requested the appointment of a sole arbitrator, (ii) the degree of
complexity and (iii) the importance of the case, as well as, where applicable, (iv)
the amount in dispute.4 In practice, it is quite rare for the President of the Appeals
Division to decide that a case should be heard by a sole arbitrator where the par-
ties do not agree on that solution.5 By contrast, it is not so unusual for the parties
to agree after the filing of the statement of appeal that, in the circumstances, the
panel should be composed of a sole arbitrator.6 Whether it is made prior to or after
the commencement of the arbitration, the parties’ agreement on the number of
arbitrators is binding on the CAS. According to a recent ruling by the Swiss Supreme
Court,7 if the institution disregards that agreement, the parties must immediately
(i.e., without awaiting the final award) seek the annulment of the relevant decision
based on Art. 190(2)(a) PILS, failing which they will be deemed to have waived
the corresponding objection.8
The advantage of having the case heard by a sole arbitrator rather than a three- 4
member panel is that it saves time and reduces the costs of the proceedings.9 The
prospect of a faster resolution of the dispute will weigh heavily in the parties’ decision
where there is some urgency, for instance when an athlete’s or team’s eligibility to

4 Cf. also Mavromati/Reeb, Art. R48, para. 10, adding, by reference to the language used in the
1994 CAS Code, that the urgency of the matter is also a relevant circumstance, “to the extent
that the case can be resolved more rapidly through a sole arbitrator”.
5 Cf., e.g., CAS 2009/A/1846, Azovmash Mariupol Basketball v. van de Hare et al., Award of 30
November 2009, paras. 13 and 16, and, more recently, CAS 2015/A/3961, Samuel Inkoom v.
Andrew Evans & FIFA, Award of 10 December 2015, paras. 25–35. In CAS 2015/A/4095, B. &
M. v. FIVB, Award of 6 October 2015, paras. 14–23, the Division President decided to appoint
a sole arbitrator notwithstanding the Respondent’s objection, but confirmed the appointee
subsequently suggested by the Respondent. The grounds for the Division President’s decision
under Art. R50 are generally not communicated to the parties. According to Mavromati/Reeb,
Art. R50, para. 10, the Division President will be more likely to decide in favor of a sole arbitra-
tor in matters involving “lower amounts in dispute” and “as long as the case is simple – both
at a factual and at a legal level – and there is rich precedent on the issues to be approached”.
In line with this reasoning, cf, e.g., CAS 2012/A/2906, Alain Geiger v. EFA and Al Masry FC,
Award of 12 February 2013, paras. 17–20, where one of the parties disagreed with the (CAS
Court Office’s) proposal to appoint a sole arbitrator “in view of the [low] amount in dispute”,
and the Division President nonetheless decided to appoint a sole arbitrator. However, see CAS
2012/A/2972, Matti Helminen v. RLVB, Award of 23 July 2013, paras. 11–14, where the appellant
accepted the CAS Court Office’s proposal to appoint a sole arbitrator in order to contain costs,
but the respondent did not consent and the Division President decided the case should be
heard by a three member panel. See also CAS 2013/A/3358, Mersin Idman Yurdu Club v. FIFA,
Award of 25 April 2014, paras. 14–21, where the Respondent objected, “in view of the issue
of principle […] at stake” in that case, to the appointment of a sole arbitrator as suggested
by the Appellant, and the Division President nonetheless decided to appoint a sole arbitrator;
and CAS 2014/A/3765, Club X. v. D. & FIFA, Award of 5 June 2015, paras. 13–22, where FIFA
unsuccessfully objected to a sole arbitrator on the ground of the potential “substantial and
far-reaching consequences [of the case] in respect of future FIFA procedures”.
6 Cf., e.g., CAS 2015/A/4190, Mohammed Shafi Al Rumaithi v. FEI, Award of 1st March 2016,
paras. 17–19; CAS 2013/A/3274, Mads Glasner v. FINA, Award of 31 January 2014, para. 26;
CAS 2013/A/3075, WADA v. Laszlo Szabolcs & RADA, Award of 12 August 2013, paras. 3.1–3.26.
7 BGer. 4A_282/2013 para. 5.2, confirming the binding character of the parties’ agreement on
the number of arbitrators, meaning that the Code’s fallback rules in Art. R50 apply only absent
such an agreement.
8 BGer. 4A_282/2013 para. 5.3.1.
9 Cf., e.g., CAS 2007/A/1377, Rinaldi v. FINA, Award of 26 November 2007.
 1612 Arbitration in Switzerland – The Practitioner’s Guide

take part in a specific competition or tournament is at stake.10 The choice of a sole

arbitrator favors faster decisions by eliminating the need for tripartite exchanges
and deliberations. It should also be borne in mind that finding (a) date(s) where
three arbitrators are simultaneously available for a hearing (in addition to the parties
and their counsel) can be a source of significant delays. The appointment of a sole
arbitrator will naturally obviate such difficulties.11
5 On the other hand, the default presumption in favor of a three-member panel that
is embedded in Art. R50(1) reflects the importance (for the parties but also for the
sake of a well-articulated jurisprudence) of having legal questions considered from
different perspectives, it reduces the risk of mistakes, it allows each party or side to
the dispute to participate in the composition of the panel and, for all the foregoing
reasons, it generally contributes to the parties’ acceptance of the outcome.12

III CASES HEARD BY THE SAME PANEL – CONSOLIDATION

6 Although Art. R50(2) also appears under the heading “number of arbitrators”, it
deals with a different topic, namely the instances in which two or more cases may
be heard by the same panel.
7 Art. R50(2) only provides that two or more cases may be submitted to the same panel,
i.e. not consolidated within the meaning of Art. R52(4), entailing that, under Art.
R50(2), the cases will still “be treated separately”.13 The stated condition for Art. R50(2)
to apply is that the cases in question “clearly involve the same issues”. In practice,
this condition will of course be easily met when two or more parties bring an appeal
against the same decision, which will then generally also lead to the consolidation
of the cases (in line with Art. R52(4)).14 This happens relatively frequently in doping
disputes, as the WADA Code allows an appeal not only by the athlete(s) concerned but
also by the relevant international federation and by WADA itself.15 The same can occur

10 In this connection, it should also be recalled that the parties can request for the CAS to conduct
the proceedings in an expedited manner (cf. Art. R52(3)).
11 Moreover, a careful choice of the appointee arbitrator by the Division President will prevent
any time-consuming challenge procedures.
12 All these advantages of three-member panels over sole arbitrators were underscored by the
Supreme Court in its aforementioned decision, 4A_282/2013 para. 4 (discussed in para. 3
above).
13 Cf. Mavromati/Reeb, Art. R52, para. 15. In other words, the cases remain formally distinct
and the panel may issue separate awards (cf., e.g., CAS 2008/A/1564, WADA v. IIHF & Busch,
Award of 23 June 2009, paras. 30–33, and CAS 2008/A/1738, WADA v. DEB & Busch, Award
of 23 June 2009, paras. 37–41).
14 Art. R52(4) governs cases where a party files a statement of appeal “in connection with a
decision” which is already the object of (an)other appeal(s) before the CAS.
15 The appellants’ prayers for relief do not need to be identical (in CAS 2011/A/2384, UCI v.
Contador Velasco & RFEC and CAS 2011/A/2386, WADA v. Contador Velasco & RFEC, Award of
6 February 2012, both WADA and the UCI had initiated proceedings against Alberto Contador
and Real Federación Española de Ciclismo. The fact that UCI was seeking financial sanctions,
unlike WADA, was not viewed as an impediment to the matters being consolidated), and do not
need to be directed against the same parties (cf. CAS 2009/A/1817, WADA & FIFA v. CFA et.al.
& CAS 2009/A/1844, FIFA v. CFA & Eranosian, Award of 26 October 2010, where, although the
Cyprus Football Association was a common party, the second case included seven respondents
not included in the first proceedings).
Article R50 CAS Code – Rigozzi/Hasler 1613

when two football clubs16 (or a player and a club17 or two clubs and a player18) had a
case against each other before the relevant FIFA dispute resolution body, they are all
unhappy with the final decision, and they each appeal it before the CAS.19 Art. R50(2)
may also be considered an option when there are two (or more) different decisions
under appeal, but the parties are the same and the subject matter of the decisions
is similar or related20 – for instance, two different positive tests involving the same
athlete.21 That said, the parties do not necessarily have to be the same. Hence, one fails
to see why Art. R50(2) was not applied in the well-known cases where Joseph Blatter
and Michel Platini appealed the FIFA Appeal Committee decisions declaring each of
them ineligible to take part in football-related activities at national and international
level for six years.22 While there were two separate decisions and the parties were
not the same (which rules out consolidation within the meaning of Art. R52), the
main issue was clearly similar (i.e. both cases revolved around the question whether
Mr. Blatter and Mr. Platini had concluded an oral agreement back in 1998/1999).
Art. R50(2) may also come into play when both appeals and ordinary proceedings
are initiated in connection with the same dispute, given that the CAS considers that
appeals proceedings cannot be consolidated with ordinary proceedings.23
According to Art. R50(2), it is the President of the Appeals Division who invites the 8
parties to agree on having their cases heard by the same panel.24 The Parties can
of course also agree between themselves and present a joint request to that effect.
If a party disagrees, either when the suggestion is made by another party or upon
the invitation of the President of the Division, the latter shall decide the issue. In
making that decision, the President of the Division will verify that the disputes
clearly involve the same issues and assess whether, under the circumstances, the
advantages of having them heard by the same panel outweigh the reasons invoked
by the resisting party.
The main advantage of having the case heard by the same panel is procedural 9
efficiency and, crucially, the avoidance of the problems that could arise if distinct
panels were to issue conflicting awards in relation to the same object or issues.

16 CAS 2007/A/1388 & 1389, Racing Club de Strasbourg Football v. Ismaily Sporting Club, Award
of 21 May 2008.
17 CAS 2009/A/1856 & 1857, Fenerbahçe Spor Kulubu v. Appiah, Award of 7 June 2010.
18 Cf., e.g., CAS 2010/A/2145/2146/2147, Sevilla FC SAD et al. v. Udinese Calcio S.p.A. et al.,
Award of 28 February 2011, para. 52.
19 While in most of these cases FIFA waives the right to be a party in the arbitration, in important
ones it may elect to participate. Cf., e.g., CAS 2009/A/1880, FC Sion v. FIFA & Al-Ahly Sporting
Club and CAS 2009/A/1881, El-Hadary v. FIFA & Al-Ahly Sporting Club, Award of 1 June 2010;
CAS 2008/A/1519, FC Shakhtar Donetsk (Ukraine) v. Matuzalem (Brazil) & Real Zaragoza SAD
(Spain) & FIFA and CAS 2008/A/1520, Matuzalem (Brazil) & Real Zaragoza SAD (Spain) v. FC
Shakhtar Donetsk (Ukraine) & FIFA, Award of 19 May 2009.
20 CAS 2010/A/2243-2358-2385-2411, General Jantararoj & ABAT v. AIBA, Award of 3 August 2011.
21 CAS 2009/A/1805 & 1847, IAAF v. RFEA & Onyia, Award of 22 September 2009.
22 CAS 2016/A/4474, appeal filed against the FIFA Appeal Committee decision dated 16 February
2016; CAS 2016/A/4501, appeal filed against the FIFA Appeal Committee decision dated 24
February 2016.
23 CAS 2016/O/4430, T. et al. v. TFF, UEFA et al., and CAS 2015/A/4343, T. et al. v. TFF, UEFA et
al., CAS Court Office letters of 15 and 19 February 2016.
24 Cf., e.g., CAS 2007/A/1298, Wigan Athletic FC v. Heart of Midlothian, CAS 2007/A/1299,
Heart of Midlothian v. Webster & Wigan Athletic FC & CAS2007/A/1300, Webster v. Heart of
Midlothian, Award of 30 January 2008, paras. 42–47. More recently, CAS 2013/A/3091, 3092
& 3093, FC Nantes v. FIFA & Al Nasr SC, Award of 2 July 2013, para. 46.
 1614 Arbitration in Switzerland – The Practitioner’s Guide

10 A potential difficulty with Art. R50(2) relates to the ability of the parties to nominate
their own arbitrator. Whereas, in the normal course of events, both the appellant(s)
and the respondent(s) are given the opportunity to nominate their respective
arbitrators,25 problems could arise in the event two or more cases were to be heard
by the same panel, as arbitrators may have already been appointed by the parties to
the case which was filed first in time and the parties to the later case(s) would not
then have the opportunity to participate in this important decision. This element
should of course be carefully considered by the President of the Appeals Division
in making his or her decision.26

25 In cases where there is a plurality of claimants and/or respondents, it is not uncommon for
the parties on the same side to find an agreement on the nomination of an arbitrator (cf. Art.
R41.1(2)).
26 In such cases, it is submitted that the party or parties concerned may request the application,
by analogy, of Art. R40.2.
 1615

Article R51: Appeal Brief

Within ten days following the expiry of the time limit for the appeal, the Appellant
shall file with the CAS Court Office a brief stating the facts and legal arguments
giving rise to the appeal, together with all exhibits and specification of other
evidence upon which he intends to rely. Alternatively, the Appellant shall inform
the CAS Court Office in writing within the same time limit that the statement of
appeal shall be considered as the appeal brief. The appeal shall be deemed to have
been withdrawn if the Appellant fails to meet such time limit.
In his written submissions, the Appellant shall specify the name(s) of any wit-
nesses, including a brief summary of their expected testimony, and the name(s) of
any experts, stating their area of expertise, he intends to call and state any other
evidentiary measure which he requests. The witness statements, if any, shall be filed
together with the appeal brief, unless the President of the Panel decides otherwise.

I PURPOSE OF THE PROVISION

In CAS appeals proceedings, the appeal brief is the only full-fledged written submis- 1
sion the appellant can file. Art. R51 sets out the time limit for filing the appeal brief
(II.), as well as its required contents (III.). Art. R31’s (recently amended) prescriptions
as to the modalities for filing written submissions should also be taken into account
in this context (IV.).

II TIME LIMIT FOR FILING THE APPEAL BRIEF

According to Art. R51, the appeal brief must be filed “within ten days following 2
the expiry of the time limit for the appeal”,1 i.e. the time limit to file the statement
of appeal pursuant to Art. R49 of the CAS Code, failing which the appeal will be
deemed withdrawn. The appellant is normally reminded of this time limit by the
CAS Court Office in its letter acknowledging receipt of the statement of appeal and
setting the arbitration in motion.2 That said, given the drastic consequences of a
failure to meet the time limit to file the appeal brief, it is worth examining the way
in which that time limit must be calculated.
The calculation of the time limit for the filing of the appeal brief should not be done 3
by taking the date of notification of the decision under appeal and adding to that date
the number of days corresponding to the time limit for appeal increased by ten. The
correct way to calculate the time limit for filing of the appeal brief is to determine,
first, the exact day on which the time limit for appeal expires, and then to calculate
an additional ten-day time limit from that date. This can make a difference because,

1 Note that while Art. R51 does not make an express reservation for regulations deviating from
its ten-day time limit, the CAS practice seems to admit such deviations, as shown in particular
by the cases governed by the IAAF Anti-doping Rules (ADR), which provide, in Rule 42.15, that
the appellant has fifteen days from the deadline for filing the statement of appeal to file his or
her appeal brief with CAS. See, e.g., CAS 2013/A/3341, WADA v. Contreras & COC, Award of
28 May 2014, paras. 46–48; CAS 2012/A/2779, IAAF v. CBAt & Simone Alves da Silva, Award
of 13 January 2013, para. 29 (both referring to what was then Rule 42.13 IAAF ADR).
2 Cf. paras. 8–10 at Art. R52 below.
 1616 Arbitration in Switzerland – The Practitioner’s Guide

as already mentioned,3 if the time limit for the filing of the statement of appeal expires
on a Saturday, Sunday, official holiday or other non-business day, the ten days within
which the appeal brief should be filed are to be calculated from the first working day
thereafter. It is also worth noting that if the appellant files the statement of appeal
before the expiry of the deadline for appeal, he or she still has the full time limit of
ten days from the date of the actual time limit for appeal to file his appeal brief.4
4 The appellant can also opt to file the appeal brief together with the statement of
appeal. If he or she chooses to do so, in particular to speed up the process (as the
time limit for the Respondent to file its answer is calculated from the actual date
of filing of the appeal brief),5 he or she should state this clearly already in the
statement of appeal, for instance by entitling it “Statement of Appeal and Appeal
Brief”. If the appellant does not proceed in this manner, but nonetheless wants his
statement of appeal to be treated as his appeal brief, Art. R51 affords him a last
opportunity to inform the CAS Court Office in writing that the statement of appeal
shall be considered as the appeal brief within the time limit for filing the appeal
brief, i.e., ten days following the expiry of the time limit for appeal. It is important
to emphasize that once the time limit for filing the appeal brief has expired, the
appellant cannot “cure” his failure to timely file the brief by informing the CAS that
his original statement of appeal should actually also be considered as his appeal
brief. Failing to provide this indication to the CAS within the applicable time limit
will result in the appeal “be[ing] deemed withdrawn”.6
5 If the time limit to file the appeal brief expires on an official holiday or non-business
day “in the location from where [the brief] is to be sent”, it shall be deemed to expire
at the end of the first subsequent business day in accordance with Art. R32(1).7 It
is submitted that the relevant location is that of the domicile of the addressee of all
correspondence for the appellant’s attention, as identified by the CAS Court Office
in its communication acknowledging the appointment of counsel and/or stating the
official addresses for notification that will be used for the parties in the arbitration.8
Be that as it may, it is for the party asserting that the last day of the time limit was an
official holiday in the relevant location to prove this and the fact that the submission
was filed on the first subsequent business day.

3 Cf. Art. R49 and R32.

4 Cf. also Mavromati/Reeb, Art. R51, para. 5.
5 Cf. Art. R55(1).
6 Cf., e.g., CAS 2011/A/2632 & 2633, Memis & Sevgi v. TFF, Termination order of 9 December
2011. It is submitted, however, that this consequence might be excessive if the appellant filed
a statement of appeal containing all the elements required by Art. R51 and merely omitted to
inform the CAS that the statement should also be considered as the appeal brief. For a case
admitting a belated indication by the appellant that the statement of appeal should be considered
as its appeal brief (inter alia because the only participating respondent had not objected), see
CAS 2008/A/1699, Nile Sports Club (Hasaheisa) Sudan v. SFA & Al-Hilal Sports Club, Award
of 4 September 2009, paras. 28–29. On the other hand, Mavromati/Reeb, Art. R51, para. 6 in
fine refer to an unpublished case, CAS 2014/A/3482, FC Union Berlin v. Changchun Yatai FC,
Award of 17 September 2014, to state that “the appeal shall be deemed to have been withdrawn
if the appellant fails to meet [Art. R51(1)’s time limit to indicate that the statement of appeal
should be considered as the appeal brief]”.
7 CAS 2006/A/1175, Daniute v. International Dance Sport Federation, Award of 26 June 2007,
para. 53.
8 On this, see Art. 32(1) above, and the discussion in the commentary on Art. R49, para. 18,
above.
Article R51 CAS Code – Rigozzi/Hasler 1617

Unlike the time limit to file the statement of appeal,9 the time limit to file the appeal 6
brief can be extended upon a reasoned request, in accordance with Art. R32(2).10 This
notwithstanding, the calculation of the actual time limit according to the principles
set out above11 must be carried out diligently, as an extension can be granted only
if it has been requested before its expiry.12 The possibility of requesting such an
extension is particularly important in practice because, once the appeal brief is
filed, the appellant will not be allowed to supplement or amend its contents, save
in exceptional circumstances (as provided in Art. R56(1)). If the appellant or his
counsel have legitimate reasons not to be in a position to gather all the required
evidence and to properly prepare the appellant’s case within the time limit provided
for in Art. R51, they should ask for an extension, indicating already at that stage
that if the extension should be denied, the appellant reserves the right to seek the
panel’s authorization to supplement his/its case according to Art. R56(1).

III CONTENTS OF THE APPEAL BRIEF

Pursuant to Art. R51, the appeal brief should contain a “stat[ement of] the facts and 7
legal arguments giving rise to the appeal, together with all exhibits and specification
of other evidence upon which [the appellant] intends to rely”. The appeal brief should
be a comprehensive submission, as in principle there will be no other possibility for
the appellant to file further written submissions. The notion of a “stat[ement of] the
facts and legal arguments” is well-known in the vast majority of jurisdictions. In
practice, similar to the briefs filed under other arbitration rules, a CAS appeal brief
will generally be divided in two main parts, namely (A.) a statement of the relevant
“Facts” or “Factual background”, and (B.) a section setting out the “Law” or a “Legal
Discussion”. A final section should be devoted to the appellant’s prayers for relief
(C.). The appeal brief must be accompanied by all the evidence that the appellant
wishes to rely upon (D.) and, if necessary, contain any request(s) for evidentiary
measures to be taken by the panel (E.).13

A Statement of Facts

The factual part of the appeal brief must be as comprehensive as possible, as new 8
allegations are not admissible after the filing of that submission (in accordance with
Art. R56(1)). That being said, it is advisable for appellants to take the precaution of

9 Cf. Arts. R32(2) and R49 and the relating commentary above.
10 The parties can also agree between themselves on an extension (cf., e.g., CAS 2013/A/3052,
Miguel Sanchíz et al. v. Camilo Amado et al. & COP, Award of 14 February 2014, para. 31). In
such cases, CAS should confirm the parties’ agreement.
11 Cf. paras. 2–3.
12 On the other hand, the extension need not be granted before the expiry of the original time limit
(which the CAS Court Office is also at liberty of staying pending a decision on the request for
extension by the Division President or the panel, if already constituted); cf. CAS 2010/A/2235,
UCI v. Tadej Valjavec & Olympic Committee of Slovenia, Award of 21 April 2011, paras. 69–70.
Note also that absent an objection by the respondent, a belated request for extension and/or
filing of the appeal brief may (exceptionally) be deemed admissible if the circumstances so
warrant (cf. CAS 2013/A/3140, A v. Club Atlético de Madrid SAD & FREF & FIFA, Award of 10
October 2013, paras. 5.6–5.9).
13 On the contents of the appeal brief, see also Mavromati/Reeb, Art. R51, paras. 9–14.
 1618 Arbitration in Switzerland – The Practitioner’s Guide

reserving the right to expand on their statements of facts in case the respondent’s
answer contains factual allegations that need to be rebutted.14
9 On a more practical level, even if this is not required by Art. R51, nor by the CAS
Court Office’s standard letter acknowledging receipt of the statement of appeal and
setting the arbitration in motion,15 it is highly advisable to number the paragraphs of
the statement of facts (or, for that matter, of the entire brief) and, for each allegation,
to indicate the evidence relied upon.16

B Legal Discussion

10 The appeal brief’s section devoted to the legal discussion should contain a preliminary
subsection establishing the grounds for CAS’s jurisdiction to hear the appeal as well
as the appeal’s admissibility, including its timeliness.17 In this preliminary section
it is also useful to set out the applicable regulations and (national) law(s) on which
the appellant’s legal analysis will be based.18
11 The main section devoted to the discussion of the merits of the case should also be
as comprehensive as possible. However, while Art. R56(1) does indicate that new
arguments will not be admissible after the submission of the appeal brief, CAS
practice shows that the appellant will be allowed to fine-tune his legal argumentation
at the hearing or even to bring new arguments. After all, under Swiss arbitration
law the panel is not bound by the legal reasoning of the parties (jura novit curia).19
By contrast, the appellant should not be allowed to resort, at the hearing, to totally
new arguments in such a way as to “ambush” the respondent.

C Prayers for Relief

12 A final section in the appeal brief should be devoted to the appellant’s prayers for
relief. Even if this is not specifically stated in Art. R51, the prayers for relief set
out in the appeal brief must not necessarily be the same as those contained in the
statement of appeal.20 On the other hand, the appellant must consider very carefully
the wording of his or her prayers for relief at the stage of the appeal brief, since,
as noted above, he or she shall not subsequently “be authorized to supplement
or amend [his] requests”.21 At the hearing, the panel may (and often will) ask for

14 Cf. Art. R56 and the commentary below.

15 Cf. Art. R52, paras. 8–10 below.
16 It is submitted that the CAS Court Office’s standard letter acknowledging receipt of the statement
of appeal and setting the arbitration in motion could be adjusted accordingly.
17 Cf. Art. R47 and R49.
18 Cf. Art. R58.
19 BGE 130 III 35 para. 5 and the references cited therein. See also the discussion in the commentary
on Art. R56(1) below.
20 CAS 2007/A/1434 & 1435 IOC & WADA v. Pinter & FIS, para. 79. Cf. also Mavromati/Reeb,
Art. R51, para. 9, referring to the unpublished award in CAS 2013/A/3206, Genoa Cricket and
Football Club v. Gelsenkirchen Schalke 04 (7 March 2014), para. 41. To be on the safe side, it
is however advisable to reserve, in the statement of appeal, the appellant’s right to amend his
prayers for relief (CAS 2007/A/1396 & 1402 WADA & UCI v. Valverde & RFEC, Award of 31 May
2010, para. 5.11). Cf. also CAS 2009/A/1881, El Hadary v. FIFA & Al-Ahly Sporting Club, Partial
Award on lis pendens and jurisdiction of 7 October 2009, para. 58.
21 Art. R56(1). On this point see the commentary on Art. R56 below.
Article R51 CAS Code – Rigozzi/Hasler 1619

clarifications on the parties’ prayers for relief, but should not allow them to put
forward new claims.

D Exhibits and Other Evidence

In accordance with Art. R51(1), the appeal brief must be accompanied by “all exhibits 13
and specification of other evidence”.
Exhibits within the meaning of Art. R51 are not only paper documents, but more 14
generally any “writing, communication, picture, drawing, program or data of any
kind, whether recorded or maintained on paper or by electronic, audio, visual or
any other means”.22 The main issues that may possibly arise in connection with
exhibits relate to (i) their authenticity and (ii) any required translations.
In the absence of any indication, whether in the CAS Code or in the Court Office’s 15
letter setting the arbitration in motion,23 it is generally accepted that there is no need
to file the originals of documents: copies will be deemed to conform to the originals.
If there is a dispute as to the authenticity of a document (which regrettably tends
to occur with increasing frequency, in particular in football transfer disputes), the
panel can order the production of the original document(s) for inspection24 and if
needed decide that an independent investigation will be conducted on this aspect.25
In its standard letter acknowledging receipt of the statement of appeal and setting the 16
arbitration in motion, the CAS Court Office generally emphasizes that “all exhibits
[…] shall be clearly listed and numbered” and that any documents that are not
in the language of the arbitration (as determined in that same letter, based on the
statement of appeal)26 should be accompanied by a translation into that language.27
For lengthy documents, it is recommended to request leave from the CAS to translate
only the most relevant parts.
The other evidence that must be specified according to Art. R51(1) may be witness 17
evidence, but also – in particular in doping cases – expert evidence.
Article R51(2) sets out the applicable rules with respect to witness evidence. The 18
witnesses must be listed in the appeal brief. The CAS Code simply requires that the
appeal brief “includ[e] a brief summary of their expected testimony”. Experience
suggests that a literal interpretation of this provision allows the parties to describe the

22 In accordance with the definition of the term “Document” in the IBA Rules.
23 Cf. Art. R52, paras. 8–10 below.
24 Cf., e.g., CAS 2012/A/2698, Konyaspor Kulübü Dernegi v. Ituano Futebol Clube, Award of 23
July 2013, para. 46.
25 Cf., e.g., CAS 2010/A/2196, Al Qadsia v. FIFA & Kazma SC & CAS 2010/A/2205, Jovancic v.
FIFA & Kazma SC, Award of 29 February 2012, paras. 45–49; CAS 2012/A/2957, Football Club
Khimki v. Eljver Raça, Award of 5 February 2014, paras. 3.24–3.30.
26 Cf. Art. R52. If the respondent wants the arbitration to be conducted in (another) CAS (working
or accepted) language, it should inform the CAS Court Office immediately so that the President
of the Division can decide on the language before the documents are actually translated.
27 While Art. R29(3) provides that “the Panel may order that all documents submitted in languages
other than that of the procedure be filed together with a certified translation in the language
of the procedure”, in practice the CAS Court Office requests the said translations already in
the directions it issues when acknowledging receipt of the statement of appeal. That said, the
CAS Court Office does not request “certified” translations and leaves it to the panel to take the
appropriate steps in case of disputes as to the accuracy of any of the translations provided.
 1620 Arbitration in Switzerland – The Practitioner’s Guide

contents of prospective witness testimonies in very broad terms, which can lead the
other party to feel ambushed during the hearing. When such a risk is foreseeable, the
respondent should request, or the panel could order sua sponte, that the appellant
provide further particulars on the contents of the witness testimony or testimonies
on which he or she relies, or that he or she file (a) proper witness statement(s).28
19 Since the Code contains no specific provision with respect to the concept of “wit-
ness”, the practice of the CAS tends to follow the principles crystallized in Art.
4(2) of the IBA Rules, namely that “any person may present evidence as a witness,
including a party or a party’s officer, employee or other representative”.29 A party
does not have an obligation to testify. According to CAS practice, if a party or a
party representative decides to give evidence as a witness, then the other party or
parties will have the right to cross-examine him. The accused athlete is thus allowed
to file a “witness statement” and to give evidence at the hearing. In doping cases,
the athlete has a clear incentive to at least appear at the hearing and make himself
available for questioning, since the doping regulations allow the panel to draw
adverse inferences from his “refusal, after a request made in a reasonable time in
advance of the hearing, to appear at the hearing (either in person or telephonically
as directed by the hearing panel) and to answer questions from the hearing panel
or the Anti-Doping Organization asserting the anti-doping rule violation”.30
20 Witness statements are seldom used in CAS proceedings. It is submitted that the
possibility to file such statements should be used more systematically, in particular
in complex cases. Experience shows that the use of witness statements significantly
reduces the length of the evidentiary part of the hearing, leaving more time for the
discussion of legal and procedural issues between the parties and the panel. In the

28 The same is true (a fortiori) for experts, as discussed further below. The authors are aware of
one case where the respondent objected to (1) the appellant’s failure to submit summaries of
the expected testimonies of some witnesses, and (2) the appellant’s submission of summaries
of the expected testimonies of other witnesses and experts that in the respondent’s view were
“insufficient to allow for a meaningful and expedient witness examination”, “provid[ing] for
very broad topics” and only “rudimentary information”, allegedly making it impossible for the
respondent to anticipate what exactly the relevant individuals would testify at the hearing, and
thus preventing it from effectively defending itself. The panel decided not to hear the witnesses
for which no summary had been provided (considering also that it deemed itself sufficiently
informed on the relevant topics), and ordered that the experts provide (additional) summaries
of their expected evidence (in lieu of the detailed expert reports requested by the respondent),
adding that it reserved its right to reject the experts if on the basis of the summaries so provided,
it would come to the conclusion that their contribution was irrelevant (CAS 2015/A/4343 &
CAS 2016/A/4430, Order of 28 September 2016).
29 Note that isolated decisions such as CAS 2012/A/2874, Grzegorz Rasiak v. AEL Limassol,
Award of 31 May 2013, paras. 64–72, according to which “the CAS Code specifically refers only
to witnesses and experts and not to parties and thus makes a clear distinction between them.
Consequently, the Panel finds that a party or representative of a party is, strictly speaking, not
required to provide a statement of its/his expected testimony” should not be followed as a matter
of principle. Where a party intends to have one of its representatives heard at the hearing,
but has not listed him or her as a witness, nor provided a summary of his or her testimony, it
will be for the panel to clarify the situation sufficiently ahead of the hearing in order to avoid
abuses.
30 Cf. Art. 3.2.5 WADA Code. In non-doping matters, athletes might think twice before submitting
witness statements and testifying, as this would expose them to cross-examination by the
sports-governing body. The athlete’s counsel should thus consider this option carefully, bearing
in mind that the athlete will in any event be allowed to make a personal statement at the end
of the hearing.
Article R51 CAS Code – Rigozzi/Hasler 1621

absence of any indication in Art. R51, Art. 4(5) of the IBA Rules should be adopted
as the governing or at least guiding standard with respect to the contents of witness
statements.31
The same principles apply to experts and expert reports. The concept of expert is 21
also not defined in the Code. Beyond distinguishing between tribunal appointed
and party-appointed experts, only the latter of which are expressly mentioned in
Art. R51(2),32 the IBA Rules provide that a party may rely on an expert appointed
by it as “a means of evidence on specific issues” (Art. 5(1)).
In practice, the hearing of experts without the prior filing of written expert reports 22
is simply not realistic. Expert reports can also be presented to cover legal issues,33
in particular if they concern a law of which none of the members of the panel has
specific knowledge.34 The contents of the expert reports should be in line with the
requirements of Art. 5(2) of the IBA Rules.35 In particular, any report submitted by an

31 Art. 4(5) of the IBA Rules reads as follows: “[e]ach Witness Statement shall contain: (a) the full
name and address of the witness, a statement regarding his or her present and past relationship
(if any) with any of the Parties, and a description of his or her background, qualifications,
training and experience, if such a description may be relevant to the dispute or to the contents
of the statement; (b) a full and detailed description of the facts, and the source of the witness’s
information as to those facts, sufficient to serve as that witness’s evidence in the matter in
dispute. Documents on which the witness relies that have not already been submitted shall be
provided; (c) a statement as to the language in which the Witness Statement was originally
prepared and the language in which the witness anticipates giving testimony at the Evidentiary
Hearing; (d) an affirmation of the truth of the Witness Statement; and (e) the signature of the
witness and its date and place.” Note that witness statements filed in the lower instance or
even transcripts of testimonies given before the previous instance (provided they contain, or
are supplemented with, the information suggested under Art. 4(5) IBA Rules) can be used as
witness statements in CAS proceedings.
32 The appointment of an expert by the panel may be requested as one of the evidentiary measures
mentioned in Art. R51(2), which CAS arbitrators have the power to order in accordance with
Art. R44.3(2) and (3).
33 For examples of cases in which legal opinions on specific matters of foreign law were filed in
CAS proceedings, see, e.g., CAS 2008/A/1583 & 1584, Sport Lisboa e Benfica Futebol SAD v.
UEFA & FC Porto Futebol SAD; CAS 2008/A/1584, Vitória Sport Clube de Guimarães v. UEFA
& FC Porto Futebol SAD, Award of 15 September 2008, where expert evidence was provided
on Portuguese law; and CAS 2010/A/2252, Zavarov v. FC Arsenal Kiev, Award of 6 July 2011,
where both parties produced legal opinions on questions of Ukrainian law. More recently, see,
e.g., CAS 2013/A/3365 & 336, Juventus FC v. Chelsea FC & AS Livorno v. Chelsea FC, Award of
21 January 2015, where both sides produced several legal opinions on matters of Swiss and EU
law before a panel composed of a majority of non-Swiss lawyers, in a dispute raising numerous
issues of legal interpretation.
34 To avoid the arbitrators’ inclination to consider such legal opinions as mere submissions, which
is technically incorrect since they qualify as evidence, a legal expert should ensure that his or
her opinion is stated in a way that is as neutral as possible and make clear that the conclusions
set forth therein are based on the factual assumptions provided in his or her instructions.
35 Art. 5(2) of the IBA Rules reads as follows: “[t]he Expert Report shall contain: (a) the full name
and address of the Party-Appointed Expert, a statement regarding his or her present and past
relationship (if any) with any of the Parties, their legal advisors and the Arbitral Tribunal, and
a description of his or her background, qualifications, training and experience; (b) a description
of the instructions pursuant to which he or she is providing his or her opinions and conclusions;
(c) a statement of his or her independence from the Parties, their legal advisors and the Arbitral
Tribunal; (d) a statement of the facts on which he or she is basing his or her expert opinions
and conclusions; (e) his or her expert opinions and conclusions, including a description of the
methods, evidence and information used in arriving at the conclusions. Documents on which
the Party-Appointed Expert relies that have not already been submitted shall be provided; (f) if
the Expert Report has been translated, a statement as to the language in which it was originally
 1622 Arbitration in Switzerland – The Practitioner’s Guide

expert should include a statement of “his or her background, qualifications, training

and experience”. The qualifications of the experts adduced by the parties can and
will be taken into account by the arbitrators when assessing the expert evidence.
Absent any specific evidentiary rules in the applicable regulations,36 the arbitrators
cannot apply evidentiary rules of national law since Swiss arbitration law provides
that arbitrators can freely assess the evidence (“libre appréciation des preuves”).37
23 The appellant should in any event reserve the possibility, in his appeal brief, to
(i) name rebuttal witnesses and/or experts and (ii) file rebuttal witness statements
and/or rebuttal expert reports in case the evidence tendered with the respondent’s
answer should make this necessary.38

E Requests for Evidentiary Measures

24 Article R51(2) also requires that any “evidentiary measure which [the appellant]
requests” should be contained in (or at least filed together with) the appeal brief.
Such evidentiary requests can range from a request to produce the case file from the
first instance proceedings to an application for the panel to request the assistance
of the state courts in accordance with Art. 184(2) PILS, for instance to summon a
witness who is not under the control of the appellant. Under this provision the parties
may also request the appointment of an expert by the panel.39 In the vast majority
of cases, the requests made will concern the production of documents according
to Art. R44.3 of the Code. After the filing of the appeal brief, evidentiary requests
should be granted solely in exceptional circumstances, in particular if the existence
and/or the relevance of the evidence sought have become apparent further to the
filing of the respondent’s answer in accordance with Art. R55.

IV FILING AND NUMBER OF COPIES

25 The previous edition of this commentary noted that the Code’s 2013 revisions had
removed the possibility for the appellant to file the appeal brief only by facsimile
within the time limit and to send the original by post later on. The 2016 edition of

prepared, and the language in which the Party-Appointed Expert anticipates giving testimony at
the Evidentiary Hearing; (g) an affirmation of his or her genuine belief in the opinions expressed
in the Expert Report; (h) the signature of the Party-Appointed Expert and its date and place; and
(i) if the Expert Report has been signed by more than one person, an attribution of the entirety
or specific parts of the Expert Report to each author”.
36 See, e.g., Arts. 5.2.4.4 and 6.2.4.3, both entitled ‘Alternative Biological Matrices’, in WADA’s
International Standard for Laboratories providing that “[a]ny testing results obtained from hair,
nails, oral fluid or other biological material shall not be used to counter Adverse Analytical
Findings” from urine, respectively blood.
37 See, e.g., BGer 4A_214/2013 para. 4.1, underscoring that the arbitrators’ freedom in assessing
the evidence is “a pillar of arbitration”.
38 On the (limited) possibility to file additional (rebuttal) submissions, see the commentary on
Art. R56 below.
39 Mavromati/Reeb, Art. R51, para. 12. A CAS decision denying such a request, even though it
had been presented in due time and in the appropriate form, was considered by the Swiss
Supreme Court in BGer. 4A_274/2012 para. 3. The Court held that the parties have the right to
request the appointment of a tribunal expert and that an unjustified denial of such a request
violates their right to be heard. That said, in accordance with the principle of good faith, a
party’s failure to raise the corresponding objection during the proceedings precludes it from
challenging the award on that ground.
Article R51 CAS Code – Rigozzi/Hasler 1623

the Code has brought further changes in this respect:40 it is again possible to file
submissions, including the appeal brief, by facsimile (and now also by e-mail) on
the date of expiry of the time limit, and such submissions will be deemed timely
provided that they have also been sent by courier, in the requisite number of copies
(on paper or saved on a “digital medium”), “within the first subsequent business
day of the relevant time limit”.41
As submitted in the previous edition, the filing of an incorrect number of copies is 26
of no effect with regard to the observance of the time limit. In such a case, a short
additional deadline should be given to the appellant for completing his filing.42

40 For more details, see the commentary on Art. R31 above.

41 Art. R31(3).
42 See also the commentary on Art. R31 above, para. 13.
 1624

Article R52: Initiation of the Arbitration by the CAS

Unless it appears from the outset that there is clearly no arbitration agreement
referring to CAS or that the agreement is clearly not related to the dispute at
stake, CAS shall take all appropriate actions to set the arbitration in motion. The
CAS Court Office shall communicate the statement of appeal to the Respondent,
and the President of the Division shall proceed with the formation of the Panel in
accordance with Articles R53 and R54. If applicable, he shall also decide promptly
on any application for a stay or for interim measures.
The CAS Court Office shall send a copy of the statement of appeal and appeal brief
to the authority which issued the challenged decision, for information.
The CAS Court Office may publicly announce the initiation of any appeals arbitra-
tion procedure and, at a later stage and where applicable, the composition of the
arbitral panel and the hearing date, unless the parties agree otherwise.
With the agreement of the parties, the Panel or, if it has not yet been appointed,
the President of the Division may proceed in an expedited manner and shall issue
appropriate directions for such procedure.
Where a party files a statement of appeal in connection with a decision which is
the subject of a pending appeal before CAS, the President of the Panel, or if he has
not yet been appointed, the President of the Division, may decide, after inviting
submissions from the parties, to consolidate the two procedures.

I PURPOSE OF THE PROVISION

1 Article R52 governs the first stages of the appeals arbitration procedure, once the
statement of appeal has been received by the CAS Court Office. It provides the legal
basis for the different actions that will or may be undertaken by the CAS to set the
arbitration in motion (III.-IV.), depending on the contents of the statement of appeal
and, as the case may be, the existence of any other pending appeals against the same
decision (V.). All this, however, is subject to the CAS being prima facie satisfied, on
the basis of the statement of appeal, that it has jurisdiction to hear the case (II.).

II PRIMA FACIE EXAMINATION OF CAS JURISDICTION

2 Before initiating the arbitration, the CAS Court Office should conduct a prima facie
analysis of CAS jurisdiction based on the statement of appeal and the documents
mandatorily enclosed therewith.1 The purpose of this preliminary review is to make
sure that no action is taken, in particular the notification of the statement of appeal
to the respondent(s) or the issuance of an order on provisional measures, if (i) “there
is clearly no arbitration agreement referring to the CAS” or (ii) “the agreement is
clearly not related to the dispute at stake”.
3 The relevant test for the purposes of Art. R52 “is not whether CAS has jurisdiction
but only whether there is an appearance of an arbitration agreement referring to

1 Cf. Art. R48.

Article R52 CAS Code – Rigozzi/Hasler 1625

CAS. If there is such an appearance, then the Panel of arbitrators, to which this case
may be referred, will have to rule on its own jurisdiction” if the latter is challenged.2
Thus, the CAS emphasizes that it “may refuse to set the arbitration in motion and
not assign the case to a panel only when the absence of an arbitration agreement is
manifest” and that “[t]he examination of the CAS jurisdiction at that stage is merely a
prima facie assessment, which is necessary to prevent the CAS from ordering specific
measures in the absence of jurisdiction”.3 The prima facie examination conducted
by the CAS Court Office upon receipt of the statement of appeal is similar to that
performed by other arbitral institutions, such as, for instance, the ICC International
Court of Arbitration under Art. 6(4) ICC Rules.4
The wording of Art. R52(1) (“[u]nless […] the CAS shall take all appropriate actions 4
[…]”) seems to suggest that if the CAS Court Office does come to the clear conclusion
that there is no arbitration agreement referring to the CAS or relating to the dispute
at hand, it will simply inform the appellant accordingly, without involving the des-
ignated respondent. However, it appears that sometimes both “parties are informed
as such in writing by the CAS Court Office and in the absence of an alternative
agreement between the parties, the arbitration procedure is discontinued”.5 Either
way, the CAS’s decision not to initiate the proceedings shall be considered as an
award on jurisdiction within the meaning of Art. 186(3) PILS, and can (or rather
must, on pain of forfeiture of the right to do so at a later stage) thus be challenged
before the Swiss Federal Supreme Court pursuant to Art. 190(2)(b) PILS.
In case of a so-called “pathological” arbitration agreement6 or if there is any doubt 5
as to the agreement’s validity and/or scope, it is recommended to include a section
in the statement of appeal explaining the reason(s) why the appellant considers that
the CAS does have jurisdiction, together with an invitation for the CAS Court Office
and/or the Division President to defer to the panel on this issue.
In some cases, the CAS Court Office forwards the statement of appeal to the 6
respondent(s) with an invitation to comment on the existence of a valid arbitration
agreement, and then leaves it to the President of the Appeals Division to decide on a
prima facie basis whether the arbitration is to continue.7 It is submitted that such a
possibility is interesting given the jurisdictional nature of the decision to be made,

2 CAS 2000/A/297, R. v. IOC, IWF, National Olympic Committee of Bosnia and Herzegovina
and Weightlifting Federation of Bosnia and Herzegovina, Order of 30 August 2000; see also
Mavromati/Reeb, Art. R52, para. 4.
3 CAS 2008/A/1600, PFC Botev 1912 – Plovdiv AD v. BFU & Hristov, Award on Jurisdiction of 1
July 2009, para. 5.1. While the wording of this provision has been changed from “manifestly”
to “clearly” in the 2013 edition of the Code, this is not likely to have a significant effect on the
analysis (and conclusion) as to whether or not there is an arbitration agreement referring to
the CAS.
4 See Favre Schnyder, below commentary on Art. 6(4) ICC Rules (Chapter 17, Part II), paras.
15–28. For another example drawn from sports arbitration, see Art.11 in the Basketball Arbitral
Tribunal Arbitration Rules (1 May 2014 version).
5 CAS 2005/A/952, Cole v. FAPL, Award of 24 January 2006, para. 6.5. See also CAS 2013/A/3409,
FAHB et consorts v. IHF, Award of 28 August 2014, paras. 28–30, where the CAS Court Office
asked for information from both the Appellants and the designated Respondent before initiating
the appeals proceedings.
6 On pathological arbitration clauses under Swiss law, see in particular Müller/Riske, above
commentary on Art. 178 PILS (Chapter 2, Part II), para. 60.
7 CAS 2000/A/288, T. v. Comité National Olympique et Sportif Français, Procedural Order of 15
August 2000.
 1626 Arbitration in Switzerland – The Practitioner’s Guide

but it should be provided for in the CAS Code so that the Court Office can resort to
it by reference to a proper legal basis.
7 If the CAS Court Office is satisfied that prima facie there is an arbitration agreement
referring to the CAS in relation to the dispute in question, and provided the other
requirements of Art. R48 are met,8 it will “communicate the statement of appeal to
the Respondent, and the President of the Division shall proceed with the formation
of the Panel in accordance with Arts. R53 and R54. If applicable, the [Division
President] shall also decide promptly on any application for a stay or other request
for interim measures”.9 This decision does not constitute a challengeable award.10

III FIRST PROCEDURAL STEPS

8 If the statement of appeal withstands the CAS’s prima facie jurisdictional review, Art.
R52(1) provides that the CAS Court Office “shall take all appropriate actions to set
the arbitration in motion.” As just seen, the first such action is the “communicat[ion
of] the statement of appeal to the Respondent[s]”. The standard letter issued by CAS
to that effect also confirms that “[p]ursuant to Article S20 of the Code […], the
present arbitration has been assigned to the Appeals Arbitration Division of the
CAS and shall therefore be dealt with according to Articles R47 et seq. of the Code.”
9 More importantly, the CAS letter also (i) takes note of the arbitrator appointed by
the appellant in the statement of appeal, (ii) invites the respondent(s) “to nominate
an arbitrator from the list of CAS arbitrators published on the CAS website […]
within ten days of receipt of this letter by courier, in accordance with Art. R53 of
the Code” and (iii) informs the respondent(s) that “[i]f the Respondent[s] fail[s]
to nominate an arbitrator the President of the CAS Appeals Arbitration Division,
or his Deputy shall proceed with the appointment in lieu of the Respondent[s]”.11
10 If the statement of appeal was accompanied by an application for provisional
measures, in particular a request to stay the decision under appeal,12 the CAS’s
standard letter also contains a paragraph noting that such an application has been

8 Cf. the commentary to Art. R48 above, especially sections II and III.
9 Art. R52(1) at the end. As mentioned in the commentary on Art. R37 above, in so doing, the
President of the Division shall first satisfy him- or herself that CAS jurisdiction is established
prima facie, it being understood that he or she “may terminate the arbitration procedure if
he/she rules that the CAS clearly has no jurisdiction”. Similarly, a preliminary review of the
existence of an arbitration agreement establishing CAS jurisdiction, at least prima facie and
“without prejudice to the decision of the panel on the same matter”, will be carried out by the
President of the Division in ruling on a request for the joinder or intervention of third parties
(cf. Art. R41.4, which also applies in appeals proceedings).
10 Save in the (very exceptional) cases where the President of the Division finds that the CAS
clearly has no jurisdiction” (see footnote 9 above and Art. R37).
11 Cf. Art. R53. The same letter will generally also contain an acknowledgment of the payment
of the filing fee or of the fact that the appellant has taken the necessary steps to that end;
directions as to the payment of the advance of costs, and a determination on the language of
the proceedings based on the Appellant’s submission, indicating that “[u]nless the Respondent
objects within three (3) days from the receipt of this letter by courier, pursuant to Art. R29 of
the Code, all written submissions shall be filed in [the language used by the Appellant] and all
exhibits submitted in any other language should be accompanied by a translation into [that
same language]. In case of objection, it will be for the President of the CAS Appeals Arbitration
Division or [his or her] Deputy, to decide on the language of the proceedings”.
12 Cf. Art. R48(1).
Article R52 CAS Code – Rigozzi/Hasler 1627

filed and fixing a time limit for the respondent(s) to express its (their) position with
regard to it.13 Art. R52(1) further provides that “the President of the Division shall
[…] decide promptly on an application for a stay or for interim measures”.
With the 2017 revision, a new paragraph has been added in Art. R52, providing 11
that “[t]he CAS Court Office may publicly announce the initiation of any appeals
arbitration procedure and, at a later stage and where applicable, the composition
of the arbitral panel and the hearing date, unless the parties agree otherwise”. The
introduction of an express provision calling for increased transparency regarding the
initiation and conduct of CAS appeals proceedings is unobjectionable and in fact
desirable. In reality, Art. R52(3) partly codifies the CAS’s current practice, given that
the initiation of appeals proceedings is sometimes announced via a press release,
and a list (with no indication as to its exhaustiveness) of the hearing dates by case
is regularly posted on the CAS website. Yet, it is submitted that, as it stands, the
wording of Art. R52(3) falls short of introducing an actual transparency rule, and
thus does not represent a real progress on the current situation. On the one hand,
the new provision leaves the decision whether to publicly announce the initiation of
the proceedings, composition of the panel and hearing date to the CAS’s discretion
(subject to the parties’ agreement to the contrary, which will not occur frequently
given that the parties may easily have opposing wishes in this regard), and on the
other, it provides no guidance on how such discretion should be exercised. It remains
to be seen whether the CAS’s future practice will shed light on the relevant criteria
for the institution’s decision to publish the information mentioned in Art. R52(3).
Finally, since the 2010 revision, Art. R52 contains a provision codifying the CAS’s 12
previous practice14 of sending a copy of the statement of appeal and appeal brief, for
information, to the authority that issued the challenged decision (Art. R52(2)).15 This
provision applies only if the authority in question was not named as a respondent in
the statement of appeal, which is mainly the case in appeals against FIFA’s decisions
on disputes between clubs or between clubs and players. FIFA can then decide
whether to intervene, for instance, because the case raises important issues, or waive
its right to do so. As noted in the CAS case law, the fact that the governing body
that issued the decision receives a copy of the statement of appeal and appeal brief
does not mean that it automatically becomes a party to the proceeding: “[t]he use
of the term ‘for information’ shows that the issuing authority is not per se party to
the proceedings, yet. It must either be called as a party or itself request to intervene
in order to, potentially, become a party”.16

13 The same applies for any other procedural requests filed by the appellant, including a request
for the arbitration to be conducted as an expedited procedure according to Art. R52(4), as
discussed in paras. 12–14 below.
14 Cf. Reeb, Modifications essentielles, p. 7.
15 The 2017 revision has introduced a further change in this regard, under Art. R59, which now
provides that a copy of the award will also be communicated “to the authority or sports body
which has rendered the challenged decision, if that body is not a party to the proceedings” (Art.
R59(6)).
16 CAS 2010/A/2289, S.C. Sporting Club S.A. Vaslui v. Ljubinkovic, Award of 3 August 2011, para.
63. See also Mavromati/Reeb, Art. R52, para. 11, noting, in addition, that the CAS also sends a
copy of the final award to the authority that issued the appealed decision, a practice now also
reflected in the Code (cf. footnote 15 above).
 1628 Arbitration in Switzerland – The Practitioner’s Guide

IV EXPEDITED PROCEDURE

13 According to Art. R52(4) it is at this early stage that, “with the agreement of the
parties”, the President of the Appeals Division (or the panel)17 may decide that the
arbitration shall be conducted “in an expedited manner”. Hence, if it so wishes, the
appellant should make a request in this sense in the statement of appeal, so that the
CAS Court Office can refer to it in the letter forwarding the statement of appeal to
the respondent(s) and invite it (or them) to indicate whether it (or they) agree(s)
to such request.
14 In practice, it is not so infrequent for the parties to agree to having the arbitration
conducted in an expedited manner:18 On the side of the athlete this will be so, for
instance, because he or she needs a decision in time for any competitions or events
he or she is aspiring to participate in, to the extent his or her ability to participate
may be affected by the appealed decision,19 and in such cases, on the side of the
sports-governing body, an expedited procedure will be favored in order to have
certainty as to who will be authorized to compete. This possibility has been used
often and quite successfully for cases that needed to be decided just before the
beginning of an important competition, such as the world championships,20 the
UEFA Champions League21 or even the Olympic Games.22

17 This, however, is less likely to occur as the swift appointment of the panel already requires an
agreement by the parties and the active cooperation of the Division President.
18 The request for expedited proceedings is often accompanied by the suggestion that the case
should be heard by a sole arbitrator instead of a three member panel, cf., e.g., CAS 2011/A/2678,
IAAF v. RFEA & F. Pelàez, para. 61, also referred to by Mavromati/Reeb, Art. R52, para. 13.
Similarly, i.e. again for the sake of speed, the parties may forego a hearing in expedited ap-
peals proceedings; cf., e.g., CAS 2012/A/2690, Dinamo 1948 FC v. RPFL, RFF & SC S.A. Vaslui,
Award of 16 October 2012, para. 4.4, cited by Mavromati/Reeb, Art. R52, para. 13 in fine. The
agreement to have disputes heard in an expedited manner can also be concluded in advance.
For an example, cf. the provision in the Regulations of the UEFA Champions League provision
quoted in footnote 21 below.
19 Depending on the importance of the competition, the athlete may be prepared to agree to an
expedited proceeding even if it will inevitably restrict his or her right to produce evidence (in
particular technical expert reports in anti-doping cases). See, e.g., CAS 2016/A/4707, Alex
Schwazer v. IAAF, NADO Italia, FIDAL & WADA, Award of 10 August 2016: as indicated in the
press release issued by the CAS on 11 August 2016, the athlete had filed a statement of appeal
together with a request for provisional measures seeking a stay of the IAAF’s decision to
provisionally suspend him in the wake of an alleged anti-doping rule violation. The President
of the Appeals Division dismissed the athlete’s request for provisional measures, however the
CAS suggested, and the athlete eventually agreed to, “an expedited procedure with a hearing,
in presence of the athlete, in Rio de Janeiro on 8 August 2016 in order that a final decision on
the merits of the case be issued prior to the Rio Olympic Games”.
20 Cf., e.g., CAS 2011/A/2495/2496/2497/2498, FINA v. Cielo et. Al. & CBDA, Award of 29 July
2011, paras. 4.1–4.8.
21 Cf. CAS 2008/A/1583/1584, Benfica et al. v. UEFA & FC Porto, Award of 15 September 2008, paras.
3.1–3.8. In fact, the Regulations of the UEFA Champions League 2015–2018 Cycle (2015/2016
Season) expressly provide in Art. 4.01(f) that to be eligible to participate in the competition,
clubs must “agree that any proceedings before the CAS concerning admission to, participation
in or exclusion from the competition will be held in an expedited manner in accordance with
the CAS Code […]”. Applying this provision, see, e.g., CAS 2015/A/4151, Panathinaikos FC v.
UEFA & Olympiakos FC, Award of 26 November 2015, para. 31.
22 Cf., e.g., CAS 2000/A/260, Beashel & Czislowski v. AYF, Award of 2 February 2000, p. 4, and,
more recently, CAS 2012/A/2843, IAAF v. Hungarian Athletics Association & Zoltan Kövago,
Award of 12 October 2012, para. 8. See also Alex Schwazer’s case, as discussed in footnote 19
above. This solution is, in most cases, preferable to waiting until ten days before the beginning
Article R52 CAS Code – Rigozzi/Hasler 1629

The wording of Art. R52(4) seems to rule out recourse to the expedited procedure in 15
the absence of an agreement between the parties to that effect.23 It is submitted that
the President of the Appeals Division cannot grant a request for expedited procedure
upon one party’s application without the agreement of the other(s), unless any refusal
so to proceed by the other party (or parties) is against the rules of good faith. Such
would be the case, for instance, if the sports-governing body were to refuse the
expedited procedure simply in order to prevent the athlete from participating in
the sport for as long as possible, or if the athlete/club had obtained a provisional
measure allowing him/her/it to participate in a competition or tournament and his/
her/its resistance against an expedited procedure were but an attempt to extend the
scope of validity or the effect of that measure by delaying the action on the merits.
If the parties do agree for the proceedings to be expedited, they may also agree on a 16
specific timetable (which will be subject to the panel’s agreement) for the conduct of
the proceedings.24 Alternatively, the Division President or the panel, once constituted,
may suggest such a timetable.25

V CONSOLIDATION

Article R52(5) was enacted in 2010 to codify the practice allowing the CAS to con- 17
solidate two or more appeals against, or “in connection with” the same decision.26
The decision to consolidate will be made either by the panel constituted in the 18
appeal that was brought first in time, or, where no panel has been constituted yet,
by the President of the Appeals Division. In both cases, the deciding authority
enjoys a great deal of discretion but should, in taking its decision, duly consider all
the surrounding circumstances, in particular the stage already reached in the first
arbitration, the likely impact of such decision on the cost-efficiency of the relevant
proceedings and, most importantly, the need to avoid inconsistent awards.27 In
accordance with Art. R52(5), the parties should always be consulted before a decision

of the Games in order to bring the case before the CAS Ad Hoc Division (cf. Art. 1 of the CAS
Arbitration Rules for the Olympic Games). Indeed, all the athletes directly or indirectly concerned
need certainty well before that time and so do the sports-governing bodies involved. The only
advantage, for the athlete bringing the claim, of opting for Ad Hoc Division proceedings rather
than regular CAS appeals proceedings is that the former are always free of charge.
23 Cf., e.g., CAS 2008/A/1595, Deriugina v. FIG, Award of 27 October 2008, paras. 6–8. See also
Mavromati/Reeb, Art. R52, para. 13.
24 Cf., e.g., CAS 2014/A/3665, 3666 & 3667, Luis Suàrez, FC Barcelona & AUF v. FIFA, Award of
2 December 2014, para. 21; CAS 2013/A/3256, Fenerbahçe Spor Kulübü v. UEFA, Award of 11
April 2014, paras. 77–78.
25 Cf., e.g., CAS 2013/A/3233, PAE Giannina 1966 v. UEFA, Award of 9 December 2013, para. 17;
CAS 2015/A/3975, Nassir Ali N. Alshamrani v. AFC, Award of 31 August 2015, paras. 23–24.
See also the sample letter to the parties reproduced in Mavromati/Reeb, Art. R52, p. 468.
26 For a brief discussion of the elements considered by the CAS in deciding whether to consolidate,
cf. Mavromati/Reeb, Art. R52, para. 18, referring to the order rendered in CAS 2011/A/2685,
FC Basel 1893 SA v. SFL & OLA, CAS 2011/A/2686, FC Luzern – Innerschweiz SA v. SFL & OLA,
and CAS 2011/A/2687, FC Thun SA v. SFL & OLA.
27 For a few recent examples of consolidated appeals proceedings, see, e.g., CAS 2010/A/2145,
Sevilla FC SAD v. Udinese Calcio SpA, CAS 2010/A/2146, Morgan De Sanctis v. Udinese Calcio
SpA and CAS 2010/A/2147, Udinese Calcio SpA v. Morgan De Sanctis & Sevilla FC SAD, Award
of 28 February 2011; CAS 2011/A/2615&2618, Thibaut Fauconnet v. ISU, ISU v. Thibaut Faucon-
net, Award of 19 April 2012, p. 6; CAS 2014/A/3647, Sporting Clube de Portugal SAD v. SASP
OGC Nice Côte d’Azur and CAS 2014/A/3648, SASP OGC Nice Côte d’Azur v. Sporting Clube de
 1630 Arbitration in Switzerland – The Practitioner’s Guide

on consolidation is rendered. That said, the language of Art. R52(5) suggests that
where, on balance, the circumstances lead the CAS to the conclusion that the
proceedings should be consolidated, an order to that effect may be issued even if
not all the parties agree to it.28
19 As also noted in connection with Art. R50(2), which provides that cases clearly
involving the same issues may be submitted to the same panel (either by agreement of
the parties or upon a decision by the Division President), one of the main difficulties
with consolidation is dealing with the appointment of arbitrators where more than
two parties are involved and one or more of them have already appointed their
arbitrator(s). In such cases, if necessary, Art. R41 should apply mutatis mutandis
to the constitution of the panel.29
20 In practice, where two or more proceedings are consolidated, the cases are merged
and decided in a single award.30 Where applicable, the parties must each pay their
respective shares of the advances on costs, as ordered by the CAS, before the
proceedings can be set in motion.31 If an appellant fails to pay the advance within
the time limit set for that purpose, his or her appeal will be deemed withdrawn,32
and the award eventually rendered by the CAS will be without effect vis-à-vis the
parties to the appeal that has been withdrawn.33

Portugal SAD, Award of 11 May 2015; CAS 2013/A/3365, Juventus FC v. Chelsea FC and CAS
2013/A/3366, A.S. Livorno Calcio SpA v. Chelsea FC, Award of 21 January 2015.
28 Cf. also Mavromati/Reeb, Art. R52, para. 16.
29 Cf. also the commentary on Art. R54, para. 14 below.
30 Cf. the examples cited in footnote 27 above; see also Mavromati/Reeb, Art. R52, para. 19.
31 Cf. Art. R53(3) and R64.2.
32 Cf. Art. R64.2.
33 BGE 140 III 520 para. 3.2.2 (partially annulling the award rendered on 20 November 2013
in CAS 2012/A/2915, Boca Juniors FC v. Birmingham FC, on the ground that the panel had
disregarded the fact that it no longer had jurisdiction to deal with the player’s appeal, which,
after it had been consolidated with Boca Juniors FC’s appeal, had been deemed withdrawn
due to the player’s inability to pay his share of the advance of costs).
 1631

Article R53: Nomination of Arbitrator by the Respondent

Unless the parties have agreed to a Panel composed of a sole arbitrator or the
President of the Division considers that the appeal should be submitted to a sole
arbitrator, the Respondent shall nominate an arbitrator within ten days after receipt
of the statement of appeal. In the absence of a nomination within such time limit,
the President of the Division shall make the appointment.

I PURPOSE OF THE PROVISION

In cases calling for a three-member panel,1 Art. R53 requires the respondent to 1
nominate an arbitrator, reflecting the appellant’s equivalent obligation under Art.
R48(1). It sets out a relatively short time limit for the respondent to do so (II.), as
well as a fallback mechanism (III.) in case it fails to, ensuring that the arbitration
can proceed with due dispatch.2

II NOMINATION OF RESPONDENT’S ARBITRATOR – TIME LIMIT

Article R53 provides that the respondent has 10 days after the receipt of the statement 2
of appeal to nominate an arbitrator.3 The respondent is expressly reminded of this
time limit in the CAS Court Office letter notifying the statement of appeal.4
Contrary to Art. R48(1), which governs the nomination of an arbitrator by the ap- 3
pellant, Art. R53 does not specify that the respondent’s nominee must be selected
from the CAS list of arbitrators. Nevertheless, this is an obvious consequence of the
mandatory nature of the CAS list pursuant to Arts. S3, S13, S14, S18 and R33 of
the Code.5 Again, the Court Office letter notifying the statement of appeal expressly
draws the respondent’s attention to this requirement, with directions to access the
CAS website, where the list of arbitrators is published.
The appeal may be directed against more than one respondent. For instance, in 4
doping cases, when appealing against a decision taken by a sports-governing body
or anti-doping agency, WADA and/or the relevant international federation may name
as respondents both the athlete concerned by that decision and the body that issued
it.6 In football transfer cases, the old club will often file claims against both the

1 On the rules governing the determination of the number of arbitrators composing CAS panels,
see Art. R50 above.
2 The next and final steps in the panel’s constitution are covered in Art. R54.
3 Thus, the respondent is required to nominate an arbitrator prior to submitting an answer to
the appeal brief (Arts. R55(1) and R51(1) respectively), the objective being to allow the CAS to
form the panel without delay, so that the latter can “take over” the conduct of the arbitration
as soon as possible after the filing of the statement of appeal.
4 Cf. Art. R52, para. 9 above.
5 See also Mavromati/Reeb, Art. R53, para. 9.
6 Cf., e.g., CAS 2009/A/1870, WADA v. Hardy & USADA, Award of 21 May 2010; CAS 2011/A/2384,
UCI v. Contador Velasco & RFEC; CAS 2011/A/2386, WADA v. Contador & RFEC, Award of 6
February 2012. More recently, e.g., CAS 2013/A/3241, WADA v. CONI & Alice Fiorio, Award
of 22 January 2014; CAS 2015/A/4063, WADA v. Czech Anti-Doping Committee & Remigius
Machura Jr., Award of 5 November 2015.
 1632 Arbitration in Switzerland – The Practitioner’s Guide

player and the new club.7 In such instances, the CAS Court Office’s letter forwarding
the statement of appeal will indicate that “the respondents are requested to jointly
nominate an arbitrator”.8 In most cases the need to agree on a joint nomination will
not be problematic for the respondents, either because they have common interests,
or because the body that took the decision under appeal elects to endorse the athlete’s
choice of an arbitrator considering that the athlete is the central party, potentially
facing the heaviest consequences on foot of the prospective CAS decision. If the
respondents cannot agree on the joint choice of an arbitrator within the ten-day
deadline set by Art. R53, they are entitled to request an extension pursuant to Art.
R32(2),9 so as to avoid the appointment being made by the CAS in their stead.10
Nevertheless, it can happen that the respondents cannot find an agreement at all.
If this is due to the fact that one (or more) of them is not co-operative, the other
respondent(s) should notify the CAS Court Office of any such difficulties within
Art. R53’s ten-day time limit, and possibly inform the Court Office of its/their own
proposed nominee. The CAS Court Office is then likely to inform the parties that it
has not received the position of one (or more) of the respondents and to grant that/
those respondent(s) a short additional time limit to state whether it/they agree(s)
to the joint nomination of the arbitrator put forward by the other respondent(s).11
If the respondent(s) so invited to react remains silent, they will be deemed to have
agreed to the appointment of the arbitrator designated by the other respondent(s).12
5 Where a respondent is joined after the initial parties have nominated their arbitrators,
Art. R41.4(4) applies pursuant to Art. R54(6).13

III RESPONDENT’S FAILURE TO NOMINATE AN ARBITRATOR

6 In case the respondent(s) fail(s) to nominate its/their arbitrator within Art. R53’s
time limit (as possibly extended pursuant to Art. R32(2)), the President of the
Division shall make the appointment.14 This provision is in line with the fallback
mechanisms provided in other international arbitration rules:15 its purpose is to avoid
that respondents take advantage of their right to appoint an arbitrator to unduly

7 Cf., e.g., CAS/2004/A/708–713, Mexès v. FIFA; AS Roma v. FIFA; AJ Auxerre v. AS Roma &
Mexès, Award of 11 March 2005.
8 Cf., e.g., CAS 2011/A/2551, F. v. U. & T., decision of 2 September 2011.
9 Any such request should be made before expiry of the time limit (cf. Art. R32(2)).
10 Cf. para. 6 below.
11 Cf., e.g., CAS 2012/O/2736, A. et al. v. P. et al., decision of 23 March 2012; CAS 2012/A/3029,
WADA v. Anthony West & FIM, Award of 22 November 2014, para. 12. See also Mavromati/
Reeb, Art. R53, para. 11, indicating that the additional time limit granted in these cases will
not exceed five days.
12 Mavromati/Reeb, Art. R53, para. 11.
13 Cf. para. 14 at Art. R54 below.
14 Cf., e.g., CAS 2014/A/3485, WADA v. Daria Goltsova & IWF, Award of 12 August 2014, paras.
11–12. According to Mavromati/Reeb, Art. R53, paras. 12–14, in selecting an arbitrator the
President of the Division will consider several criteria and circumstances (in addition to the
fundamental requirement of independence and impartiality in accordance with Art. R33),
including availability, legal and educational background, prior experience with similar cases
(where relevant), languages spoken and nationality.
15 Cf., e.g., ICC Rules, Art. 12(4); SRIA Rules, Art. 8(2).
Article R53 CAS Code – Rigozzi/Hasler 1633

delay the proceedings, and the CAS has demonstrated a willingness to exercise this
prerogative if necessary.16
Where there is more than one respondent and an agreement on a joint nomina- 7
tion cannot be found due to the fact that (at least some of) the respondents have
divergent interests in the dispute, it is highly recommended to ask the CAS to apply
Art. R41.1(2)–(3), by appointing the panel in its entirety.17 This, it is submitted,
is the only way to prevent the problematic situation where one side has had the
opportunity to appoint the arbitrator of its choice while the other side has had to
settle for an arbitrator selected by the CAS.18

16 Cf., e.g., CAS 2010/A/2072, WADA v. Federacao Bahiana de Futebol (FBF) & Carneiro Filho,
Award of 21 October 2010, para. 25; CAS 2007/A/1395, WADA v. NSAM & Cheah & Ng &
Masitah, Award of 31 March 2008, para. 30.
17 Cf. Art. R41.
18 On this issue, see also Kaufmann-Kohler/Rigozzi, paras. 4.80–4.88.
 1634

Article R54: Appointment of the Sole Arbitrator or of the President and

Confirmation of the Arbitrators by CAS
If, by virtue of the parties’ agreement or of a decision of the President of the Division,
a sole arbitrator is to be appointed, the President of the Division shall appoint the
sole arbitrator upon receipt of the motion for appeal or as soon as a decision on
the number of arbitrators has been rendered.
If three arbitrators are to be appointed, the President of the Division shall appoint
the President of the Panel following nomination of the arbitrator by the Respond-
ent and after having consulted the arbitrators. The arbitrators nominated by the
parties shall only be deemed appointed after confirmation by the President of the
Division. Before proceeding with such confirmation, the President of the Division
shall ensure that the arbitrators comply with the requirements of Article R33.
Once the Panel is formed, the CAS Court Office takes notice of the formation of the
Panel and transfers the file to the arbitrators, unless none of the parties has paid
an advance of costs in accordance with Article R64.2 of the Code.
An ad hoc clerk, independent of the parties, may be appointed to assist the Panel.
Her/his fees shall be included in the arbitration costs.
Article R41 applies mutatis mutandis to the appeals arbitration procedure, except
that the President of the Panel is appointed by the President of the Appeals Division.

I PURPOSE OF THE PROVISION

1 Article R54 governs the final stages in the constitution of the tribunal, i.e., as the
case may be, the appointment by the CAS of a sole arbitrator (II.), or where there
is to be a three-member panel and once the two party-appointed arbitrators have
been nominated, the appointment by the CAS of the President of the Panel and the
confirmation of the party-appointed arbitrators (III.), as well as the consequent
issuance by the CAS Court Office of a “Notice of formation” of the panel and the
transfer of the file to the panel (IV.-V.). This provision also governs the possible
appointment of an “ad hoc clerk” (VI.) and, where relevant, the applicability of the
Code’s provisions on multi-party arbitration (VII.).

II APPOINTMENT OF A SOLE ARBITRATOR

2 The first issue regulated by Art. R54(1) is the appointment of a sole arbitrator. This
provision repeats that a single-arbitrator panel will be appointed only “by virtue
of the parties’ agreement or of a decision of the President of the Division” pursuant
to Art. R50(1), which in turn specifies that the President of the Division will, in
reaching such a decision, “tak[e] into account the circumstances of the case”.1 In
practice, the parties will often agree on a sole arbitrator when they also agree that

1 Cf. para. 3 at Art. R50. As discussed in connection with that provision, the default solution
under the CAS Code is that appeals cases will be heard by three-member panels.
Article R54 CAS Code – Rigozzi/Hasler 1635

the proceedings should be conducted in an expedited manner2 or when they are

both not in a position to pay the advance of costs related to the appointment of
three member panel.
When only the appellant is not in a position to pay the advance of costs for a three 3
member panel it will most likely be the President of the Appeals Division who will
decide to appoint a sole arbitrator, in particular when the respondent refuses to
pay its own share of the advance of costs.3 Another instance where the Division
President may decide to appoint a sole arbitrator is where the case does not appear
to be particularly complex and the parties’ will to have a three-member panel hear
the dispute appears to be unreasonable, in particular in disciplinary cases where
the arbitrators’ fees and costs are borne by the CAS.4
Article R54(1) indicates that the President of the Division is to appoint the arbitrator 4
“upon receipt of the motion for appeal or as soon as a decision on the number or
arbitrators has been rendered”. In those instances where it is the President of the
Appeals Division who decides to appoint a sole arbitrator, (as in the examples just
mentioned) it is submitted that the circumstances of the case can be fully assessed
only once the respondent has had the opportunity to file its answer. In any event,
it appears reasonable for the President of the Appeals Division to consult the parties
before imposing a sole arbitrator where the parties cannot agree on the number of
arbitrators, it being understood that while the parties’ views will not be binding on
the Division President, they should at least form part of the “circumstances of the
case” he or she is required to take into account under Art. R50(1).5
Article R54(1) does not state whether the decision of the President of the Appeals 5
Division to appoint a sole arbitrator – where the parties have not agreed on the
number of arbitrators – may be challenged. If a party disagrees with that decision,
it can and must challenge it immediately, in accordance with Art. 190(3) PILS.6
However, it should be noted that the action to set aside will only be successful if it
can be shown that the President of the Appeals Division has disregarded a specific
agreement between the parties as to the tribunal’s composition, it being understood
that the discretion afforded to the Division President under Art. R54(1) (absent an
agreement between the parties) is itself the result of an “the agreement of the parties”
(on the manner in which the tribunal should be constituted) within the meaning of
Arts. 179(1) and 190(2)(a) PILS.

2 Cf., e.g., CAS 2007/A/1363, TTF Liebherr Ochsenhausen v. ETTU, Award of 5 October 2007,
paras. 24–27. More recently, cf., e.g., CAS 2013/A/3453, FC Petrolul Ploiesti v. UEFA, Award of
20 February 2014, paras. 18–23.
3 Cf. Art. R50(1). See also Mavromati/Reeb, Art. R50, para. 15, with reference to CAS 2012/A/2952,
K. Musampa v. Trabzonspor Kulübü, Award of 21 May 2013.
4 Cf. Article R65.
5 In CAS 2008/A/1516/, WADA v. CONI, FITET & Piacentini, the CAS suggested the appointment
of a sole arbitrator to the parties, took note of the fact that they did not object to the proposal
and proceeded accordingly (cf. Award of 11 September 2009, para. 2.7).
6 BGer. 4A_282/2013 para. 5.3.3; see also Art. R50(1) and the relating commentary above.
 1636 Arbitration in Switzerland – The Practitioner’s Guide

III APPOINTMENT OF THE PRESIDENT OF THE PANEL

6 In practice, most appeals cases are heard by a panel of three arbitrators.7 Whereas in
CAS ordinary proceedings (in line with the standard practice reflected in many sets
of arbitration rules),8 the president of a three-member panel is selected by the two
party-appointed arbitrators, without the involvement of the institution9 in appeals
proceedings it is the President of the Appeals Division who appoints the presiding
arbitrator.10 Although Art. R54(2) provides that the President of the Division shall
consult the party-appointed arbitrators in relation to the appointment of the President
of the Panel,11 the Division President enjoys the widest discretion in making the
appointment. In other words, the parties have no influence – direct or indirect – on
the appointment of the President of the Panel.12
7 Originally, this solution was devised to speed up the proceedings. However, given
the time that is actually required, on average, by the Division President to appoint
the president, it is submitted that it would be preferable for the CAS to grant the
party-appointed arbitrators a short time limit, for instance ten days, to try and agree
upon the selection of a president for the panel. This change in practice could help
alter the perception that the sports-governing bodies have, at least indirectly,13 a
preponderant influence on the appointment of the panel.14

7 Cf. paras. 2–3 at Art. R50 above.

8 Cf., e.g., Swiss Rules Art. 8(2).
9 Cf. Art R40.2(3).
10 This rule is mandatory under the CAS Code, whereas the similar provision contained in the
ICC Rules (Art. 12(5)), contemplating the appointment of the presiding arbitrator by the ICC
Court, only operates when the parties have not “agreed upon another procedure” for the said
appointment.
11 In practice, the CAS prepares a short list of names which is circulated to the party-appointed
arbitrators with the indication that any objections on their part with respect to the suggested
appointees should be raised within a given (short) time limit. Mavromati/Reeb, Art. R54, para.
2, note that “[s]imple preferences expressed by the party-appointed arbitrators are generally not
taken into consideration” in this process.
12 It is submitted that it should be appropriate for the party-appointed arbitrators to communicate
the short list of possible presidents prepared by the CAS to their appointing parties, to ensure
that the parties (and/or their counsel) do not have major issues with the appointment of any
one of the shortlisted potential presidents (irrespective of whether they consider that their
discomfort amounts to a ground for challenge). The party-appointed arbitrators will then be
free to decide whether to pass on any such concerns to the Division President. If one of the
party-appointed arbitrators decides to proceed in this manner, he or she should in any event
inform the arbitrator appointed by the other party of such contact, so that the latter can make
the same enquiry with his or her appointing party, to make sure that the principle of equal
treatment is fully respected.
13 The President of the Appeals Division is appointed by the ICAS, a body which is predominantly
composed of personalities appointed by the sports-governing bodies. Technically, the President
of the Division would have the possibility to ensure that no arbitrator who is perceived as
“athletes-friendly” is ever appointed as president of a panel.
14 On the other hand, it is true that Art. R54(2) allows the CAS to “launch” arbitrators who
have been recently added on the list of arbitrators and may not be sufficiently well-known
to be appointed by the parties, which helps extend the number of arbitrators on the list that
are actually appointed (and may perhaps also help address the concerns that are often raised
with respect to the fact that in practice the panel presidents appear to be drawn from a rather
small “pool” of arbitrators). Concurring on this point, see Mavromati/Reeb, Art. R54, para. 2,
footnote 1 (adding that [i]n any event, the parties will have the opportunity to challenge the
appointment of the chairman in the event that such person would not comply with the preroga-
tives of impartiality and independence of Article R33 CAS Code”, which however defeats the
Article R54 CAS Code – Rigozzi/Hasler 1637

IV CONFIRMATION OF THE ARBITRATORS AND NOTICE OF

FORMATION OF THE PANEL

Article R54(2) at the end provides that the arbitrators nominated by the parties 8
shall be deemed appointed after confirmation by the President of the Division.15
A party-appointed arbitrator should be confirmed only once the President of the
Division is assured that the arbitrator fulfills the requirements of Art. R33, namely
that he or she is impartial and independent of the parties, and “shall be available
as required to complete the arbitration expeditiously”. Despite widespread concerns
about the increasing delays in the rendering of awards, it appears that, unlike the
ICC, the CAS is not using the confirmation process as an incentive for the arbitrators
to decline appointment when their availability is insufficient to handle the case
with due dispatch. In practice, we are not aware of any case in which an arbitrator
was not confirmed by the CAS sua sponte (i.e., absent an objection by one of the
parties or by another member of the proposed panel).16 The CAS appears to apply
a similar policy of self-restraint with respect to the preemptive control of the arbitra-
tors’ independence and impartiality prior to confirmation. In reality, the President
of the Division will simply leave it to the parties to challenge an arbitrator if they
consider there are valid grounds for doing so. It is submitted that a stricter approach
by the CAS might be preferable as – given the liberal approach of both the ICAS17
and the Supreme Court18 towards arbitrator challenges – a party will think twice
before challenging an arbitrator. Needless to say that, even where a party takes the
risk of challenging an arbitrator and the challenge is successful, it would still be
preferable to avoid such (unnecessary) ancillary proceedings by adopting a more
rigorous approach at the confirmation stage.
Article R54(3) provides that the CAS Court Office “takes notice” of the panel’s forma- 9
tion (i.e., when the President of the Division has appointed the sole arbitrator, or
confirmed the party-appointed arbitrators and appointed the president of the panel).
In practice, the CAS Court Office writes to the parties enclosing a formal “Notice of
formation of a Panel” (in French, Avis de désignation d’une formation) in which the
Secretary General records that the arbitral panel called upon to resolve the dispute
is composed of the arbitrator(s) as named in the Notice. The Notice of formation is
generally accompanied by copies of the Acceptance and statement of independence

purpose of limiting the co-arbitrators’ and possibly the parties’ involvement at the appointment
stage for the sake of speed). Be that as it may, the obvious drawback of such a policy is that
an arbitrator who is relatively “new” on the list may not be as experienced in CAS arbitration
as his or her co-arbitrators. On balance, we see no reason why the co-arbitrators should not
be given a chance to agree on the chair.
15 As noted by Mavromati/Reeb, Art. R54, para. 6, only the Division President, as opposed to
other CAS officers (e.g., the Secretary General) can confirm appointee arbitrators. Moreover,
the confirmation requirement under Art. R54(2) cannot be waived by the parties (ibid., para.
4 in fine).
16 Cf. also Mavromati/Reeb, Art. R54, para. 4, confirming this. For an example of a case where a
party objected to the appointment of an arbitrator prior to his confirmation, cf. CAS 2010/A/2098,
Sevilla FC v. RC Lens, Award of 29 November 2010, paras. 23–29. Before confirming the arbitra-
tors, the CAS should also verify that they possess any qualifications as may be stipulated in
the relevant arbitration agreement (cf., e.g., Art. 63(2) of the UEFA Statutes, providing that
“[o]nly arbitrators who have their domicile in Europe shall be competent to deal with disputes
submitted to the CAS according to the present Statutes”).
17 Cf. Art. R33.
18 Cf. Arroyo, above commentary on Art. 190 PILS (Chapter 2, Part II), para. 31; see also Art. R33.
 1638 Arbitration in Switzerland – The Practitioner’s Guide

forms signed by the arbitrator(s) upon accepting his/her (or their) nomination.19
Unless the relevant arbitrators’ declarations had already been circulated to the
parties,20 receipt of the Notice of formation triggers the running of the seven-day
time limit for challenge under Art. R34(1).21 In the cover letter accompanying the
Notice of formation, the CAS will generally also indicate that the case file has been
or is about to be transferred to the panel.

V TRANSFER OF THE FILE TO THE ARBITRATORS

10 Article R54(3) specifies that the arbitration file is transferred to the arbitrators only
once the CAS has taken notice of the formation of the panel, and, if the parties have
been requested to pay an advance on costs in accordance with Art. R64.2,22 once
the advance of costs has been received by the CAS. The language of Art. R54(3) is
slightly misleading in that it suggests that it may be sufficient for one of the parties
to pay “an” advance on the costs. However, as becomes clearer in reading Art.
R64.2, what is required before the file can be transmitted to the panel is payment
of the entire advance of costs, as fixed by the CAS.23 In practice this means that,
more often than not, the arbitrators will receive the file only once the exchange of
the written submissions has already been completed. It also means that, de facto,
the respondent can delay the arbitration by not paying its share of the advance on
costs. In such instances, the CAS will fix a time limit for the appellant to substitute
for the respondent.24

19 Cf. Art. R33. Since the 2013 revision of the Code, these forms refer to both independence and
impartiality. The Acceptance form also confirms that the arbitrator signing it is familiar with
the CAS Code, and able and available to deal with the case in conformity with the Code and
in the language of the proceedings.
20 The CAS’s practice is to circulate the party-nominated arbitrators’ Statements of acceptance
prior to circulating the Notice of formation of the panel if those Statements contain disclosures.
In such cases, the CAS Court Office cover letter circulating the relevant Statement will draw the
parties’ attention to the disclosure(s) made by the arbitrator signing it, and to the time limit
for bringing a challenge pursuant to Art. R34(1). Cf. also Mavromati/Reeb, Art. R54, para. 5;
BGer. 4A_620/2012 paras. 3.5–3.6. The Statement of acceptance and independence signed by
the president of the panel (appointed by the Division President) will be circulated together with
the Notice of formation of the panel, and thus its contents will become known to the parties
only upon receipt of the Notice.
21 Cf. Art. R34 and Orelli, above commentary on Art. 180 PILS (Chapter 2, Part II), paras. 21–26;
cf. BGE 129 III 445 para. 4.2.2.1.
22 Cf. Art. R64.2.
23 See also Mavromati/Reeb, Art. R64, para. 16, confirming that the “entire amount of the advance
of costs must be paid” for the procedure to be initiated. That being said, the actual practice
appears to be relatively inconsistent, with the Court Office sometimes forwarding the file to
the panel at a moment when only one party’s share of the advance has already been paid (cf.
also Mavromati/Reeb, Art. R54, para. 3).
24 Failing which the appeal will be deemed withdrawn (cf. Art. R64.2(2)). This will obviously
put an impecunious athlete appealing against a sports-governing body’s decision in a difficult
situation (cf. also Rigozzi, Jusletter of 13 September 2010, pp. 9–10). However, in such a case,
the athlete should be entitled to benefit from the CAS legal aid fund in accordance with the
Guidelines on Legal Aid issued on 1st September 2013 (see in particular Art. 6 of the Guidelines).
On the subject of legal aid before the CAS, see the commentary on Art. R64 below.
Article R54 CAS Code – Rigozzi/Hasler 1639

VI APPOINTMENT OF AN AD HOC CLERK

The appointment of an ad hoc clerk is becoming standard practice in CAS arbitra- 11

tions.25 This is understandable in light of the increasing workload of the CAS and the
consequential reality that the institution’s permanent staff of counsel do not always
have sufficient availability to assist the arbitrators, in particular in connection with
the drafting of the award.26
The process for selecting ad hoc clerks is not clearly regulated by the Code, which 12
only states that a clerk may be appointed to assist the panel and that he/she must
be independent of the parties.27 Over the years, the CAS has established an unofficial
list of CAS ad hoc clerks.28 They are often young qualified lawyers or barristers from
different jurisdictions or legal backgrounds, who also possess the relevant linguistic
skills. The CAS ensures that ad hoc clerks have access to the required know-how with
respect to the CAS’s practice and procedure in order to provide efficient assistance
to panels, in particular by inviting them to attend the CAS seminars.
Article R54(4) at the end specifies that the ad hoc clerk’s fees “shall be included 13
in the arbitration costs”. According to Annex II to the Code, entitled Schedule of
Arbitration Costs, the ad hoc clerk’s remuneration “is fixed by the Secretary General
of the CAS on the basis of the work reports provided and on the basis of the time
reasonably devoted to the case at stake”.29

25 Cf. Mavromati/Reeb’s commentary under Art. R40 (which is, in relevant part, identical to Art.
R54), noting that the insertion of that provision’s last paragraph (and of Art. R54’s 4th paragraph)
in the 2010 CAS Code edition codified “a long-time practice concerning the appointment of ad
hoc clerk[s] in order to assist the Panel” (Mavromati/Reeb, Art. R40, para. 36), but also that
“the appointment of an ad hoc clerk should not be trivialized, but […] should only be reserved
in specific cases of high complexity” (ibid., para. 42 in fine), without further elaboration.
26 For a discussion of the role and functions of ad hoc clerks, as opposed to CAS counsels, cf.
Mavromati/Reeb, Art. R40, paras. 37 and 39.
27 This is in line with the provisions in other institutional arbitration rules dealing with the appoint-
ment of secretaries to the tribunal, cf., e.g., Art. 15(5) Swiss Rules. In practice, the appointment
of an ad hoc clerk is often suggested by the president of the panel. In general, the parties will
be informed of the clerk’s appointment with the Order of procedure that is circulated by the
CAS Court Office for their approval and signature prior to the hearing (cf. para. 29 at Art. R57
below). As noted by Mavromati/Reeb, Art. R54, para. 9, ad hoc clerks are required to fill in
a declaration of independence, which is almost identical to the Statement of acceptance and
independence filled in by CAS arbitrators. Mavromati/Reeb also indicate (at Art. R40, para. 40)
that once notified of the appointment of an ad hoc clerk, the parties will have the possibility to
raise objections, be it to question the need for such appointment in general or to express any
reservations they may have on the independence of the individual selected as clerk. According
to those same (authoritative) commentators, the challenge procedure under Art. R34 does not
apply to CAS ad hoc clerks, who are not arbitrators. Contra: Noth/Haas, para. 11 at Art. R40
above. Be that as it may, Mavromati/Reeb state that so far, no challenges have been brought
against ad hoc clerks, which is probably due to the fact that, as they explain, possible conflicts
are screened at the selection stage, either by the CAS Court Office or by the panel (Mavromati/
Reeb, Art. R40, para. 41).
28 Cf. also Mavromati/Reeb, Art. R40, para. 36.
29 The latest version of the Schedule of Arbitration Costs (currently dated 1st January 2017) is
available on the CAS website at: <http://www.tas-cas.org/en/arbitration/arbitration-costs.
html>. With regard to ad hoc clerks, the Schedule indicates that “in principle, an hourly fee
of CHF 150 to CHF 200 is taken into account depending on the qualifications of the clerk”.
 1640 Arbitration in Switzerland – The Practitioner’s Guide

VII MULTI-PARTY ARBITRATION

14 Article R54(5) indicates that Art. R41 on multiparty arbitration is applicable mutatis
mutandis to appeals arbitration procedures, with the specifically stated (and logical)
qualification that the President of the Panel is appointed by the President of the
Appeals Division.30

30 Cf. Art. R41. For a practical example, cf. CAS 2004/A/748, Russian Olympic Committee & Ekimov
v. IOC, Decision on Request for intervention of 5 July 2005.
 1641

Article R55: Answer of the Respondent – CAS Jurisdiction

Within twenty days from the receipt of the grounds for the appeal, the Respondent
shall submit to the CAS Court Office an answer containing:
– a statement of defence;
– any defence of lack of jurisdiction;
– any exhibits or specification of other evidence upon which the Respondent
intends to rely;
– the name(s) of any witnesses, including a brief summary of their expected
testimony; the witness statements, if any, shall be filed together with the
answer, unless the President of the Panel decides otherwise;
– the name(s) of any experts it intends to call, stating their area of expertise,
and state any other evidentiary measure which he requests.
If the Respondent fails to submit its answer by the stated time limit, the Panel may
nevertheless proceed with the arbitration and deliver an award.
The Respondent may request that the time limit for the filing of the answer be
fixed after the payment by the Appellant of its share of the advance of costs in
accordance with Art. R64.2.
The Panel shall rule on its own jurisdiction. It shall rule on its jurisdiction irrespec-
tive of any legal action already pending before a State court or another arbitral
tribunal relating to the same object between the same parties, unless substantive
grounds require a suspension of the proceedings.
When an objection to CAS jurisdiction is raised, the CAS Court Office or the Panel,
if already constituted, shall invite the opposing party (parties) to file written sub-
missions on the matter of CAS jurisdiction. The Panel may rule on its jurisdiction
either in a preliminary decision or in an award on the merits.
Within twenty days from the receipt of the grounds for the appeal, the Respondent
shall submit to the CAS Court Office an answer containing:
– a statement of defence;
– any defence of lack of jurisdiction;
– any exhibits or specification of other evidence upon which the Respondent
intends to rely;
– the name(s) of any witnesses, including a brief summary of their expected
testimony; the witness statements, if any, shall be filed together with the
answer, unless the President of the Panel decides otherwise;
– the name(s) of any experts it intends to call, stating their area of expertise,
and state any other evidentiary measure which it requests.
If the Respondent fails to submit its answer by the stated time limit, the Panel may
nevertheless proceed with the arbitration and deliver an award.
 1642 Arbitration in Switzerland – The Practitioner’s Guide

The Respondent may request that the time limit for the filing of the answer be
fixed after the payment by the Appellant of its share of the advance of costs in
accordance with Art. R64.2.
The Panel shall rule on its own jurisdiction. It shall rule on its jurisdiction irrespec-
tive of any legal action already pending before a State court or another arbitral
tribunal relating to the same object between the same parties, unless substantive
grounds require a suspension of the proceedings.
When an objection to CAS jurisdiction is raised, the CAS Court Office or the Panel,
if already constituted, shall invite the opposing party (parties) to file written sub-
missions on the matter of CAS jurisdiction. The Panel may rule on its jurisdiction
either in a preliminary decision or in an award on the merits.

I PURPOSE OF THE PROVISION

1 Article R55 sets out the requirements to be satisfied by the respondent in filing its
answer to the appeal brief.1 It provides guidance as to the answer’s required contents
(II.), as well as the time limit within which it must be filed. In this connection, Art.
R55 opens the possibility for the respondent to make the fixing of the time limit for
the filing of the answer contingent upon payment by the appellant of his or her share
of the advance of costs (III.). As for the actual filing modalities and timing, due note
should be taken of the changes made to Art. R31 in the Code’s latest edition (IV.).
Should the respondent fail to submit an answer, Art. R55 restates the important
principle that the award may be rendered by default if necessary (V.). Further, since
the Code’s 2012 revision, Art. R55 also deals expressly with issues of jurisdiction,
essentially reflecting the relevant provisions of the PILS (VI.). Finally, respondents
need to be aware that, since its 2010 revision, the Code no longer permits the filing
of counterclaims (including cross- or joint appeals) in appeals proceedings (VI.).

II CONTENTS OF THE ANSWER2

2 As previously noted,3 the parties’ written submissions in CAS appeals proceedings

are, as a rule, limited to a single exchange.4 Accordingly, the respondent’s statement
of defence (to be set out in its answer to the statement of appeal) must include all the
factual allegations and legal arguments5 on which the respondent relies to request
the (total or partial) dismissal of the appeal. Legal arguments can be both substantive

1 Cf. Art. R51.

2 In addition to the comments made here, readers are referred to the commentary to Art. R51
(Appeal Brief), which applies, in pertinent part, also with respect to the contents of the Answer.
More precise cross references to the relevant passages in that commentary will be provided in
the following paragraphs.
3 Cf. para. 7 at Art. R51 above with respect to the claimant.
4 Cf. paras. 2–3 at Art. R56 below.
5 On the general structure and format that tend to be adopted for written submissions in appeals
proceedings, cf. the comments provided under Art. R51 (paras. 7–24). While the structure of the
answer may be influenced by that of the appeal brief, one important practical recommendation
that applies regardless of the structure adopted is that paragraphs should be numbered and the
evidence relied upon in support of each allegation should be clearly indicated.
Article R55 CAS Code – Rigozzi/Hasler 1643

and procedural, including jurisdictional challenges. In this respect, Art. R55(1)

expressly requires that any defence of lack of jurisdiction be raised with the answer.6
Article R55(1) further specifies that the answer must also contain all the exhibits7 3
and other evidence the respondent intends to rely upon, e.g., supporting documents,
witness statements and expert reports.
Even if the respondent chooses not to file witness statements, its answer (just like 4
the appeal brief on the appellant’s side)8 must indicate the names of any witnesses9
and/or experts on whose testimonies or opinions it intends to rely. In order to limit
the risk of surprise/ambushing where a party does not file witness statements and
experts reports, the Code has been revised in 2013 to provide that the answer (like the
appeal brief) shall also contain a “brief summary of th[e named witnesses’] expected
testimony” and of the named experts’ “area of expertise”. There may be situations
where such summaries are insufficient. It is submitted that, where necessary for the
sake of good order and the fair and efficient conduct of the proceedings, the panel
should, either upon a request by the appellant or sua sponte, invite the respondent
to further specify the summary information it has provided.10
Article R55(1) suggests that witness statements can be provided at a later stage only if 5
the President of the panel permits it. It is submitted that this provision applies solely
if the relevant witnesses were named with the answer. If not, the President of the
panel can allow witness statements only if the requirements of Art. R56(1) are met.11
The answer and any documents accompanying it must be submitted in the language 6
of the proceedings.12 If documents are submitted in languages other than the language
of the proceedings, the CAS will normally order the filing of translations within a
short time frame.
The answer’s required format and filing modalities are specified in the letter from 7
the CAS Court Office notifying the appeal brief to the respondent. By reference to
Art. R31’s provisions on notifications and communications in CAS proceedings, and
unless the parties have agreed to use the CAS’s E-filing service, the Court Office will
require that the answer be filed by courier (or registered mail), indicate the number
of hard copies (whether on paper or digital medium) that need to be submitted in
the specific case and remind the respondent that exhibits may be filed by courier
(or registered mail), saved on a digital medium, or by e-mail.

6 Cf. below, paras. 15–20.

7 For the definition of “exhibit”, cf. the comments provided under Art. R51 (paras. 14–16).
8 Cf. the commentary on Art. R51 above (paras. 18–22).
9 On the concept of “witness”, cf. the comments provided under Art. R51 (paras. 18–20).
10 The same applies, of course, to the summaries provided by the appellant in his or her appeal
brief, as noted in connection with Art. R51; cf. paras. 18 and 21–22 at Art. R51 above.
11 Cf. R56(1). See also Mavromati/Reeb, Art. R55, para. 12. As noted ibid., in CAS 2012/A/2874,
G. Rasiak v. AEL Limassol, Award of 31 May 2013, para. 71, the panel underscored that Art.
R55(1) only refers to witnesses and experts, but not party representatives, meaning that the
latter are not subject to the requirement that a summary of their expected testimony should
be included in the answer, although such testimony remains subject to Art. R56 and can thus
not exceed the scope of the parties’ written submissions (in other words, it must “be restricted
to what has been stated before”).
12 Cf. the commentary on Arts. R29 and R48 above.
 1644 Arbitration in Switzerland – The Practitioner’s Guide

III TIME LIMIT TO SUBMIT THE ANSWER

8 The above-mentioned letter from the CAS Court Office also reminds the respondent
that, as provided in Art. R55(1) ab initio, its answer must be filed within twenty
days from receipt of the original of the appeal brief forwarded by the CAS.13
9 The time limit to file the answer can be extended upon a reasoned request. The
requirements are the same as those applying to requests for the extension of the
time limit to submit the appeal brief.14 Just like the time limit for filing the appeal
brief, the time limit under Art. R55(1) may turn out to be unrealistic in cases
presenting complex scientific issues that can only be addressed with the support
of expert evidence, which is time-consuming to gather.15 Moreover, it is submitted
that extensions aimed at obtaining a time limit to file the answer that is the same
as the time limit the appellant was granted to file his or her appeal brief should be
granted without difficulties, as a matter of equal treatment.
10 In accordance with Arts. R55(3) and R64(2), as amended in the 2010 and 2013
revisions of the Code, the respondent may make a request to the CAS Court Office
for the time limit to file the answer to be fixed after payment by the appellant of
his or her share of the advance of costs.16 It is submitted that such a request should
be made without delay: it would run counter to procedural good faith to artificially
extend the time limit for submitting the answer by filing a request pursuant to
Art. R55(3) just before its expiry. A way of avoiding any abuse might be to simply
suspend the time limit from the date of the request until the date of the payment of
the advance of costs.17 In any event, the respondent should not be allowed to rely
on the possibility offered by Art. R55(3) with respect to the share of the advance
that the appellant may have been required to pay, pursuant to Art. R64.2(2), to
substitute for the respondent’s own failure to do so.18

13 The fact that the appellant’s counsel may have sent a courtesy copy of the appeal brief directly
to respondent’s counsel is irrelevant for the purposes of the calculation of this time limit. In
other words, the determinative event for the running of time is receipt of the CAS’s notification
of the appeal brief. The observations made in connection with the calculation of time limits
under Arts. R49 and R51(1) apply, mutatis mutandis, also with respect to Art. R55 (cf. paras.
7–16 at Art. R49; and para. 3 at Art. R51 above). Mavromati/Reeb, Art. R55, para. 2, cite CAS
2010/A/2159, Al-Kohr Sports Club v. Jean-Paul Rabier, Award of 17 January 2011 (unpublished),
para. 3.10, as an example of a case where the answer was not admitted because it had been
filed after the expiry of the time limit under Art. R55(1). As those same authors note (at Art.
R55, para. 3), an exception can be made to the inadmissibility of a belated answer if Art. R56’s
conditions apply.
14 In particular, it is important to note that the request must be made before the expiry of the set
time limit (cf. para. 6 at Art. R51 above).
15 Cf. CAS 2009/A/1752, Devyatovskiy v. IOC and CAS 2009/A/1753, Tsikhan v. IOC, Award of 6
June 2010, paras. 3.16 – 3.21, where the deadline to file the respondent’s answer was extended
twice.
16 In CAS 2011/A/2492, Leali v. CONI, Award of 15 March 2012, para. 9.2, the Panel held that
the twenty-day time limit runs from receipt by the respondent of the CAS’s notification of the
appellant’s payment.
17 To these authors’ knowledge, on one occasion where the respondent made a request pursuant to
Art. R55(3), the CAS Court Office, having granted the request, decided to withhold forwarding
the appeal brief until such payment had been made (CAS 2015/A/4188, AS Monaco v. FC Sevilla,
Court Office letter dated 2 September 2015).
18 As submitted in the previous edition of this commentary, the addition of the words “his share”
in the 2013 version of this provision (replaced by “its share” in the 2016 version) clarified that
the intention was to refer to the appellant’s share. Not entirely straightforward on this point,
Article R55 CAS Code – Rigozzi/Hasler 1645

IV TIMELINESS AND NUMBER OF COPIES

As a result of the changes made to the CAS Code in 2016, it is important to note that 11
it is now again19 possible to file the answer by facsimile [or email] before midnight
on the last day of the time limit, provided hard copies are sent by courier or registered
mail the next following business day. Exhibits “may be sent to the CAS Court Office
by electronic mail”, provided “they are listed and that each exhibit can be clearly
identified”.20
It is submitted that the filing of an incorrect number of copies of the answer is of 12
no effect with regard to the observance of the time limit. In such a case, a short
additional deadline should be given to the respondent for completing the filing.

V FAILURE TO SUBMIT ANSWER

According to Art. R55(2), in the event that the respondent fails to submit its answer 13
within the stated time limit, the Panel may nevertheless proceed with the arbitration
and deliver an award without the benefit of a written answer or without taking into
account an answer that was filed out of time.21
The award will be considered as having been rendered by default only if the 14
respondent communicates to the CAS that it does not intend to participate in the
proceedings22 or if the respondent simply ignores the CAS’s communications and
does not appear at the hearing.23 The arbitrators’ authority to proceed with the
arbitration in case of default is in accordance with Swiss arbitration law. However,
the CAS must make every effort to allow the defaulting party to assert its rights,24
which means that the Court Office must continue to send any communication/
notification to the defaulting party throughout the proceedings, and in particular
the invitation to attend the hearing.25

Mavromati/Reeb, Art. R55, para. 7, who speak of “the share”, with reference to an unpublished
award (CAS 2012/A/2775).
19 After removing (in the Code’s 2013 edition) the possibility of meeting the deadline by filing
written submissions via facsimile, the CAS has reintroduced it in the current version of the Code
(adding also the possibility of filing by email). Cf. Art. R31(3)’s text in the marked-up version
of the 2013 Code that was appended to Rigozzi/Hasler/Quinn, Jusletter of 3 June 2013, and
Art. R31(3) as set out in the document “Amendments to the Code of Sports-related Arbitration
(2016 edition), published by the CAS together with the latest version of the Code (available at
<http://www.tas-cas.org/fileadmin/user_upload/Amendments_to_the_Code__2016_.pdf>).
20 Cf. Art. R31(3) with regard to the filing of the answer and Art. R31(5) with respect to exhibits.
On all these points, cf. Noth/Haas, paras. 9–11 at Art. R31 above, and Mavromati/Reeb, Art.
R31, paras. 23, 25–26.
21 Cf. CAS 2009/A/1828 & 1829, Olympique Lyonnais v. US Soccer Federation (Bompastor) &
Olympique Lyonnais v. US Soccer Federation (Abily), Award of 18 March 2010, paras. 32–35.
22 Cf. CAS 2003/A/505, UCI v. Pitts, USA Cycling & USADA, Award of 19 December 2003, paras.
36–37.
23 Cf. CAS 2006/A/1156, FC Molenbeek Brussels v. FC Levadia, Award of 27 November 2009, para.
19.
24 Cf., e.g., Kaufmann-Kohler/Rigozzi, para. 6.20, with further references.
25 Cf., e.g., CAS 2013/A/3050, WADA v. Andrey Krylov & FIG, Award of 10 June 2013, para. 65;
CAS 2013/A/3077, WADA v. Ivan Mauricio Casas Buitrago & GCD, Award of 4 December 2013,
paras. 15–19; CAS 2013/A/3347, WADA v. Polish Olympic Committee v. Przemyslaw Koterba,
Award of 22 December 2014, paras. 34–38.
 1646 Arbitration in Switzerland – The Practitioner’s Guide

VI CAS JURISDICTION

15 As mentioned above, Art. R55(1) directs that any objections to CAS jurisdiction
must be set out in the answer. This provision reflects Art. 186(2) PILS, according
to which “[a] plea of lack of jurisdiction must be submitted prior to any defence
on the merits”.26 This means that the respondent will be estopped from submitting
a jurisdictional challenge once it has filed its answer, whether in the course of the
CAS arbitration27 or in the context of an action to set aside the award before the
Supreme Court.28
16 Articles R55(4) and R55(5) were introduced with the 2012 Code revision to expressly
set out the applicable principles of Swiss arbitration law regarding jurisdictional
issues.
17 The first sentence of Art. R55(4) provides that “[t]he Panel shall rule on its own
jurisdiction”, mirroring the principle of “Kompetenz-Kompetenz” pursuant to Art.
186(1) PILS.
18 The second sentence of Art. R55(4) restates Art. 186(1bis) PILS, allowing CAS panels
to rule on their jurisdiction “irrespective of any legal action already pending before a
State court or another arbitral tribunal relating to the same object between the same
parties”. Unfortunately, the English version of this provision in the Code is slightly
misleading in the manner it sets out the exception to the above-stated principle: a
proper translation of the relevant wording of Art. 186(1bis) PILS (and of the French
version of Art. R55(4))29 should read “[…] unless there are serious reasons [rather
than ‘substantive grounds’] to stay the proceedings”.30 As already mentioned, CAS

26 See Berger, above commentary on Art. 186 PILS (Chapter 2, Part II), paras. 40–41. As recalled
in CAS 2013/A/3409, FAHB & consorts v. IHF, Award of 28 August 2014, paras. 108–112, Art.
186(2) PILS does not dictate how an objection to jurisdiction must be raised, leaving room
for arbitration rules to regulate this aspect. This is what Art. R55(1) does by specifying that
the objection must be raised in the respondent’s answer. As to the form of such an objection,
Swiss law does not require the use of specific words or expressions to convey it. To determine
whether it is faced with a jurisdictional objection, the tribunal should construe the respondent’s
statements in accordance with the general rules on contract interpretation (Art. 18 CO).
27 Cf. CAS 2002/A/395, UCI v. de Paoli & FCI, Award of 19 November 2002, p. 5 para. 14.
28 See Arroyo, above commentary on Art. 190 PILS (Chapter 2, Part II), paras. 47–49. It should
also be noted here that in the uncommon circumstances where a party is allowed to intervene
in the proceedings pursuant to Art. R41.3 and then afforded the opportunity to file an applica-
tion “having the same content as an answer as described under Art. R55” challenges to CAS
jurisdiction are unlikely to be successful if the main parties have already “explicitly agreed
and [given] their consent [to CAS jurisdiction] in the Appeal Brief and Statement of Defence
respectively” (CAS 2008/A/1609, Ozkan v. MKE Ankaragucu Spor Kulubu, Award of 6 October
2009, paras. 3.2 and 6.5–6.7).
29 The wording of the French version of Art. R55(4), second sentence (which is to prevail in case
of discrepancy with the English version, as provided in Art. R69), is identical to that of Art.186(1
bis) PILS. The English version reads as follows: “[t]he Panel shall rule on its own jurisdiction.
It shall rule on its jurisdiction irrespective of any legal action already pending before a State
court or another arbitral tribunal relating to the same object between the same parties, unless
substantive grounds require a suspension of the proceedings”. The French version provides
that “[l]a Formation statue sur sa propre compétence. Elle statue sur sa compétence sans égard à
une action ayant le même objet déjà pendante entre les mêmes parties devant un autre tribunal
étatique ou arbitral, sauf si des motifs sérieux commandent de suspendre la procédure”.
30 Contra, Mavromati/Reeb, Art. R55, para. 24, footnote 29, who maintain that “substantive
grounds seems to be the right expression (‘substantial’, ‘considerable’ grounds in order to stay
the proceedings)”.
Article R55 CAS Code – Rigozzi/Hasler 1647

panels have interpreted the second sentence of Art. R55(4) as meaning that the mere
possibility that another court seized with the case might render a different decision
than that of the CAS was “manifestly not” a serious reason within the meaning of
Art. 186(1bis) PILS.31
The first sentence of Art. R55(5) states that the CAS “shall invite the parties to file 19
written submissions on the matter of CAS jurisdiction” thus codifying the previous
practice according to which the appellant should be given an opportunity to file a
written response to the jurisdictional challenge.
The second sentence of Art. R55(5) deals with the so-called bifurcation of the 20
proceedings. Pursuant to Art. 186(3) PILS “the arbitral tribunal shall, as a rule,
decide on its jurisdiction by [a separate] preliminary award”. In practice, the CAS can
order a bifurcation upon a reasoned request or sua sponte when the jurisdictional
challenge is straightforward and can be easily dealt with separately in a time- and
cost efficient way and/or it would otherwise be procedurally unfair to require the
respondent to prepare a full-fledged submission answering also the appellant’s
arguments on the merits where it appears likely that the case may not even reach
the merits phase. Art. R55(5) reads: “[t]he Panel may rule on its jurisdiction either
in a preliminary decision or in an award on the merits”, indicating that, contrary to
the position under Art. 186(3) PILS,32 in CAS arbitrations there is no presumption in
favor of bifurcation. This approach is, in our opinion, the better one in CAS appeals
cases, as a bifurcation will inevitably slow down the proceedings and bring with it
an inherent risk of abuse on the part of the respondent.

VII COUNTERCLAIMS AND CROSS-APPEALS

Further to the 2010 revision of the Code, Art. R55 no longer provides that the 21
respondent’s answer should set out “any counterclaims”,33 meaning that it is no
longer possible to file counterclaims in CAS appeals procedures. As noted in the
commentary that was released by the CAS at the time, “[t]he persons and entities
which want to challenge a decision [have] to do so before the expiry of the applicable
time limit for appeal”.
It has been argued that the rationale for this amendment was to prevent respondents 22
from, in effect, benefiting from a longer time limit to “appeal” (in the form of a
counterclaim) against the challenged decision than the appellant himself.34 As
submitted in the previous edition of this commentary, while this may be correct,
the solution adopted with the 2010 amendment to Art. R55 could be too drastic and
potentially unfair in some circumstances, as well as costly and inefficient.35 The
CAS has been strict in its application of the exclusion of counterclaims under the

31 Cf. para. 43 at Art. R47 above; CAS 2009/A/l881, El-Hadary v. FIFA & Al-Ahly SC, Preliminary
Award of 7 October 2009, paras. 66–68; cf. also BGer. 4A_428/2011 para. 5.2.2.
32 Under this provision, “[t]he arbitral tribunal shall, as a rule, decide on its jurisdiction by
preliminary award” (emphasis added).
33 Art. R39, which applies to ordinary proceedings, has remained unchanged and thus still allows
the filing of counterclaims with the respondent’s answer.
34 Cf. Stincardini, p. 87.
35 Rigozzi/Hasler, para. 22 at Art. R55 (2013); cf. also Rigozzi, Jusletter of 13 September 2010,
paras. 40–42.
1648 Arbitration in Switzerland – The Practitioner’s Guide

amended Art. R55.36 Meanwhile, in a move consistent with the concerns expressed
by these and other commentators, the drafters of the 2015 WADA Code have added a
specific provision in the section governing appeals before the CAS, Art. 13.2.4, entitled
“Cross Appeals and other Subsequent Appeals Allowed”, which reads as follows:
“[c]ross appeals and other subsequent appeals by any respondent named in cases
brought to CAS under the [WADC] are specifically permitted. Any party with a right
to appeal under this Article 13 must file a cross appeal or subsequent appeal at the
latest with the party’s answer” (emphasis added). The WADC’s official comment
to Art. 13.2.4 notes that “[t]his provision is necessary because since 2011, CAS
rules no longer permit an Athlete the right to cross appeal when an Anti-Doping
Organization appeals a decision after the Athlete’s time for appeal has expired. This
provision permits a full hearing for all parties” (emphasis added).37 Since the WADC
2015’s entry into force, Art. 13.2.4 has been incorporated in the rules of anti-doping
organizations around the world.38 At the time of writing, it remained to be seen how
this provision – effectively overriding Art. R55 for doping cases – would be given
effect in the CAS’s practice.

36 Including, in the initial period, in cases where the applicable regulations still provided for
counterclaims and cross-claims at the time when the dispute was brought before the CAS.
Cf., e.g., CAS 2010/A/2101, UCI v. Duval & FFC, Award of 18 February 2011, paras. 75–82;
CAS 2011/A/2325, UCI v. Paulissen & RLVB, Award of 23 December 2011, paras. 123–131; CAS
2011/A/2349, UCI v. Sentjens & RLVB, Award of 29 December 2011, paras. 94–102. Cf. also
CAS 2010/A/2193, Club Cagliari Calcio v. Club Olimpia Deportivo, Award of 15 September
2011, paras. 6.3–6.6. More recently, e.g., CAS 2013/A/3432, Manchester United FC v. Empoli
FC S.p.A., Award of 21 July 2014, paras. 56–57, with further references.
37 As noted by Netzle (p. 10), the addition of Art. 13.2.4 is “especially important in cases where
the WADA exercises its appeal right [before the CAS] according to Article 13.2.3 of the WADA
Code although it was not a party in the [first instance proceedings]”.
38 Pursuant to Art. 23.2.2 WADC 2015, Art. 13.2.4 is among the provisions that WADC signatories
must implement without substantive changes.
 1649

Article R56: Appeal and Answer complete – Conciliation

Unless the parties agree otherwise or the President of the Panel orders otherwise
on the basis of exceptional circumstances, the parties shall not be authorized to
supplement or amend their requests or their argument, to produce new exhibits,
or to specify further evidence on which they intend to rely after the submission of
the appeal brief and of the answer.
The Panel may at any time seek to resolve the dispute by conciliation. Any settle-
ment may be embodied in an arbitral award rendered by consent of the parties.

I PURPOSE OF THE PROVISION

The main purpose of Art. R56(1) is to limit the parties’ written submissions in 1
appeals arbitrations to a single exchange (II.) – namely the appellant’s appeal brief 1
and the respondent’s answer2 – in order to ensure that the resolution of the dispute
is not unduly delayed.3 Conciliation according to Art. R56(2) (III.) plays a limited
role in practice as it is not suited for appeals disputes, in particular in disciplinary
matters, where the sports-governing bodies have a fundamental obligation to treat
all of their members equally.

II THE PRINCIPLE OF A SINGLE EXCHANGE OF SUBMISSIONS

As a matter of principle, and as already discussed in connection with Arts. R51 and 2
R55, in CAS appeals proceedings the parties are not authorized to supplement or
amend their requests or their argument, nor to produce or rely on new exhibits or
other evidence after the submission of the appeal brief and answer. This principle is
enshrined in Art. R56(1) and it is aimed at ensuring the expeditiousness of appeals
proceedings. The CAS Court Office reminds the appellant of Art. R56(1)’s rule in
the letter acknowledging receipt of the statement of appeal, and does the same for
the respondent’s attention in its letter acknowledging receipt of the appeal brief and
fixing a time limit for the filing of the answer.4
However, given the short time limits within which the submissions must be filed in 3
CAS appeals proceedings,5 Art. R56(1)’s restriction puts a heavy burden on counsel,
which is not to be underestimated and may, depending on the circumstances, call
for some adjustment.6 Indeed, despite all the efforts made by diligent counsel, it
is not always possible to comprehensively brief a case in a single submission, in
particular in complex matters which require the gathering of witness statements
and expert evidence. Hence, Art. R56(1) allows for exceptions to the general rule,

1 Cf. Art. R51(1).

2 Cf. Art. R55(1).
3 CAS 2006/A/1088, RBF v. IBF, Award of 29 December 2006, para. 9.20.
4 The parties are again reminded of Art. R56(1)’s rule in the Court Office’s letter acknowledging
receipt of the answer.
5 Cf. Arts. R51(1) and R55(1).
6 Rigozzi/McAuliffe, GAR European and Middle Eastern Arbitration Review 2016, pp. 5–6.
 1650 Arbitration in Switzerland – The Practitioner’s Guide

on two distinct bases: an agreement between the parties (A.) or a decision by the
President of the Panel (B.).7

A The Parties’ Agreement to Deviate from Article R56

4 One of the main characteristics of the CAS appeals procedure is that it contains a
number of restrictions on the parties’ freedom to fashion the arbitration proceedings
according to their preferences.8 From this point of view, Art. R56(1) constitutes an
exception to the overall approach, as it expressly reserves the possibility that the
parties may agree to depart from the general rule provided in the Code. If the parties
find an agreement, the panel is bound by that agreement.9
5 However, it is rather uncommon for the parties to reach a procedural agreement once
the arbitration has started, as counsel will inevitably tend to think that the adverse
party may gain an advantage from being allowed to expand on its case. This might
explain why more often than not parties are tempted to file unsolicited additional
evidence or submissions after the applicable time limit, without asking the other
party first. The panel will then in any event (retroactively) ask for the other party’s
agreement, indicating that the panel(’s president) will decide on the admissibility
of the filing if there is no agreement.

B The President’s Authority to Grant an Exception

6 Failing an agreement by the parties, the President of the Panel can decide to depart
from the principle that the parties’ written submissions pursuant to Arts. R51 and
R55 must be exhaustive only “on the basis of exceptional circumstances”. Although
the President enjoys wide discretion10 in determining what may amount to “excep-
tional circumstances” (1.), it is submitted that the need to safeguard the parties’
fundamental procedural rights must always constitute an “exceptional circumstance”
(2.) within the meaning of Art. R56(1).

1 The CAS Practice

7 It seems fair to say that the practice resulting from the CAS panels’ presidents’ deci-
sions on whether to allow the parties to supplement their case after the time limit for

7 As the scope of these exceptions is very limited, it is suggested that counsel who have legitimate
reasons to believe that it will not be possible to gather all the required evidence and to properly
prepare their case within the time limits set by the Code must ask for an extension (cf. Arts. R51
and R55). If the CAS rejects the request for an extension, it is submitted that it will be easier
to establish the existence “exceptional circumstances” within the meaning of Art. R56(1).
8 This is so, in particular, with respect to the number of arbitrators constituting the panel (cf. Art.
R50(1)), the selection of the arbitrators (cf. Arts. R48(1) and R55(1)), and the appointment of
the President of the Panel (Art. R54(2)); cf., e.g., Kaufmann-Kohler/Rigozzi, paras. 4.09, 4.17
and 4.23.
9 Cf. Knoll, above commentary on Art. 182 PILS (Chapter 2, Part II), paras. 4–8; see also, e.g.,
CAS 2013/A/3365+3366, Juventus FC v. Chelsea FC & AS Livorno Calcio SpA v. Chelsea FC,
Award of 21 January 2015, para. 81; and Mavromati/Reeb, Art. R56, para. 6.
10 CAS 2007/A/1290, Diethart v. IOC, Award of 4 January 2008, paras. 17–18; see also Mavromati/
Reeb, Art. R56, para. 7, noting that Art. R56 does not define the ‘exceptional circumstances’
it refers to.
Article R56 CAS Code – Rigozzi/Hasler 1651

the filing of their written submissions is not very consistent.11 Since such decisions
are often unreasoned,12 in particular when they are made on the spot during the
hearing, it is difficult to provide a meaningful and comprehensive analysis of this
practice. The following are some examples taken from cases in which explanations
as to the President’s decision were provided in the award.13
As a threshold matter, it should be noted that the existence of “exceptional circum- 8
stances” is to be demonstrated 14 with sufficient certainty15 by the party seeking to
supplement its case.
In principle, new evidence should be admitted based on the “exceptional circum- 9
stances” test only if it has become available after the time limit for filing the appeal
brief or the answer.16 If the evidence in question existed already before that time
limit but was discovered thereafter, this would constitute an exceptional circumstance
only if the said evidence could not reasonably be discovered and produced in time
for the filing.17 Accordingly, a panel denied the appellant’s request for leave to file
new evidence only a few days before the time limit for the respondent to submit its
answer and just ahead of the hearing, taking into account the fact that the evidence
had been in the appellant’s possession for more than a month, that he had already
been granted an extension of the time limit for filing his appeal brief, and that he had
failed to give any advance explanation or notice of the filing of that evidence.18 That
said, ‘late’ evidence filed by the respondent athlete was allowed by another panel
on the basis that the evidence had been part of prior proceedings and the appellant
federation ought to have reviewed it in preparing its appeal.19 In yet another case,
the panel decided to admit documents that had been filed after the time limit for
the appeal brief, considering that they merely confirmed statements already made
in that brief and “therefore did not harm the respondent”.20 Finally, it bears to note

11 See, e.g., CAS 2009/A/1835, CONI v. Priamo, Award of 11 November 2009, para. 41, allowing the
late production of a document on the ground that the other party was aware of the existence of
such document, without indicating why this should be considered an exceptional circumstance.
12 CAS 2006/A/1180, Galatasaray SK v. Ribéry & Olympique Marseille, Award of 24 April 2007,
para. 3.12; CAS 2007/A/1370 & 1376, FIFA, WADA v. CBF, STJD & Dodo, Award of 11 September
2008; CAS 2009/A/1940, BAP v. FIBA & SBP, Award of 7 April 2010, para. 15.7.
13 In practice, the President will consult with his or her co-arbitrators, and the decision is often
presented as a decision of the panel. Cf., e.g., CAS 2007/A/1290, Diethart v. IOC, Award of 4
January 2008, paras. 17–18; CAS 2013/A/3264, Abderrahim Achchakir v. FIFA, Award of 19
November 2013, para. 84.
14 Cf., e.g., CAS 2009/A/1920, FK Pobeda, Zabrcanec & Zdraveski v. UEFA, Award of 15 April
2010, para. 50.
15 Cf., e.g., CAS 2013/A/3264, Abderrahim Achchakir v. FIFA, Award of 19 November 2013, paras.
82–83.
16 CAS 2010/A/2172, Oriekhov v. UEFA, Award 18 January 2011, para. 47, regarding testimonies
given in a context external to the proceedings before the CAS. See also CAS 2014/A/3488,
WADA v. Juha Lallukka, award of 20 November 2014, paras. 66–72, noting further that the
other party had not objected to the belated filing.
17 CAS 2001/A/318, Virenque v. Swiss Cycling, Award of 23 April 2001, para. 32. See also, e.g.,
CAS 2013/A/3148, PAASF v. FIAS & Vasily Shestakov, Award of 5 September 2014, paras. 79–83.
18 CAS 2013/A/3264, Abderrahim Achchakir v. FIFA, Award of 19 November 2013, para. 82.
19 CAS 2012/A/2779, IAAF v. CBAT & Simone Alves Da Silva, Award of 31 January 2013, para. 55.
20 CAS 2011/A/2681 KSV, Cercle Brugge v. FC Radnicki, Award of 19 September 2012, para. 80; see
also Mavromati/Reeb, Art. R56, para. 10, noting further that statements in the parties’ briefs
purporting to reserve their right to produce further documents at a later stage in the proceedings
are inoperative under Art. R56’s rule (as confirmed in CAS 2011/A/2681, para. 80). Conversely,
in CAS 2014/A/3604, Ralfs Freibergs v. IOC, Award of 17 December 2014, paras. 71–72, the
 1652 Arbitration in Switzerland – The Practitioner’s Guide

that unless the panel has issued specific procedural directions in this respect, legal
authorities do not constitute new evidence within the meaning of Art. R56 and can
thus, in principle, be produced until the day of the hearing.21
10 Additional submissions are generally allowed only when the respondent’s answer
contains defenses that need to be rebutted in writing.22 For instance, if the answer
contains a jurisdictional23 or procedural24 challenge,25 a request by the appellant
to respond to the challenge by a separate written submission should normally be
granted. The panel should clearly define the scope of the additional submission,
which will then allow it to disregard any portions of that submission that exceed
the prescribed perimeter.26 Moreover, the panel has discretion to allow the filing of
a second round of submissions when the circumstances so require.27
11 Amendments to the prayers for relief should be accepted only when they are limited
to clarifications of the original requests. For instance, if the appellant initially sought
the setting aside of the decision under appeal, he or she should be allowed to later
request that the decision be only partially set aside or replaced with a new, different
decision, or to add a declaratory claim that was already implicit in the reasoning
supporting the request to have the decision set aside.
12 The practice is generally less restrictive with regard to new legal arguments.28 After
all, arbitration under Swiss law is governed by the jura novit curia principle.29 New
arguments should be excluded only when it is obvious that they could have been

panel decided not to allow evidence that the appellant had obtained from a laboratory almost
a month before the hearing, but omitted to share with the panel and its adverse party until
then, considering that it would be “clearly unfair to admit such evidence at this late stage” (but
also that in any event – envisaging it de bene esse – the evidence in question was irrelevant).
21 CAS 2006/A/1192, Chelsea Football Club Limited v. Mutu, Award of 21 May 2007, paras. 50–51;
more formalistic, CAS 2009/A/1926 & 1930, WADA v. ITF & Gasquet, Award of 17 December
2009, para. 3.26. With regard to the submission of publicly available documents after the
exchange of written submissions, see also CAS 2013/A/3222, FC Interstar Sibiu v. RFF & AFC
Astra, Award of 24 January 2014, paras. 59–60.
22 CAS 2016/A/4371 Robert Lea v. USADA, Award of 4 May 2016, para. 45.
23 TAS 98/199, Real Madrid v. UEFA, Award of 9 October 1998, para. 19. See also Mavromati/
Reeb, Art. R56, para. 3.
24 CAS 2004/A/748, ROC, Ekimov v. IOC, USOC, Hamilton, Award of 27 June 2006, para. 48.
25 Cf. Art. R55(1). Art. R55(4) expressly provides that if the answer raises a jurisdictional challenge,
the CAS Court Office or the panel (if already constituted) must invite reply submissions by the
other party.
26 CAS 2009/A/1912&1913, Pechstein v. ISU; Deutsche Eisschnellauf Gemeinschaft e.V. v. ISU,
Award of 25 November 2009, para. 30. More recently, cf., e.g., CAS 2015/A/3899, F. v. Athletics
Kenya (AK), Award of 3 July 2015, paras. 26, 29–31.
27 Cf. e.g., Omer Riza v. Trabzonspor Kulübü Dernegi & TFF, Award on jurisdiction of 10 June 2010,
para. 26; CAS 2013/A/3365, Juventus FC v. Chelsea FC, CAS 2013/A/336, AS Livorno Calcio SpA
v. Chelsea FC, Award of 21 January 2015, paras. 66–78 (passim). See also Mavromati/Reeb, Art.
R56, para. 4, noting that this could be the case, for instance, where the need to understand the
legal context in another country dictates that further submissions be made by the parties, with
reference to CAS 2011/A/2586, William Lanes de Lima v. FIFA & Real Betis Balompié, Award of
3 October 2012, para. 19. For a case where the panel found that there were no circumstances
requiring a second round of submissions, cf. CAS 2014/A/3587, KRC Genk v. Monaco FC, Award
of 18 December 2014, CAS Bulletin 2015/1, p.71.
28 CAS 2015/A/4059, WADA v. Bellchambers et al., AFL and ASADA, Award of 11 January 2016,
para. 111.
29 CAS 2005/A/983 & 984, Club Atlético Peñarol v. PSG, Award of 12 July 2006, para. 58. On the
role played by the principle jura novit curia in Swiss international arbitration, cf. Arroyo, Jura
Article R56 CAS Code – Rigozzi/Hasler 1653

made at a previous stage and that, under the circumstances, the delay puts the
other party at a procedural disadvantage.30 Procedural good faith commands that
ambushing by new arguments or constantly “evolving” ones should be proscribed,
especially when coming from the governing body charging an athlete in disciplinary
cases.
More surprisingly, the CAS has admitted a late answer (filed after Art. R55’s time 13
limit). In this case, the CAS Court Office allowed the respondent’s answer on the
basis that “(i) Article R55 of the CAS Code grants the Sole Arbitrator discretion to
continue the proceedings even if an Answer has been filed out of time; (ii) Since
the Second Respondent had requested a hearing, she was likely to raise the same
arguments as those contained in her Answer, and the Appellant’s position would
not be prejudiced; and (iii) The issue at stake related to a doping matter, which had
the potential of placing the Athlete’s life and career at stake”.31 In other instances,
panel presidents have been more formalistic and refused an answer despite the fact
that similar considerations would have applied.32

2 The Need to Safeguard the Parties’ Fundamental Procedural Rights

Experience shows that each panel President has his or her own view of how rigor- 14
ously Art. R56’s requirement of “exceptional circumstances” should be applied. It
is submitted that the guiding principle should always be the strict observance of
the parties’ fundamental procedural rights. Accordingly, upon a proper application,
rebuttal evidence should not be easily disallowed,33 in particular when the application
shows that the need to file rebuttal evidence became apparent only after receipt of
the other party’s submissions (i.e. that it is genuine rebuttal evidence and not new
additional evidence disguised as rebuttal evidence).
Similarly, the existence of exceptional circumstances should be accepted when it 15
appears that the CAS did not grant a request for an extension that would have afforded
the requesting party with the time necessary to properly prepare and present its case
with its written submission.

Novit Arbiter, pp. 44–54 (with a comprehensive overview and critical analysis of the Supreme
Court’s case law).
30 CAS 2001/A/354, Irish Hockey Association (IHA) v. Lithuanian Hockey Federation (LHF) and
International Hockey Federation (FIH) & CAS 2001/A/355, Lithuanian Hockey Federation
(LHF) v. International Hockey Federation (FIH), Award of 15 April 2002, para. 10, speaking of
“estoppel”.
31 CAS 2012/A/2779, IAAF v. CBAT & Simone Alves Da Silva, Award of 31 January 2013, para. 55
letter e.
32 E.g., CAS 2015/A/4352&4353, V. v. L. & Z v. L., Award of 7 October 2016, paras. 48–62 and
111–122. Note that the Respondent agreed to the extension of the time limit for the Appellant to
file the appeal brief reserving the right to seek a similar extension, and that the Appellant then
refused to agree to the Respondent’s request for an extension on the ground that it was made
after the original time limit had elapsed. While it is true that the Respondent could still make
its submissions at the hearing, the Panel’s approach unnecessarily rewarded the Appellant’s
procedural conduct despite the fact that such conduct is difficult to square with the obligation
to arbitrate in good faith, in particular knowing that the Respondent was not represented by
counsel at the relevant time.
33 CAS 2004/A/717, International Paralympic Committee v. WADA & Brockman, Award of 8 June
2005, paras. 37–38 (however without further elaboration on the grounds on which the Panel
had based its decision to admit the relevant evidence).
 1654 Arbitration in Switzerland – The Practitioner’s Guide

16 For its part, the Swiss Supreme Court has confirmed that a decision dismissing a
request to file additional evidence does not infringe the parties’ right to adduce
evidence, which forms part of the right to be heard, if the evidence is tendered out
of time (and its consequent inadmissibility is provided for in the applicable rules),34
and that the parties’ right to equal treatment is not violated by a decision accepting
one party’s submission of evidence after the relevant time limit on the basis of duly
argued exceptional circumstances, and refusing a similar request by the other party
where no such circumstances were invoked, let alone established.35

III CONCILIATION AND SETTLEMENT

17 Article R56(2) provides that “the Panel may at any time seek to resolve the dispute
by conciliation. Any settlement may be embodied in an arbitral award rendered
by consent of the parties”. This provision plays a limited role in practice, as
sports-governing bodies are not inclined to “settle” disciplinary cases.36 In those
rare disciplinary cases that are settled, the sports-governing body involved will not
generally be keen to have the settlement made public, as this could trigger similar
requests from other athletes.37 That being said, many consent awards in doping cases
embody an acceptance by the athletes of the sanction imposed on them, rather than
a fully negotiated solution of the dispute.38 In those cases, the settlement is mainly
aimed at reducing the duration and costs of proceedings.39
18 The requirement to treat the members equally does not apply in cases where the
previous instance acted as a neutral body in a dispute between two members. For
instance it has become frequent that in the appeals brought against the decision
of the FIFA DRC or PSC in transfer-related matters the panel starts the hearing by
telling the parties that the arbitrators have identified a significant litigation risk on
both sides and inviting them to take advantage of a short break to see whether they
can reach a settlement.
19 Before acting as conciliators under Art. R56(2) the arbitrators should make sure that
the parties understand the reasons for and the scope of their intervention, and that
in case the conciliation attempt should fail, the parties agree to waive any right to
challenge the arbitrators (or the award) on the ground that the arbitrators acted as
settlement facilitators during the arbitration.40
20 Where the parties ask the panel to “ratify and incorporate” their settlement agreement
in a consent award, according to the CAS case law, the panel must “verify the bona
fide nature of [the agreement] to ensure that [it does not conceal an attempt to

34 BGer. 4A_274/2013 para. 3.2; BGer. 4A_576/2012 para. 4.2.

35 BGer. 4A_274/2013 para. 3.2.
36 Cf. Mavromati/Reeb, Art. R56, para. 17. That said, overall, the CAS has registered more consent
awards in appeals proceedings than in ordinary proceedings (see Mavromati/Reeb, Art. R56,
para.14 (with footnote 24 quoting the figures of 8 ordinary cases and 29 appeals cases where
consent awards were issued). One could surmise that this is simply a reflection of the fact that
the total number of appeals cases is much greater than that of ordinary cases.
37 For one recent example where a consent award related to an anti-doping rule violation was
published, see CAS 2014/A/3498, IAAF v. TAF & Ms Asli Cakir-Alptekin, Consent award of 17
August 2015.
38 Mavromati/Reeb, Art. R56, footnotes 31 and 35.
39 Mavromati/Reeb, Art. R56, para. 20.
40 Cf. Kaufmann-Kohler/Rigozzi, para. 1.29.
Article R56 CAS Code – Rigozzi/Hasler 1655

commit a fraud] and […] confirm that the terms of [the agreement] are not contrary
to public policy principles or mandatory rules of the law applicable to the dispute”.41

41 Cf., e.g., CAS 2014/A/3498, IAAF v. TAF & Ms Asli Cakir-Alptekin, Consent award of 17 August
2015, para. 35; Mavromati/Reeb, Art. R56, para. 19. For a discussion of the requirements of
the Swiss lex arbitri in this respect, cf., e.g., Kaufmann-Kohler/Rigozzi, para. 7.109; see also
Girsberger/Voser, para. 1451.
 1656

Article R57: Scope of Panel’s Review – Hearing

The Panel has full power to review the facts and the law. It may issue a new decision
which replaces the decision challenged or annul the decision and refer the case back
to the previous instance. The President of the Panel may request communication of
the file of the federation, association or sports-related body, whose decision is the
subject of the appeal. Upon transfer of the CAS file to the Panel, the President of
the Panel shall issue directions in connection with the hearing for the examination
of the parties, the witnesses and the experts, as well as for the oral arguments.
After consulting the parties, the Panel may, if it deems itself to be sufficiently well
informed, decide not to hold a hearing. At the hearing, the proceedings take place
in camera, unless the parties agree otherwise.
The Panel has discretion to exclude evidence presented by the parties if it was
available to them or could reasonably have been discovered by them before the
challenged decision was rendered. Articles R44.2 and R44.3 shall also apply.
If any of the parties, or any of its witnesses, having been duly summoned, fails to
appear, the Panel may nevertheless proceed with the hearing and render an award.

I PURPOSE OF THE PROVISION

1 Article R57 establishes a central principle of the CAS appeals system, namely
the power of CAS panels to hear the cases submitted to them de novo (II.). It also
regulates the main questions relating to the oral hearing (III.). The broad powers
made available to the CAS under this provision are motivated by a desire to achieve
procedural economy, while ensuring that the parties can receive a timely, fair, and
final decision – in other words, that the CAS appeals procedure constitutes a proper
and effective legal remedy.1

II THE SCOPE OF THE PANEL’S REVIEW

2 Appeals before the CAS are de novo proceedings, meaning that the panels hearing
them may make new decisions in the matters under appeal, if necessary disregarding
and/or replacing all or part of the findings and conclusions of the previous instances.
Art. R57(1) determines not only “the scope of [the] Panel’s review”, as stated in its
heading (A.), but also the decision-making power of the Panel when seized with
an appeal under the CAS Code (B.).

A The Panel’s Power of Review (Pouvoir de cognition)

3 CAS appeals proceedings provide for the de novo hearing of disputes (1). To
understand the exact scope of this de novo principle in practice (3.), as well as its
limitations (4.), it is important to consider its intended procedural implications (2.).

1 BGer. 4A_386/2010 para. 5.3.2, Rev.Arb. 2011, p. 826, with comments by Besson; see also CAS
2012/A/2895, E. v. FIA, Award of 15 April 2013, para. 45, and the reference to the principle of
procedural economy.
Article R57 CAS Code – Rigozzi/Hasler 1657

1 De Novo Hearing of the Case (Art. R57(1))

According to Art. R57(1), first sentence, the “[p]anel has full power to review the facts 4
and the law”. The CAS has repeatedly held that the panels’ scope of review under
this provision is “basically unrestricted”,2 meaning that the CAS will in substance
“re-hear” the matter afresh, as if the case had not been previously heard or decided.3
Accordingly, the CAS is not bound by the factual or legal findings of, or the evidence
presented before, the previous instance.4 As a corollary, this also means that the
parties can adduce new facts and produce new evidence before the CAS.5

2 Procedural Implications

An important implication of the de novo power of review, which is well-entrenched 5

in CAS jurisprudence, is that any violations of the parties’ procedural rights at first
instance can be “cured” by a full appeal to the CAS.6 The CAS has described this
“curing effect” in the following terms:7

“The virtue of an appeal system which allows for a rehearing before an

appealed body is that issues relating to the fairness of the hearing before the
Tribunal of First Instance ‘fade to the periphery’ (CAS 98/211, published in
Digest of CAS Awards II, pp. 255 at 264, citing Swiss doctrine and case law).
Furthermore, the case law of the Swiss Supreme Court clearly establishes that
any infringement of the right to be heard can be cured when the procedurally
flawed decision is followed by a new decision, rendered by an appeal body
which had the same power to review the facts and the law as the tribunal of
first instance and in front of which the right to be heard had been properly

2 CAS 2003/A/507, Strahija v. FINA, Award of 9 February 2004, para. 7.3.1; CAS 2004/A/607, B. v.
IWF, Award of 6 December 2004, para. 43; CAS 2004/A/633, IAAF v. FFA & Chouki, Award of 2
March 2005, para. 6.9; CAS 2008/A/1700 & CAS 2008/A/1710, Deutsche Reiterliche Vereinigung
e.V. v. FEI & Ahlmann; Ahlmann v. FEI, Award of 30 April 2009, para. 66. More recently, cf.,
e.g., CAS 2015/A/4057, Maritimo da Madeira Futebol SAD v. Al-Ahli Sports Club, Award of 30
November 2015, para. 63.
3 CAS 2008/A/1718 to CAS 2008/A/1724, IAAF v. All Russia Athletic Federation & Yegorova et
al., Award of 18 November 2009, para. 166.
4 Cf., e.g., CAS 96/156, Foschi v. FINA, Award of 6 October 1997, unreported, para. 10.3; CAS
2002/A/383, IAAF v. Dos Santos, Award of 27 January 2003, para. 71.
5 CAS 2004/A/651, French v. Australian Sports Commission and Cycling Australia, Interlocutory
Award of 30 March 2005, paras. 17–20. See also CAS 2004/A/714, Fazekas v. IOC, Award of 31
March 2005, para. 57; CAS 2004/A/607, B. v. IWF, Award of 6 December 2004, para. 3.
6 The “curing effect” of a full appeal is a long-standing principle that has consistently been
affirmed in the CAS case law. See, among many others, CAS 94/129, USA Shooting & Quigley
v. International Shooting Union (UIT), Award of 23 May 1995, para. 59; CAS 98/208, N., J., Y.,
W., v. FINA, Award of 22 December 1998, para. 10; CAS 98/211, B. v. FINA, Award of 7 June
1999, para. 8. For a more recent case, see, e.g., CAS 2009/A/1920, FK Pobeda, Zabrcanec &
Zdraveski v. UEFA, Award of 15 April 2010, para. 87.
7 CAS 2006/A/1177, Villa FC v. B.93 Copenhagen, Award of 28 May 2007, para. 19. This principle
is also in line with the decisions of the European Court of Human Rights, which has held that
an adjudicatory body’s violation of Art. 6(1) ECHR will effectively be cured if its decisions are
subject to “subsequent control by a judicial body that has full jurisdiction and does provide the
guarantees of Art. 6(1)” (Wickramsinghe v. The United Kingdom, Application No. 31503/96,
The European Commission of Human Rights (First Chamber), 9 December 1997, para. 41, cited
in CAS 2009/A/1920, FK Pobeda, Zabrcanec, Zdraveski v. UEFA, Award of 15 April 2010, para.
87).
 1658 Arbitration in Switzerland – The Practitioner’s Guide

exercised (see [BGE] 124 II 132, especially p. 138; [BGE] 118 Ib 111, especially
p. 120 and [BGE] 116 I a 94, especially p. 95).”
6 Since the availability of a full-fledged appeal to the CAS has the effect of remedying
prior procedural flaws, CAS panels will not need to entertain arguments alleging
violations of due process by the first instance hearing bodies.8 For example, CAS
practice shows that the following procedural deficiencies were (or could be) cured
through the conduct of appeals proceedings: a violation of the right to be heard
in all of its forms, in particular the fact for a party of not having been afforded an
opportunity to be heard at first instance;9 the lack of, or insufficient reasoning in, the
impugned decision; defects in the administration of evidence;10 other deficiencies/
omissions in the evidentiary proceedings as conducted by the first instance hearing
body,11 and more generally any breach of “natural justice”.12
7 Certain CAS panels have accepted the “curing” principle with some reluctance.13
In this respect, there is, indeed, a concern that a disciplinary body’s violation of
fundamental procedural rights may go unpunished if the CAS simply issues a new
decision.14 The CAS has addressed this problem, to a certain extent, by drafting its
decisions in such a way as to ‘educate’15 or warn16 sports-governing bodies about
respecting the principles of due process. That said, it is submitted that concerns
related to the enforcement of the obligations of sports federations and/or their
disciplinary bodies must cede to the overarching goal of Art. R57, which aims to
ensure procedural economy and efficiency.17 If the CAS did not have full powers
of review, it would be forced to refer decisions back to the previous instance
each time an athlete could show that his or her procedural rights have not been
duly observed – unfortunately not such a rare occurrence in sports matters. The
resolution of sports disputes would be significantly delayed,18 creating uncertainty
for the parties, especially athletes, and increasing the costs of the proceedings.19
Such an outcome would seriously compromise the CAS’s efforts to create a dispute

8 CAS 94/129, USA Shooting & Quigley v. International Shooting Union (UIT), Award of 23 May
1995, para. 59; CAS 98/208, N., J., Y. & W., v. FINA, Award of 22 December 1998, para. 11.
9 CAS 2004/A/549, Deffer & RFEG v. FIG, Award of 27 May 2004, paras. 30–31.
10 CAS 2002/A/340, S. v. FIG, Award of 19 March 2002, para. 17.
11 CAS 2003/A/524, Duda v. RLVB, Award of 1 April 2004, para. 24.
12 CAS 2003/O/486, Fulham FC v. Olympique Lyonnais, Award of 19 December 2003, paras. 28
and 50–51.
13 CAS 2000/A/290, Xavier & Everton FC v. UEFA, Award of 2 February 2001, para. 8.
14 Rigozzi, para. 1086. Along the same lines, the Panel in Quigley noted that “[i]t would obviously
be wise to ensure that accused competitors are given a satisfactory opportunity to be heard
from the start, so that they do not feel impelled to appeal out of frustration, but that is another
matter” (cf. above, footnote 8).
15 CAS OG 96/005, Andrade [II], W. & L. v. NOC Cap Verde, Award of 1 August 1996, para. 8.
16 See, e.g., CAS 2000/A/290, Xavier & Everton FC v. UEFA, Award of 2 February 2001, para. 8.
17 Rigozzi, para. 1086.
18 The serious delays that may arise from repeated challenges were exemplified by the FC Sion
v. Swiss Football League debacle (see Rigozzi, paras. 1076–1078). In that case, the decision
by the football association to exclude the club from a competition was set aside three times
by three different tribunals, but the dispute could still not be definitively settled. Absent an
express provision to this effect in the governing rules, the last tribunal was left to try and find
a basis to enable it to revise the association’s decision (as opposed to simply setting it aside as
provided in the rules). Art. R57 of the Code is intended to prevent this type of situations from
occurring.
19 CAS 98/214, B. v. FIJ, Award of 17 March 1999, para. 10.
Article R57 CAS Code – Rigozzi/Hasler 1659

resolution system that is responsive to the time pressures and specific requirements
of competitive sports.

3 The De Novo Principle in Practice

a New Facts

As seen above, a corollary of the CAS’s full power of review under Art. R57, which 8
implies a full re-hearing of the case, is that the panel is free to consider new facts.
In cases where the decision under appeal is already a genuine arbitral award, like 9
for instance in contractual disputes adjudicated by the Basketball Arbitral Tribunal
(BAT),20 one could wonder whether an unlimited possibility to adduce new facts
in CAS appeals proceedings is reasonable as a matter of procedural economy. It is
submitted that if the applicable regulations provide for an arbitral tribunal at first
instance, they could validly limit the parties’ right to adduce new facts on appeal
before the CAS.21
This however would not apply in doping matters, in particular in cases where the 10
appeal before CAS has been brought by WADA or the relevant international feder-
ation, which were not a party in the first instance arbitration. Indeed, one of the
reasons for such appeals is to allow the correction of mistakes in the prosecution,
for instance when factual excuses by the athlete appear to have been accepted too
readily by the first instance tribunal.

b New Evidence (Art. R57(3))

The de novo principle also means that the parties can produce new evidence with 11
respect to both (i.) factual allegations made in the previous instance (which the
decision under appeal might have found to have been established or not) and (ii.) new
factual allegations. The 2013 edition of the Code included a significant amendment
in this respect, namely the addition of a new paragraph 3 to Art. R57, providing
that “[t]he panel has discretion to exclude evidence presented by the parties if it
was available to them or could reasonably have been discovered by them before
the challenged decision was rendered”.
To these authors’ knowledge, there is no publicly available document explaining the 12
rationale for this change in the Code. It is our understanding that the provision was
meant to deter parties to proceedings in the FIFA DRC or Player Status Committee

20 The BAT is a real arbitral tribunal, as implicitly confirmed by the fact that the Swiss Supreme
Court has accepted to be seized of setting aside actions pursuant to Art. 190 PILS against BAT
awards. Until the relevant provision was eliminated in the BAT Rules in 2010, BAT awards were
by default subject to appeal before the CAS. The parties can still provide for appeals to the CAS
in their contracts, however they do not often do so. For an example of a case where the CAS
heard an appeal against a BAT award, see CAS 2011/A/2350, Giorgi Shermadini v. Life Sports
Management Inc., Award of 23 August 2011.
21 One could even argue that it would not be totally unreasonable to provide that the CAS will
have to decide based on the factual findings of the first arbitral tribunal and that its panels
could review the factual findings of the first tribunal only to the extent that such findings were
made in violation of the right to be heard (on this standard, which is the one applicable in the
Swiss Supreme Court, see Kaufmann-Kohler/Rigozzi).
 1660 Arbitration in Switzerland – The Practitioner’s Guide

from simply assuming that, given the stakes, the case would in any event end up
in CAS and waiting until then before putting forward their case in a comprehensive
(and professional) fashion, thus making a mockery out of the FIFA proceedings.22 In
the vast majority of the cases where the appeal against a decision of the FIFA DRC or
PSC was upheld, it was because the factual background of the dispute put forward
in the CAS proceedings was radically different from the one that was before the
prior FIFA instance.23 However, the CAS official commentary suggests24 and has been
understood to submit25 that the limitation of the right of to produce new evidence
applies only when the first instance hearing body is a true (independent) tribunal.26
13 The Swiss Supreme Court has held that Art. R57(3) is not problematic as a matter
of principle also in cases where the decision under appeal emanated from the FIFA
DRC,27 irrespective of the fact that the DRC is not an arbitral tribunal. It is indeed
submitted that Art. R57(3) should apply not only in cases where the lower instance
is an arbitral tribunal, but also where it is not.28 The difference between the two
situations should rather be reflected in the way in which the CAS panel exercises
its discretion to exclude new evidence on the basis of Art. R57(3).
14 When the decision under appeal is an arbitral award, rendered after full-fledged
proceedings by a proper arbitral tribunal hearing the case in the first instance, the
CAS panel hearing the case on appeal should not hesitate to exclude new evidence
that was available or could reasonably have been discovered and produced before
the first instance tribunal. When the decision under appeal is not an arbitral award,
Art. R57(3) is still applicable, but the CAS panel should use its discretion to apply this
provision with restraint, so as not to impinge upon the fundamental principle of de
novo review (and in line with the reasons why it was provided for in the first place).
Indeed, as further illustrated by the discussion below, it should be underscored that
the CAS’s power to conduct a fully de novo review of the case and the associated
“curing” effect of such review provide important grounds for validly excluding the
jurisdiction of the state courts over sports disputes.29 The sole arbitrator in Zamalek
followed this line of reasoning and refused to exercise his discretion to exclude

22 See also Levy (2016), at p. 181 who finds it “understandable that prospective appellants may
not want to make huge efforts for a proceedings before an internal judicial body of a sport
organisation which they do not expect to take an independent decision in the matter, or where
they anticipate that making such efforts will not make a difference to the outcome”, and indicates
that such appellants will thus often act according to the principle “let’s save our resources for
the CAS proceedings”.
23 Irrespective of the fact that FIFA might end up paying the costs while the decision under appeal
was not necessarily wrong it is submitted that this situation is far from an ideal allocation of
resources.
24 Mavromati/Reeb, Art. R57, para. 53, according to whom “the full power of review, a well-
established principle in appeals before the CAS, should be preserved to the extent that the
previous instance is not an independent arbitral tribunal but the internal body of a sports
federation”.
25 Levy (2016), p. 180.
26 In our view, in these cases one could even consider refusing not only new evidence but also
new factual allegations.
27 BGer. 4A_246/2014 para. 6.4.3.2 in fine.
28 See also Levy (2016), p. 180.
29 As already mentioned, CAS appeals are not appeals stricto sensu. This is the main reason why
Art. 317(1) CCP, according to which new facts and evidence are admissible on appeal only if
they are “a) invoked without delay; and b) [if] it was not possible, despite reasonable diligence,
to invoke them in the proceedings before the court of first instance”, should not apply in this
Article R57 CAS Code – Rigozzi/Hasler 1661

evidence that was not tendered before the FIFA DRC, on the ground that the latter
is not an independent body and that, irrespective of whether the non-production
could have been justified by the social and political unrest in the relevant country
at the time, it was not “substantiate[d] let alone prove[n] that [in failing to produce
the said evidence] Zamalek acted abusively”.30 As noted in another recent award,
“the discretion to exclude evidence should be exercised with caution”.31 These
awards confirm that (i) the party requesting the exclusion of evidence that was not
presented in the first instance (non-arbitral) proceedings will have to establish (not
only that the new evidence was already available or could reasonably have been
discovered at the first instance level, but also (ii) why admitting the evidence would
constitute an abuse of process.
It is also submitted that the panel’s discretion under Art. R57(3) should be exercised 15
only to decide on a request for exclusion of evidence, and not to exclude evidence
on an ex officio basis (even after having consulted the parties).32 Where a request is
made for the panel to exclude evidence on the basis of Art. R57(3), the panel should
give an opportunity to comment to the other party/ies, and require explanations
for the belated submission of the disputed evidence. If no plausible explanation
is put forward, the Swiss Supreme Court has held that the exclusion of evidence
based on Art. R57(3) does not constitute a violation of the right to be heard, nor
of procedural policy.33
The above distinction does not apply in anti-doping cases, given that the WADA 16
Code explicitly rules out any limitation whatsoever of the de novo principle. In other
words it is submitted that in doping cases CAS arbitrators will have no discretion
as far as new evidence is concerned. Indeed, the official comment to Art. 13.1.2
WADC expressly states that “[p]rior proceedings do not limit the evidence or carry
weight in the hearing before CAS”.34 Art. 13.1.2 WADC constitutes a lex specialis with
respect to general procedural rule set out in Art. R57(3) of the CAS Code.35 While it
is likely that this express provision was added in order to make clear that, as already
mentioned, WADA and/or the relevant international federation must be allowed to
bring new evidence if they did not participate in the first instance proceedings, the
same must hold true for the other parties, in particular the athlete who will have
the burden to rebut not only the evidence brought by the anti-doping organization
in first instance but also the possibly new evidence brought by WADA and/or the
international federation. In other words, it is submitted that the broad wording of
Art. 13.1.2 WADC should also benefit the athlete and exclude the application of Art.
R57(3) of the CAS Code when the appellant party is the athlete.

context. See also BGer. 4A_246/2014 para. 6.4.3.2 ab initio. For other reasons not to refer to
Article 317(1) CCP, see also Mavromati (CAS Bull. 2014/1), pp. 54–55; Lévy (2016), p. 181.
30 CAS 2014/A/3518, Zamalek Sporting Club v. Accra Hearts of Oak Sporting Club, Award of 31
October 2014, para. 49.
31 CAS 2014/A/3486, MFK Dubnica v. FC Parma, Award of 2 February 2015, CAS Bull. 2015/1, pp.
67–68 (commented in Levy (2016)). See also CAS 2015/A/3923, Fábio Rochemback v. Dalian
Aerbin FC, Award of 30 October 2015, paras. 60–68.
32 Question left open by Mavromati (CAS Bull. 2014/1), p. 51, and not addressed in Mavromati/
Reeb, Art. R57.
33 BGer. 4A_246/2014 para. 6.4.3.1, where the applicant invoked, among other grounds, a violation
of Art. 6 ECHR.
34 Art. 13.1.2 2015 WADC, under the heading “CAS Shall Not Defer to the Findings Being Appealed”.
35 See also Mavromati (CAS Bull. 2014/1), p. 53.
 1662 Arbitration in Switzerland – The Practitioner’s Guide

c New Legal Arguments

17 Again as noted above, the de novo principle under Art. R57 means that CAS panels
have an unrestricted power to review the law, given that they are to re-hear and
decide the case afresh.
18 Furthermore, the CAS is free to decide irrespective of the legal arguments put forward
by the parties. From this point of view, Art. R57 confirms that the principle jura
novit curia is fully applicable under Swiss arbitration law.36 It also means that “a
decision, [even if] wrong in its reasoning, needs not be annulled, if its outcome is
correct”37 based on what the CAS considers to be the proper reasoning.

d New Prayers for Relief

19 The panel’s full power of review of the case under Art. R57 implies that the parties
can amend their prayers for relief on appeal before the CAS. That said, as a general
rule, the CAS considers that its power of review is limited by the object of the dispute
that was before the previous instance.38 For example, if the first instance proceedings
were limited to a specific disciplinary offence, the CAS will not accept to hear claims
based on a separate offence that was not “dealt with in the Appealed Decision”.39
However, this principle does not apply when the arbitration agreement allows “third
parties” to appeal a decision. If the applicable anti-doping regulations provide
that WADA can appeal to the CAS, even if it was not a party to the first instance
proceedings, CAS panels consider that they can adjudicate WADA’s prayers for relief
whether or not they go beyond the object of the dispute in the first instance,40 in
particular when the first instance hearing body had avoided or refused to rule on
(all or part of) the merits of the dispute.
20 The notion of “object of the dispute before the previous instance” also includes
preliminary issues, like for instance the validity/legality of the provision on which
the decision under appeal was based. The arbitrators in Riis Cycling v. UCI Licencing
Commission even explicitly held that Art. R57 allowed the Panel to issue a declaratory
award on the legality of a provision in the relevant sports regulations as the Code
and the regulations themselves (by referring to the Code) “implicitly accept” the

36 The only limitation imposed by the Swiss Federal Supreme Court relates to exceptional
circumstances requiring the arbitrators to seek the parties’ views as to points of law; this is
so when they contemplate relying, for their decision, on “an authority or legal consideration
which was not referred to in the proceedings and the relevance of which could not therefore
possibly have been anticipated by either party […]” (BGer. 4A_400/2008 paras. 3.1 and 3.2;
Swiss Int’l Arb.L.Rep 2009, pp. 85–86).
37 CAS 2012/A/2817, Fenerbahçe Spor Kulübü v. Fédération Internationale de Football Association
(FIFA) & Roberto Carlos Da Silva Rocha, Award of 21 June 2013, para. 118.
38 CAS 2007/A/1433, Di Luca v. CONI, Award of 30 April 2008, para. 36; CAS 2006/A/1206,
Zivadinovic v. Iraqi Football Association, Award of 2 April 2007, para. 25. See also the cases
quoted in Mavromati, footnote 10, p. 50, in support of the statement that “the full power of
review cannot be wider than that of the appellate body”.
39 CAS 2007/A/1426, Gibilisco v. CONI, para. 61, and the references provided therein.
40 CAS 2007/A/1396 & 1402, WADA & UCI v. Valverde & RFEC, Award of 31 May 2010, para. 7,
confirmed by the Swiss Supreme Court upon a jurisdictional challenge (BGer. 4A_386/2010
para. 5.3.2, Rev.Arb. 2011, p. 826, with comments by Besson). See also Mavromati/Pellaux,
ISLR 2013, p. 40, who consider that Art. R57 allows the CAS to issue a sanction even when the
decision under appeal was a “decision not to enter into the merits of the case”.
Article R57 CAS Code – Rigozzi/Hasler 1663

possibility that the decision rendered in a specific case “may, and almost certainly
will, have consequences erga omnes that go beyond the dispute inter partes”.41
As a final matter, it bears to point out that Art. R57 does not alter each CAS panel’s 21
obligation to render a decision that does not go “beyond the claims submitted to it”
within the meaning of Art. 190(2)(c) PILS.42

4 Limitations of the Panel’s Power of Examination

a Arbitral Nature of the Proceedings

CAS panels often emphasize that their unrestricted power of review is reinforced 22
by the power to order at all times, if they deem it useful to complete the parties’
submissions, the production of additional documents and/or the taking of further
evidence, be it in the form of witness testimonies, through the appointment of
experts or by any other appropriate means.43 That said, the CAS’s powers are not
inquisitorial. The panel, as an arbitral tribunal, will “investigate the facts of its own
accord [only] if this appears appropriate on the basis of the parties’ submissions”44
and will refrain from, or at least be very reluctant to review the decision under ap-
peal “any further than the objections raised by the Appellant”45 (in accordance with
the so-called “Rügeprinzip”).46 For instance, a Panel held that since the Appellant
had deliberately decided to only challenge the independence of the first instance
body and the way in which it had conducted the proceedings (without offering the
witnesses he claimed were wrongfully excluded in the first instance), the Panel was
not in a position to re-hear the entire matter de novo, even if it had the power to
do so under Art. R57.47

b Limitations Contained in the Applicable Regulations?

Given that Art. R57(1) is a central provision in the CAS appeals system,48 sports 23
rules providing for a “limited appeal” to the CAS are unenforceable, unless such

41 CAS 2012/A/3055, Riis Cycling A/S v. the Licence Commission of the UCI, Award of 11 October
2013, paras. 8.15–8.16.
42 Cf. Arroyo, above commentary on Art. 190(2)(c) PILS (Chapter 2, Part II), paras. 55–61; cf.,
for instance, CAS 2008/A/1612, Rasmussen v. FMC, Award of 22 January 2009, para. 38; CAS
2008/A/1718, IAAF v. ARAF & Yegorova & others, para. 166, where the Panel noted that it was
of course “limited by the requests of the parties (the so called ‘petita’)”, and CAS 2007/A/1233
& 1234, FC Universitatea Craiova, Award of 19 December 2007, para. 66, as summarized in
Mavromati, footnote 11, p. 50. More recently, see also, e.g., CAS 2013/A/3432, Manchester
United FC v. Empoli FC SpA, Award of 21 July 2014, paras. 59–60.
43 CAS 2008/A/1555 & CAS 2008/A/1779, UCI v. Kashechkin & CFRK; Kashechkin v. CFRK & UCI,
Award of 10 August 2009, para. 70.
44 CAS 2003/A/455, W. v. UK Athletics, Award of 21 August 2003, para. 13.
45 Ibid.
46 Cf. Arroyo, above commentary on Art. 191 PILS (Chapter 2, Part II), paras. 9, 67–69. Should the
Panel decide to conduct a wider review, it will have to invite the parties to put forward their
positions (including evidence) in order to comply with their right to be heard (Art. 190(2)(d)
PILS).
47 CAS 2012/A/2829, R. v. CONI, Award of 28 February 2013, paras. 9.20–9.21.
48 Rigozzi, para. 1088.
1664 Arbitration in Switzerland – The Practitioner’s Guide

limitations have been specifically approved by the ICAS.49 Hence, the CAS has refused
to uphold Rule 60.27 of the International Association of Athletics Federations’ (IAAF)
Competitions Rules 2004–2005, which stipulated that, on the question of “exceptional
circumstances” in doping cases, the CAS could only review the materials presented
before the IAAF Doping Review Board and its review of the Board’s determinations
was limited to very narrow grounds.50 The CAS held that this rule was not compatible
with the power of review granted to its panels under Art. R57 of the Code.51 That
said, the CAS has allowed certain derogations from Art. R57. For instance, a CAS
panel accepted Art. 24.2 of the Rules of the New Zealand Sports Disputes Tribunal
which provides that, in the absence of any specific provision for a full appeal to
the CAS in the relevant sports regulations, the only grounds for appeal against a
decision by the Tribunal are a breach of natural justice or the incorrect application
of the law.52 In our view, such an (isolated) award is incorrect and was most likely
due to the purely national nature of the case. Even if one were to consider Art. R57
as a non-mandatory provision within the CAS arbitration system, CAS panels should
in any event review the sports decisions submitted to them with at least the same
powers of review as those that would be exercised by the competent adjudicating
authority in the absence of an arbitration agreement (i.e., before the state courts).
Given the mandatory nature of sports arbitration, a more “self-restraining” approach
could be tantamount to a denial of justice. Recent case law has endorsed this view.
For instance, the Panel in the well-known Katusha case explicitly noted the mandatory
nature of sports arbitration in discarding certain provisions in the applicable regu-
lations that restricted the scope of its review (in essence, limiting it to the question
whether the challenged decision was arbitrary). The Panel convincingly held that
“CAS jurisdiction cannot be imposed to the detriment of an athlete’s fundamental
rights. In other words, an athlete basically cannot be precluded from obtaining in
CAS arbitration at least the same level of protection of his or her substantive rights
that he or she could obtain before a State court.”53

49 CAS 2008/A/1700 & CAS 2008/A/1710, Deutsche Reiterliche Vereinigung e.V. v. FEI & Ahlmann;
Ahlmann v. FEI, Award of 30 April 2009, paras. 62–69.
50 Rule 60.27 of the then IAAF Competitions Rules, Chapter 3, Doping, read as follows: “[t]he
grounds for interfering with a Doping Review Board decision include: a) that no factual basis
existed for the Doping Review Board’s determination; b) the determination reached was
significantly inconsistent with the previous body of cases considered by the Doping Review
Board, which inconsistency cannot be justified by the facts of the case; c) that the determination
reached by the Doping Review Board was a determination that no reasonable review body
could reach.”
51 CAS-OG 04/003, Edwards v. IAAF & USATF, p. 5, para. 2.3.8, Digest of CAS Awards – Salt
Lake City & Athens, pp. 89, 93, para. 8. Although the CAS could have justified its decision by
simply upholding the supremacy of the arbitration rules over the arbitration agreement itself,
the panel added another argument, holding that Rule 60.27 violated a mandatory provision of
the WADC, namely Art. 13, which guarantees a full appeal to the CAS.
52 Rigozzi, para. 1088, citing CAS [NZ] Yachting New Zealand v. Murdoch, Cooke & Gair, Award
of 27 April 2004, para. 4.1.
53 CAS 2012/A/3031, Katusha Management SA v. Union Cycliste Internationale (UCI), Award of
2 May 2013, paras. 62–70. In this case the UCI regulations then in force expressly provided,
as to the panel’s scope of review, that “[t]he CAS shall examine only whether the contested
decision was arbitrary, i.e. whether it was manifestly unsustainable, in clear contradiction with
the facts, or made without objective reasons or subsequent upon a serious breach of a clear
and unquestioned rule or legal principle. It may only be overturned if its outcome is found to
be arbitrary”. See also CAS 2009/A/1782, Filippo Volandri v. ITF, Award of 12 May 2009, paras.
68–73, where the Panel held that it was not bound by Article O.5.1 of the 2008 ITF Programme,
providing that the CAS should limit its scope of review to a “consideration of whether the
Article R57 CAS Code – Rigozzi/Hasler 1665

As already mentioned, a narrower power of review is however possible, and arguably 24

desirable, when the decision under appeal is already an arbitral award, rendered
by an independent arbitration tribunal, itself vested with a full power of review. An
explicit limitation contained in the regulations providing for such a first instance
arbitration should thus be upheld by CAS.

c Field-of-Play Decisions

There is another inherent, sport-specific limitation to the CAS panels’ power of review. 25
The purpose of Art. R57(1) is clearly not to allow the CAS to review the decisions
made by referees, umpires and other officials during competitions. While it is generally
admitted that the traditional distinction between “rules of law” and “rules of the game”
is not sufficiently nuanced to take into account the professional and financial interests
at stake in modern sports,54 the fact that referee calls and other so-called field-of-play
decisions are not subject to review is an intrinsic feature of sports competition.55 There
are indeed strong sporting rationales underlying this doctrine, including (i) the
fact that referees and match officials are better placed than the arbitrators to make
such decisions, being on site and given their specific training and knowledge of the
particular sport, (ii) the principle that their authority should not be undermined,
(iii) the inevitable element of subjectivity of such decisions and the fact that in most
cases there is “no way to know what would have happened if the decision had gone
another way”, as well as, crucially, (iv) the need to ensure finality and to avoid constant
interruptions in competitions, which would “[open] the floodgates, [with the ensuing]
difficulties of rewriting records and results after the fact”.56
This is a matter of mere common sense; if all such decisions were fully reviewable, 26
then the final results of competitions would remain unknown long after the end of
the relevant race or game: they would be definitively fixed only months later, with
the arbitrators’ decision. This is all the more true nowadays, given that the available
technologies (instant video footage, allowing for zooming-in and out, replay in slow
motion, etc.) make it possible to scrutinize and challenge virtually all field-of-play
decisions. The CAS has consistently upheld the principle that “field-of-play” decisions
are not subject to review, or only to a very limited extent. Thus, for instance, a CAS
panel ruled that a ring judge’s determination that a boxer was to be disqualified due
to an alleged low blow was not reviewable on appeal.57 A similar “immunity” was
recognized by another CAS panel to the judges’ finding, during a race, that a walker
had “lifted”, in breach of the rules of walking.58

decision being appealed was erroneous” on the ground that such and “Agreements between
athletes and international federations are – in general terms – not concluded voluntarily on
the part of the athletes but rather imposed upon them unilaterally by the federation (ATF 133
III 235, 242 et seq. [i.e. the Cañas decision])”.
54 Kindle v. Fédération Motocycliste Suisse, BGE 118 II 12 para. 2.
55 CAS 2004/A/704 Young v. FIG, Award of 21 October 2004, para. 4.7. See also CAS 2015/A/4208,
H & O. v. FEI, Award of 15 July 2016, para. 48, referring to a “defining characteristics of the
lex sportiva, as a sport specific rule that guides much of sports competition at a fundamental
level”.
56 CAS 2015/A/4208, H. & O. v. FEI, para. 47 and the references, in particular to CAS 2010/A/2090,
Saarinen & Finnish Ski Association v. FIS, Award of 7 February 2011.
57 CAS–OG 1996/06, Mendy v. AIBA, Award of 1st August 1996, para. 4.
58 CAS–OG 00/013, Segura v. IAAF, Award of 30 September 2000, Digest of CAS Awards – Sydney
2000, p. 134. For a more recent example, see, e.g., CAS-OG 16/027, FFN & Aurélie Muller &
 1666 Arbitration in Switzerland – The Practitioner’s Guide

27 Although the terminology used to describe all such non-reviewable decisions may
vary (“technical rules”, “rules of the game”, “judgment calls”, etc.), the fundamental
need to define and circumscribe the scope of the autonomy of “field-of-play” rules
and the resulting decisions is essentially intuitive. The definition of what falls within
the ambit of the “field-of-play” must primarily be sought in the applicable sports
regulations. For instance, Art. 58(3)(a) of the FIFA Statutes explicitly provides that
“the CAS […] does not deal with appeals arising out of violations from the Laws of
the Game”. If the applicable sports regulations do not contain a clear definition of
the “field-of-play” rules and decisions that are not subject to review, “it is for the
arbitral tribunal […] to interpret the regulations and to decide, e.g., whether their
rationale implicitly excludes certain rules and decisions from being reviewed and
within what limits”.59 Drawing a line between what can be reviewed and what is
inherently final and thus immune from review is not a straightforward issue. The
task is particularly difficult when the rules provide for the possibility of reviewing
the decision immediately after the competition. The CAS Panel in Saarinen held that
the field of play doctrine should also apply in those situations, at least on a prima
facie basis.60 We would submit that in such cases the result is by definition capable
of being altered after the race and thus there is a presumption that the doctrine
does not apply; such presumption could however be rebutted if it is shown that
the decision at stake was itself quintessentially a field of play decision: only in that
case is it right, to use the language of the Panel in H. & O. v. FEI, that “the post-
match review provided for by the rules would lead to a complete end run around
the ‘field of play’ doctrine, frustrating all of the public interest and other objectives
that underlie it”.61 It goes without saying that when it has become impossible to
rewrite the records and results without affecting the integrity of the competition (for
instance because the dispute concerned a qualifying event and the final has already
taken place, or the subsequent phase of the competition is already underway) any
review should be ruled out. When the rewriting is possible, the arbitrators should
be reluctant to step in when it is impossible or even difficult to determine what the
result of the competition would have been if the referee, umpire or match official
had decided the other way.
28 When a decision qualifies as a “field of play decision”, CAS jurisprudence recognizes
a very limited exception to its “immunity” under the field-of-play doctrine, namely
when it was taken in bad faith62 or arbitrarily,63 or if it was adopted in “violation
of the law, social rules or general principles of law”.64 How exactly a panel should

CNOSF v. FINA, Award of 20 August 2016.

59 CAS 2009/A/1783, Woestenborghs v. ITU, Award of 14 October 2009, para. 124.
60 CAS 2010/A/2090, Saarinen & Finnish Ski Association v. FIS, Award of 7 February 2011, paras.
35(6) and 38.
61 CAS 2015/A/4208, H. & O. v. FEI, Award of 15 July 2016, para. 52, noting that allowing review
by CAS “would have the most undesirable result that sports bodies would be forced to write
out of their rule books any mechanism for post-match review of the original match official’s
decision, to ensure that the ‘qualified immunity’ his or her decision enjoys was maintained”.
62 CAS–OG 1996/06, Mendy v. AIBA, Award of 1st August 1996, para. 4; CAS–OG 02/007, KOC v.
ISU, Award of 23 February 2002, Digest of CAS Awards – Salt Lake City 2002 & Athens 2004,
p. 71; CAS 2004/A/727, De Lima BOC v. IAAF, Award of 8 September 2005, para. 29.
63 CAS 2004/A/704, Young v. FIG, Award of 21 October 2004, paras. 4.5–4.6; CAS–OG 02/007,
KOC v. ISU, Award of 23 February 2002, Digest of CAS Awards – Salt Lake City 2002 & Athens
2004, p. 71; CAS 2004/A/727, De Lima BOC v. IAAF, Award of 8 September 2005, para. 29.
64 CAS–OG 1996/06, Mendy v. AIBA, Award of 1st August 1996, para. 4; CAS–OG 00/013, Segura
v. IAAF, Award of 30 September 2000, Digest of CAS Awards – Sydney 2000, 2001, p. 134.
Article R57 CAS Code – Rigozzi/Hasler 1667

determine whether this threshold has been crossed is not entirely well-established.
What is clear, however, is that there must be particular circumstances, in addition
to the simple fact that the decision at stake is “wrong”.65 Such circumstances could
be, for instance, factors related to the conduct of the umpire/referee himself, such
as obvious bias, bribery or corruption.66 In some cases, objective circumstances
can also call for a review of the decision, namely when it is fundamentally at odds
with general principles of law. Putting this principle into effect, CAS panels have
ruled that, in light of its consequences for the sanctioned athlete as well as the other
competitors, the decision at issue ought not to be manifestly disproportionate or
arbitrary, nor result in an unjustified discrimination against the athlete.67 This kind
of formulation impliedly calls for a balancing of the interests of all those concerned
or affected by the decision (the relevant federation(s), the athlete who is subject
to the sanction and his or her competitors). All in all, however, the threshold for a
field-of-play decision to be deemed reviewable is rather high.68

d Discretionary and Experience-Based Decisions

Traditionally, state courts are extremely cautious in reviewing internal decisions by 29

sports- governing bodies. As an Australian arbitrator (nicely) put it, the same is not
necessarily true of CAS arbitrators:

“I am conscious of the caution held out to me, by Counsel for the Australian
Cycling federation, that I should be careful not to readily trespass into the
selection processes of a professional cycling organization which processes
clearly embrace a wealth of experience and expertise that I cannot hope to
share. Counsel referred me to two decisions of the Courts during the course
of which the learned judges had expressed such caveats (Sheehy v. Judo
federation of Australia Inc., unreported, Equity Division, Supreme Court of
N.S.W., 1 December, 1995, and McInnes v. Onslow-Fane (1978) 1 WLR 1520).
Those judgments convey the caution which the Courts of law traditionally
exercise in interfering with the decisions of domestic bodies. […] I agree
with the sentiments so expressed, but there must be necessarily a rider
placed upon them in the context of this arbitration. The CAS is not a court
of law. It is an arbitral tribunal set up to entertain disputes referred to it
(inter alia) by agreement of the domestic body if the agreement between the
parties requires it to do so. In this case the parties have executed an ‘appeal
agreement’ in which they agree to refer to the exclusive jurisdiction of the
CAS any dispute regarding (inter alia) ‘the nomination of an athlete by

65 CAS–OG 02/007, KOC v. ISU, Award of 23 February 2002, Digest of CAS Awards – Salt Lake
City 2002 & Athens 2004, 2004, p. 70.
66 CAS–OG 02/007, KOC v. ISU, Award of 23 February 2002, Digest of CAS Awards – Salt Lake
City 2002 & Athens 2004, 2004, p. 70; CAS 2004/A/727, De Lima BOC v. IAAF, Award of 8
September 2005, para. 30.
67 CAS–OG 00/004, COC & Kibunde v. AIBA, Award of 18 September 2000, Digest of CAS Awards
– Sydney 2000, 2001, para. 12. Cf. also CAS 2001/A/354, IHA v. FIH and 2001/A/355 LHF v.
FIH, Award of 15 April 2002, CAS Digest III, p. 489, 497; CAS 93/103, SC Langnau v. LSHG,
Award of 15 November 1993, CAS Digest I, p. 307, 313.
68 CAS–OG 02/007, KOC v. ISU, Award of 23 February 2002, Digest of CAS Awards – Salt Lake
City 2002 & Athens 2004, 2004, p. 70; CAS 2004/A/727, De Lima BOC v. IAAF, Award of 8
September 2005, para. 29.
 1668 Arbitration in Switzerland – The Practitioner’s Guide

the ACF to be a member of the 1996 Olympic Team’. By their agreement the
parties thus want the selection decision scrutinised by this Tribunal […].”69
30 In general, sports-governing bodies are prepared to accept a greater measure of
intervention by the CAS. As a specialized tribunal, the CAS is assumed to be
familiar with the specificities of sport, and thus capable of substituting its own
judgment for that of the governing bodies, even when the decisions at stake require
some sports-specific knowledge. However, some restraint is advisable when, under
the applicable rules, the first instance adjudicative body enjoyed a great deal of
discretion, in particular when the manner in which this discretion is to be exercised
involves a sport-specific judgment.
31 The main area where discretion plays an important role is in selection disputes. The
extent of the arbitrators’ scrutiny in such cases depends on the degree of discretion
that the applicable rules afford to the selection body. Where a selection body is
to apply purely objective criteria, CAS panels will be free to review its decisions.
When the applicable rules provide that the selection authority retains some degree
of discretion or if they call for the application of subjective criteria, the CAS will not
intervene in the selection process, unless it is established that the selection authority
abused its discretion or acted in an arbitrary manner,70 for instance by deliberately
changing the applicable criteria in order to favor an athlete or team over others.71
32 A similar standard has been applied with respect to integrity checks conducted prior
to elections for important positions within a sports-governing body. In upholding
the standard of integrity applied by the relevant authority in a case concerning the
elections to the FIFA presidency, a CAS Panel held that

“it shall give a certain deference to the FIFA Ad-hoc Electoral Committee
in deciding whether a person is a suitable candidate for the office of FIFA
President and that such decision shall only be overturned if the Panel is
of the view that the FIFA Ad-hoc Electoral Committee could not reasonably
have come to the conclusion reached.”72
33 In doping cases, the CAS has ruled that “[i]n respect to disputes relating to the
grant or denial of a [Therapeutic Use Exemption (TUE)73 ] the Panel confirms that
the exercise of the jurisdiction conferred upon it by the pertinent arbitration clause
and by the Code must be restrained [as follows]: [the] role of the CAS Panel is
not that of substituting itself for the TUE Committee of the relevant anti-doping
organization […]”.74

69 CAS 96/153, Watt v. ACF & Tyler-Sharman, Award of 22 July 1996, CAS Digest I, p. 340.
70 CAS-OG 06/002, Schuler v. Swiss Olympic Association, Award of 12 February 2006, paras. 18–19.
71 CAS-OG 06/008, Dal Balcon v. CONI & FISI, Award of 18 February 2006, para. 5.10.
72 CAS 2015/A/4311, B. v. FIFA, Award of 19 February 2016, para. 64.
73 As explained on the WADA website, “[a]thletes may have illnesses or conditions that require
them to take particular medications. If the medication an athlete is required to take to treat
an illness or condition happens to fall under the Prohibited List, a Therapeutic Use Exemption
(TUE) may give that athlete the authorization to take the needed medicine” (see <https://
www.wada-ama.org/en/what-we-do/science-medical/therapeutic-use-exemptions>).
74 CAS 2004/A/717, International Paralympic Committee v. Brockman & WADA, Award of 8 June
2005, para. 51.
Article R57 CAS Code – Rigozzi/Hasler 1669

e Deference?

Apart from the specific instances mentioned above, CAS panels have consistently 34
held the view that “no deference to the tribunal below is required beyond the
customary caution appropriate where the tribunal had a particular advantage, such
as technical expertise or the opportunity to assess the credibility of witnesses”.75
Some panels have added that “[t]his is not, of course to say that the independence,
expertise and quality of the first instance tribunal or the quality of its decision will
be irrelevant to the [panel]. The more cogent and well-reasoned the decision itself,
the less likely a CAS panel would be to overrule it; nor will a CAS panel concern
itself in its appellate capacity with the periphery rather than the core of such a
decision”.76 In the landmark Glasner case involving the restitution of a gold medal,
the Sole Arbitrator underscored that he failed to see why (i) an internal tribunal
or indeed a sports-governing body would have greater expertise in applying the
anti-doping rules implementing the WADA Code than a CAS panel, given the truly
transnational character of such rules, or (ii) why the risk that the matter be decided
“according to [the adjudicators’] subjective sensitivity” would be any greater before
the CAS than at the level of the federation organs.77
One of the reasons why the need for a certain degree of deference is often put forward 35
is the fact that the panels’ full power of review constitutes an incentive to file an
appeal in the CAS, even to get a small reduction of the sanction.78 This argument
has some bearing in disciplinary cases where the CAS proceedings are free of charge.
However, as noted by the Sole Arbitrator in the above-mentioned Glasner case, “these
[alleged negative] consequences would have to be balanced with those resulting
from granting (partial) immunity [as this] might induce organs of federations (to a
certain extent) to misuse their adjudicative powers to the detriment of the athletes”.79
It is telling that where a sports-governing body has a right to appeal, like for instance 36
WADA in doping cases, it is less inclined to have the scope of the CAS power of
review reduced. On one occasion at least the CAS limited the scope of its review in
favor of an athlete: noting that the first instance body had exonerated the athlete
because of deficiencies displayed by the laboratory or another body in connection

75 CAS 2012/A/2924, UCI v. Monica Bascio & USADA, Award of 14 June 2013, para. 48, endors-
ing CAS 2011/A/2518. See also CAS 2013/A/3124, Rashid Mohd Ali Alabbar v. FEI, Award of
September 2013, para. 11.2, where the Panel observed that “that this bears on the exercise of
the powers, not their extent; and is only germane in circumstances where the sanction is a
matter of discretion.”
76 CAS 2012/A/2959, WADA v. Ali Nilforushan & FEI, Award of 30 April 2013, para. 8.2, endorsing
the comment of the Panel in CAS 2010/A/2283, which noted that it “would be prepared to accept
that it would not easily “tinker” with a well-reasoned sanction, i.e. to substitute a sanction of
17 or 19 months’ suspension for one of 18. It would naturally (as did the [p]anel in question)
pay respect to a fully reasoned and well-evidenced decision of such a Tribunal in pursuit of a
legitimate and explicit policy. However, the fact that it might not lightly interfere with such a
Tribunal’s decision, would not mean that there is in principle any inhibition on its power to
do so”.
77 CAS 2013/A/3274, Mads Glasner v. FINA, Award of 31 January 2014, para. 64.
78 It is notorious that several sports-governing bodies consider that CAS panels are often inclined
to slightly reduce the sanction while fully supporting the rationale and reasoning of the decision
under appeal in what they perceive as being a way of showing that “CAS matters”.
79 CAS 2013/A/3274, Mads Glasner v. FINA, Award of 31 January 2014, para. 64–69, referring to
the risk of “systematic filing of appeals” raised in FINA’s written submission.
 1670 Arbitration in Switzerland – The Practitioner’s Guide

with internal procedures during the pre-hearing stage of the disciplinary proceedings,
the Panel held that “its function in applying the de novo standard as an appellate
body is only to determine, on the basis of the evidence submitted to [it], whether the
[first instance] evaluation is soundly based and whether the conclusion consequently
derived from those facts by the [first instance] is equally sound” and not to “rectify
the deficiencies” identified by the first instance.”80
37 Indeed, the WADC 2015 expressly states in a subsection to Art. 13.1 (Decisions
Subject to Appeal), that “[i]n making its decision [on appeal], CAS need not give
deference to the discretion exercised by the body whose decision is being appealed”.
Irrespective of the (arguably self-serving) reasons why this new provision was added,
the fact is that it also meets the legitimate expectation of the sanctioned athletes to
have access to (at least) one instance of justice: “doping sanctions strongly affect the
rights of an athlete and […] federation instances do not provide for access to justice
within the meaning of Art. 6(1) ECHR, since they do not guarantee adjudication of
the facts and the law by a truly independent judicial instance.”81 Hence, athletes too
are not required to go so far as to show that the decision under appeal was “one
which no reasonable tribunal could have reached or that the decision was defective
either in taking into account matters which it should not have done or failing to
take into account matters which it should have done”.82
38 It is submitted that the issue is not one of deference, but rather one of comity.
Indeed nothing prevents a CAS panel from considering that the decision under
appeal is persuasive, where the proceedings were conducted professionally and in
compliance with fundamental procedural guarantees, and the ruling is particularly
well-reasoned, as may be the case of the decisions of specialized tribunals, like, for
instance, the UCI Anti-Doping Tribunal.83
39 Deference stricto sensu only comes into play in cases where the decision under
appeal is already a genuine arbitral award rendered by a true arbitral tribunal (Art.
R47(2)).84 Pursuant to Art. R57, the CAS will conduct a de novo review of the first
arbitral award, which means in particular that “it is the duty of the [CAS] Panel
to make its independent determination of whether the Appellant’s contentions are
correct, not to limit itself to assessing the correctness of the [previous] award”.85 That
said, it is submitted that in cases under Art. R47(2), the findings of the first-instance

80 CAS 2012/A/2922, WADA v. Federaçao Pernambucana de Futebol & Alex Bruno Costa Fernandes,
Award of 10 December 2013, paras. 101–106. The Panel emphasized the exceptional nature of
this case, explicitly pointing out that the lower instance disciplinary bodies had acknowledged
the mismanagement of the athlete’s results at various levels and decided to exonerate him of
all wrongdoings precisely because of those deficiencies.
81 CAS 2013/A/3274, Mads Glasner v. FINA, Award of 31 January 2014, para. 65, referring to CAS
2011/A/2384 & 2386, UCI & WADA v. Contador Velasco & SCF, paras. 17 et seq. for the relevance
of Article Art. 6(1) ECHR.
82 CAS 2013/A/3080, Alemitu Bekele Degfa v. TAF and IAAF, Award of 14 March 2014, para. 64.
83 The case law of the UCI Anti-Doping Tribunal is available at <http://www.uci.ch/news/
article/anti-doping-tribunal/>. The issue of whether other first instance decisions may set
precedents does not pertain to Art. R57 but is very similar under the suggested approach (see
CAS 2013/A/3075, WADA v. Laszlo Szabolcs & RADA, Award of 12 August 2013, para. 9.11,
where the Panel rules out any “deference” on the ground that “the underlying facts of these
other NADO decisions [being] unknown to the Sole Arbitrator, the latter is prevented to take
these into account in the present case”).
84 Cf. Art. R47, para. 46 above.
85 CAS 2007/A/1394, Landis v. USADA, Award of 30 June 2008, p. 6 at the end.
Article R57 CAS Code – Rigozzi/Hasler 1671

arbitral panels are entitled to some deference,86 unless it appears that significant
new evidence has been introduced before the CAS by WADA and/or by the relevant
international federation (which were not parties to the first arbitration proceedings).
However, in non-doping disputes, numerous CAS panels have mechanically repeated 40
the principle that “only if the sanction is evidently and grossly disproportionate in
comparison with the proved rule violation and if it is considered as a violation of
fundamental justice and fairness, would the panel regard such a sanction as abusive
and, thus, contrary to mandatory Swiss law”.87

B The Panel’s Decision-Making Power

Importantly, Art. R57 provides the CAS with a choice: “the Panel […] may issue a 41
new decision which replaces the decision challenged or annul the decision and refer
the case back to the previous instance” (1.). Here again, Art. R57 vests CAS panels
with wider powers than those normally enjoyed by the courts, notably when the
sports-governing body having issued the decision under challenge is incorporated
in Switzerland (2.).

1 New Decision versus Annulment

Given its ability to make an independent determination, the CAS is not limited to 42
assessing the correctness of the challenged decision, but can also issue a new deci-
sion based on the applicable regulations.88 In normal circumstances, the CAS will
render a new decision to replace the challenged decision. As already mentioned,
this is the solution that is more frequently adopted in practice, as it helps achieve
a timely resolution of the dispute.
In exceptional cases, however, despite its power to make a de novo determination, 43
the CAS may deem it preferable to annul the decision and refer the case back to the
previous instance.89 This solution may be sensible in cases where the disciplinary
body that issued the first instance decision enjoys broad discretion in its determina-
tions and/or when the decision in question rests on considerations that are subjective
in nature, e.g. in selection disputes.90

86 Cf. CAS 2008/A/1473, Warren v. USADA, Award of 24 July 2008, para. 134 (on appeal from
an award rendered by a North American Court of Arbitration for Sports Panel in arbitration
proceedings administered by the AAA).
87 Cf. e.g., CAS 2005/A/1001. More recently, CAS 2014/A/3467, Guillermo Olaso de la Rica v. TIU,
Award of 30 September 2014, para. 121, with further references.
88 Rigozzi, para. 1080.
89 Rigozzi, p. 556 (footnote 3018); CAS 2001/A/340, S. v. FIG, Award of 19 March 2002, para. 17,
referring to CAS 2000/A/281, Haga v. Fédération Internationale de Motocyclisme (FIM), Award
of 22 December 2000, and CAS 2000/A/290, Xavier & Everton v. UEFA, Award of 2 February
2001.
90 CAS-OG 06/008, Dal Balcon v. CONI & FISI, Award of 18 February 2006, para. 5.11. In this case,
the Panel noted that, as such, the original selection rule was discretionary in nature, and that
if it were not “under a time pressure not normally found in selection proceedings [it] might
have referred the matter back to the [selection body] for reconsideration”.
 1672 Arbitration in Switzerland – The Practitioner’s Guide

2 Relationship with Article 75 CC

44 Given that many international sports federations and other sports-governing bod-
ies are incorporated as associations under Swiss law within the meaning of Arts.
60–79 CC, the powers granted to the CAS under the Code inevitably give rise to
the question of the relationship between Art. R57 and Art. 75 CC, the provision
governing challenges against Swiss associations’ decisions before the ordinary courts.
According to the Swiss Federal Supreme Court, judicial powers of review under
Art. 75 CC are limited, to the extent that courts of law can only affirm or set aside
the decisions issued by associations (so-called “effet cassatoire”).91 As a result, any
new and revised decision must be taken by the association itself. The underlying
rationale for this restriction is to protect the autonomy of associations from undue
interference by the State.
45 While some scholars maintain that the “effet cassatoire” of Art. 75 CC is mandatory
as a matter of Swiss law,92 it is submitted that the parties’ agreement to arbitrate
under (Art. R47 of) the CAS Code prevails over the default rules that would apply
in the absence of an arbitration agreement. Indeed, the rationale for restricting the
courts’ powers, i.e., to protect the autonomy of associations, becomes moot when it
is the association itself that has decided to include an arbitration clause in its own
statutes or regulations. By agreeing to accept the arbitral jurisdiction of the CAS,
sports associations necessarily accept the fundamental principles of the CAS Code,
including that of de novo review in appeals proceedings.93

III THE HEARING

A The Panel’s Directions

46 In line with Art. R57(2), after the appeal brief and the answer have been filed, CAS
panels generally issue the following standard procedural directions: “[t]he parties
are invited to inform the CAS Court Office, by [date], whether their preference is for
a hearing to be held in this matter or for the Panel to issue an award based on all
the parties’ written submissions. In accordance with Article R57 of the Code, it will
in any event be for the Panel to decide whether to hold a hearing”. Experience shows
that appellants almost systematically request a hearing, as this will be their only
opportunity to rebut the factual and legal arguments contained in the respondents’
answer.
47 Unless the parties agree that a hearing is not necessary, CAS panels will practically
always decide to hold one.94 If they do, they will issue a so-called “Order of Procedure”
including a standard paragraph to the effect that “in accordance with Article R57
of the Code, the parties, experts and witnesses, if any, will be heard at the hearing,

91 Kindle v. Fédération Motocycliste Suisse, BGE 118 II 12 para. 1.c.

92 Scherrer, SpuRt 2003, p. 127.
93 CAS 2008/A/1700 & CAS 2008/A/1710, Deutsche Reiterliche Vereinigung e.V. v. FEI & Ahlmann;
Ahlmann v. FEI, Award of 30 April 2009, para. 66; CAS 2005/A/847, Knauss v. FIS, Award of
20 July 2005, para. 7.1.: “since the powers of the present court of arbitration are of a private
nature, not of a state nature, there is, in the Panel’s opinion, from the very outset, an absence of
any legitimate grounds for application of Art. 75 CC in the context of the present proceedings”.
94 Cf. paras. 48–51 below.
Article R57 CAS Code – Rigozzi/Hasler 1673

which will be held: on [date] at [time] at [location95 ]. It is the responsibility of the

parties to convene the witnesses and/or experts as well as the interpreters, if any,
at the hearing and to ensure their presence at the expenses of the party which has
requested their attendance”. This order constitutes the “minimum requirement” with
respect to the directions the panel shall issue according to Art. R44.2(1). Tradition-
ally, additional directions are issued only if the parties disagree in advance on the
conduct of the hearing. In particularly litigious cases, CAS panels have on occasion
held a pre-hearing conference to solve as many procedural and organizational issues
as possible ahead of the hearing.96

B The Actual Conduct of the Hearing

Article R44.2(1) states that at the hearing “the Panel hears the parties, the wit- 48
nesses and the expert[s] as well as the parties’ final oral arguments, for which the
Respondent has the floor last.” As indicated above, in the vast majority of cases,
the panel will not issue specific directions as to the actual conduct of the hearing.
While each panel may have its own approach, experience shows that the hearing
will normally be conducted according to the following sequence: (1) discussion of any
outstanding procedural issues, (2) appellant’s opening statement, (3) respondent’s
opening statement, (4) examination of the witnesses and/or experts, if any, presented
by the appellant, (5) examination of the witnesses and/or experts, if any, presented
by the respondent, (6) oral arguments/closing submission by the appellant, (7) oral
arguments/closing submission by the respondent, (8) brief closing statement and/
or (preliminary) indication of any further procedural directions that the panel may
intend to issue (e.g., with regard to post-hearing briefs or costs submissions) by
the (President of the) panel.97
The examination of witnesses will generally be conducted in the following order: (i) 49
direct examination (or confirmation of the witness statement), (ii) cross-examination,
(iii) re-direct and re-cross examination, if allowed by the panel. The style of cross-
examination should be adjusted to take into account the legal backgrounds of the
parties and their representatives, the scope and length of the witness statements and
the importance of the witness testimony at issue, in particular where the witness
under examination has brought serious accusations against a party.98
According to Art. R44.2(2), the President of the panel conducts the hearing. 50
In practice, the members of the panel can put questions to the parties and their

95 Generally, hearings are held at the CAS headquarters in Lausanne (Chateau de Béthusy), unless
travel and/or other housekeeping/organizational reasons make it more efficient to hold the
hearing in a different location.
96 Martens Dirk-Reiner, The Role of the Arbitrator in CAS Proceedings – Reflections on How to
Prepare for and Conduct a Hearing of a CAS Case (paper on file with the authors), para. 4.4.2.
For a recent example, cf. CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/FC Sion, Award
of 31st January 2012, para. 117.
97 In disciplinary cases, we submit that, despite the order provided for in Art. R44.2(1) the
sports-governing body should go first even if, technically, it is the respondent in the arbitration.
In any event, the athlete should be given the right to make a final statement at the end of the
hearing.
98 In such instances, it is submitted that panels should allow for extensive cross-examination, in
order to ensure that the credibility of (accusing) witnesses is properly tested (see, e.g., CAS
2010/A/2226, Queiroz v. ADoP, Award of 23 March 2011, paras. 6.9–6.20 and 9.16–9.17).
 1674 Arbitration in Switzerland – The Practitioner’s Guide

representatives, as well as to the witnesses and experts, at any time throughout

the hearing. Art. R44.2(2) also provides, in a rather more directive tone than that
used in other arbitration rules, that the President of the panel shall “ensure that
the statements made are concise and limited to the subject-matter of the written
presentations, to the extent that these presentations are relevant”. Art. R44.2(5)
adds that the panel may limit or disallow the appearance of any witness or expert,
or any part of a proposed testimony, on the ground of irrelevance.
51 Pursuant to Art. R44.2(4), the President of the panel may authorize the hearing of
witnesses and experts via tele-conference or video-conference. Despite the fact that
the adverb “exceptionally” was removed from this provision (in 2012), it is submitted
that this possibility should be used only sparingly, namely when there are overriding
time and/or costs constraints. Important witnesses and experts should appear in
person if the party wishing to cross-examine them so requests. Appearance in person
is particularly important for experts providing evidence on behalf of anti-doping
organizations charging an athlete, unless it is clear from the outset that the athlete’s
challenge of the analysis or other relevant issues is based on spurious grounds.
Recourse to tele- or video-conferencing should also be avoided for the hearing of
witnesses or experts located in parts of the world where communications are not
reliable. In any event, if the President of the panel does allow a hearing by tele- or
video-conference, he or she should, out of precaution, adopt clear rules as to the
consequences that will apply in case a person cannot be heard/examined due to a
failure in communications. Even if this is not expressly provided for in the Code,
CAS panels can also allow the parties and/or their legal representatives to appear
by tele- or video-conference. By requesting to appear by tele- or video-conference,
a party must be deemed to have waived any right to equal treatment in respect of
the manner in which it is heard.

C Publicity and Recording

52 Article R57 provides for an “in camera hearing, unless the parties agree otherwise.”
In practice, almost all CAS hearings are held in camera.
53 The Swiss Federal Supreme Court has considered, in the Pechstein case, an athlete’s
arguments in support of her right to a public hearing within the meaning of the
ECHR. The Supreme Court held that the CAS’s refusal to allow the athlete’s man-
ager to attend a hearing did not violate her fundamental right to a public hearing
because Art. R57 only provides for a public hearing if the parties agree to it.99 As
a rule, international arbitration proceedings are not public.100 Furthermore, a party

99 BGer. 4A_612/2009 para. 4.1 (Pechstein v. International Skating Union). The Supreme Court
itself refused to hold a public hearing as requested by the athlete (BGer. 4A_612/2009 para.
4.2), by stating that “[u]nlike the proceedings before the CAS, which freely assesses any issues
of fact and law, the scope of judicial review in the context of setting aside proceedings before the
Supreme Court is significantly limited. In these challenge proceedings, a decision can be taken on
the basis of the record; ordering a public hearing (Art. 57 BGG), as requested by the Appellant, is
not advisable. A mandatory public hearing before the Supreme Court, as exceptionally required
by the ECHR – in case of claims according to Art. 120(1)(c) BGG or where the Court intends
to adjudicate the matter itself […] based on its own factual findings […], is not an option in
challenge proceedings against arbitral awards pursuant to Art. 77 BGG” (free translation from
the German original).
100 BGer. 4A_612/2009 para. 4.1.
Article R57 CAS Code – Rigozzi/Hasler 1675

cannot rely on Art. 6(1) ECHR, Art. 30(3) of the Swiss Federal Constitution and
Art. 14(1) ICCPR101 to assert the right to a public hearing, as these provisions are
not applicable to voluntary arbitration proceedings.102 However, the Court added
the following proviso:103

“That said, in view of the standing of the CAS in the field of sports, it would
be desirable for a public hearing to be held when this is requested by the
athlete concerned, with a view to [enhancing] trust in the independence
and fairness of the decision-making process.”
Since the dates of the main hearings are listed on the CAS website, it is not unusual 54
for journalists to show up at the CAS premises on the date of important hearings.
The CAS seems to be inclined to allow the press to take photographs or to film the
hearing room and the participants before the commencement of the hearing, but
the hearing as such remains closed to the public.
In CAS appeals arbitrations, no verbatim transcript is produced of what is said at 55
the hearing. Art. R44.2(2) provides that “minutes of the hearing may be taken”. In
practice, the contents of the hearing are recorded in an audio file. The parties may
request a copy of the recording (on a CD). Given the fact that the hearing is not
public, the CAS might ask the parties to state the reason why they make such a
request. A copy of the audio recording must be provided to a party before the award
if the panel ordered post-hearing briefs or if there was a procedural incident during
the hearing to which a party wishes to direct the panel’s attention in writing. After
the award, a copy of the recording must be provided to a party wishing to file an
action to have the award set aside based on what was said during the hearing. It
is submitted that in such circumstances the CAS should inform the other party or
parties of the request and ask them to indicate whether they also wish to receive
a copy of the recording.

D The Decision not to Hold a Hearing

Article R57(2) provides that “[a]fter consulting the parties, the Panel may, if it deems 56
itself to be sufficiently well informed, decide not to hold a hearing. As seen above,
in the standard letter acknowledging receipt of the respondent’s answer, the CAS
invites the parties “to inform the CAS […] whether their preference is for a hearing
to be held in this matter or for the Panel to issue an award based on the parties’
written submissions only”, and reminds them that “[i]n accordance with Art. R57
of the Code, it will in any event be for the Panel to decide whether to hold a hearing”.
As the arbitration rules provide for one single exchange of submissions, the decision 57
not to hold a hearing can be problematic with respect to the parties’ right to be heard
in adversarial proceedings, guaranteed by Arts. 182(3) and 190(2)(d) PILS. As a
rule, the panel will decide a dispute without a hearing only upon a joint request

101 International Treaty on Civil and Political Rights of 16 December 1966, in force in Switzerland
since 18 September 1992, SR 0.103.2 (in German: Internationaler Pakt vom 16. Dezember 1966
über bürgerliche und politische Rechte; in French: Pacte international du 16 décembre 1966 relatif
aux droits civils et politiques).
102 BGer. 4A_612/2009 para. 4.1.
103 BGer. 4A_612/2009 para. 4.1 (free translation from the German original).
 1676 Arbitration in Switzerland – The Practitioner’s Guide

from the parties.104 In that case, the parties are deemed to have waived any claim
based on their right to be heard. The same should apply when the request not to
hold a hearing comes from the appellant: in that case, the respondent will have had
a full opportunity to respond, in its answer, to the appeal brief and the appellant
will be deemed, by his or her request, to have voluntarily waived his or her right to
reply to the answer. By way of contrast, the panel should be very reluctant to decide
not to hold a hearing against the will of the appellant. As already mentioned, the
Supreme Court’s decision that the parties can validly waive their right to reply by
agreeing to a single exchange of submission only applies when the waiver was fully
informed.105 This is clearly not the case when the principle of a single exchange is
set out in the arbitration rules, in particular when their application is mandatorily
provided for by the applicable sports regulations and has thus not been genuinely
agreed by the parties. In practice, it is very rare that the appellant will be happy
to allow the panel to rule on the case without a hearing, which is why in the vast
majority of appeals cases a hearing does take place.106
58 If the parties have submitted witness or expert evidence, the holding of a hearing is
necessary, unless the parties accept the contents of the witness/expert statements
produced and do not wish to cross-examine the persons having rendered such
statements, or if the panel considers that the witness and/or expert evidence in
question is irrelevant.
59 It is submitted that a hearing should be held in any event in disciplinary cases if the
athlete so requests in order to appear in person before the panel.

E The Consequences of a Failure to Appear at the Hearing

60 According to Art. R57(4), “[i]f any of the parties or any of its witnesses, having been
duly summoned, fails to appear, the Panel may nevertheless proceed with the hearing
and render an award”. If the hearing does go ahead even in the absence of a party,
experience shows that panels will tend to “substitute” for the non-appearing party
by putting questions to the appearing party. These questions are basically aimed
at ensuring that all relevant factual allegations and legal arguments are properly
“tested” before a decision is made.
61 In doping cases, athletes must be aware of the fact that according to Art. 3.2.5 of
the WADA Code, the panel “may draw an inference adverse to the Athlete or other
Person who is asserted to have committed an anti-doping rule violation based on
the Athlete’s or other Person’s refusal, after a request made in a reasonable time in
advance of the hearing, to appear at the hearing (either in person or telephonically
as directed by the hearing panel)”.107

104 Cf., e.g., CAS 2005/A/908, WADA v. Wium, Award of 25 November 2005, para. 3.4. In this case
the parties agreed because the Panel had allowed a second round of written submissions.
105 BGE 142 III 360.
106 The only real exception is when the panel has already allowed at least a complete second
round of written submissions (cf., e.g., CAS 2009/A/1545, Anderson et al. v. IOC, Award of 18
December 2009, paras. 14–30, where several submissions were allowed).
107 Oddly, the same does not seem to apply to an anti-doping organization that decides not to
appear at the hearing (cf. CAS 2010/A/2161, Wen Tong v. IJF, Award of 23 February 2011, where
the Panel tested all the contentions made by the Appellant in the absence of the Respondent).
 1677

Article R58: Law Applicable to the Merits

The Panel 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 that the Panel deems appropriate. In the latter case,
the Panel shall give reasons for its decision.

I PURPOSE OF THE PROVISION

In order to resolve disputes, arbitrators, as all adjudicators, are required to apply the 1
relevant rules to the facts they have established. Art. R58 indicates how CAS panels
are to determine the substantive rules and/or law(s) to be applied to the merits of
the disputes submitted to them pursuant to the appeals procedure.1 Art. R58 is to
be read in light of both the governing Swiss arbitration law (II.), which it reflects
to the extent that it gives precedence – always within the limits of mandatory rules
and public policy (V.) – to party autonomy as the principal connecting factor (III.),
but also the fact that it regulates issues of applicable law in the particular context of
appeals proceedings. Indeed, Art. R58 places specific limits on party autonomy and
on the authority of arbitrators to determine the applicable substantive law (IV.). As
will become apparent in the following discussion, the objective of these particular
features of Art. R58 is to promote the uniform application and interpretation of the
relevant regulations and standards in international sports disputes, ensuring the
equal treatment of all parties that are subject to them.2

II LEGAL FRAMEWORK

The law applicable to the merits, or lex causae, must be distinguished from the law 2
governing the arbitral proceedings, or lex arbitri.3 CAS arbitrations are all seated in
Switzerland,4 which means that the Swiss lex arbitri (Chapter 12 of the PILS when
the arbitration is international, or Part 3 of the ZPO when the arbitration is domestic)
will govern the proceedings. However, this does not, per se, entail the application
of Swiss substantive law to the merits of CAS disputes, nor the application of the
conflict of laws rules that would be applied by the Swiss courts to determine the lex

1 The corresponding provision for CAS arbitrations governed by the ordinary procedure is Art.
R45.
2 As the sole arbitrator in put it in CAS 2014/A/3505, Al Khor SC v. C., Award of 3 December
2014, para. 85 (free translation): “sports is by essence a phenomenon that transcends national
frontiers. It is not only desirable, but in fact indispensable that the rules that govern sport at
an international level are of a uniform character and largely coherent worldwide. In order to
ensure their uniform application at an international level, such rules and regulations must not
be applied differently from one country to the other, in particular as a result of the interference
of national laws in sports regulations. The principle of the universal application of [international
sports regulations] arises from the requirements of rationality, legal security and predictability.
[… The objective of having uniform(ly applied) regulations is] to ensure the equal treatment
of all those who are subject to them, in whichever country they are”.
3 Cf. also Mavromati/Reeb, Art. R58, para. 76.
4 Cf. Art. R28.
 1678 Arbitration in Switzerland – The Practitioner’s Guide

causae. Arbitral tribunals, including CAS panels, determine the applicable substantive
law pursuant to methods which are specific to (international) arbitration.5 Hence,
Art. R58 of the CAS Code is to be read against the background of Art. 187 PILS (or
Art. 381 ZPO), the provision governing the selection of the applicable substantive
law in international (or domestic) arbitral proceedings seated in Switzerland. As
the vast majority of CAS appeals arbitrations are international, the brief discussion
in this commentary is limited to the situation under Art. 187 PILS.6
3 According to Art. 187(1) PILS, arbitral tribunals decide the disputes before them by
applying “the rules of law chosen by the parties or, in the absence [of such a choice],
according to the rules of law with which the case has the closest connection”.7 The
choice of law rule contained in Art. 187(1) PILS ab initio upholds the fundamental
principle of party autonomy in arbitration. Art. R58 and the specific conflict rules it
sets out can be seen as an expression of this principle: by submitting their disputes
to CAS (appeals) arbitration, the parties have agreed that the lex causae should be
determined as provided in the Code.8 However, as will be seen when examining Art.
R58’s contents more closely, the particularity of this provision vis-à-vis the overall
framework laid down in Art. 187 PILS is that it places specific constraints on both
the parties’ and the arbitrators’ autonomy in determining the applicable rules of law.
4 Before turning to the analysis of Art. R58’s conflict rules, it bears to note that, in
line with the standard approach for contractual and commercial matters in private
international law, CAS panels construe the parties’ choice (or the arbitrators’
determination) of the applicable law as referring solely to the corpus of substantive

5 Kaufmann-Kohler/Rigozzi, para. 7.04. On this point, cf. also, for instance, CAS 2006/A/1180,
Galatasaray SK v. Ribéry & Olympique Marseille, Award of 24 April 2007, para. 7.2; more
recently, CAS 2013/A/3274, Mads Glaesner v. FINA, Award of 31 January 2014, para. 56; cf.
also Mavromati/Reeb, Art. R58, para. 91.
6 For present purposes, we will merely provide an overview of the salient features of the regime
under Art. 187 PILS, to the extent these are useful for understanding the practice under Art.
R58 of the Code. The references made to arbitral case law in the following paragraphs will also
be limited to CAS awards. For a discussion covering the applicable law regime under the ZPO,
cf., e.g., Berger/Kellerhals, paras. 1371–1453.
7 Art. 187(2) states that “[t]he parties may authorize the arbitral tribunal to decide ex aequo et
bono”. The same possibility is expressly provided for in Art. R45 of the Code, governing the
law applicable to the merits in CAS ordinary proceedings, but is not replicated in Art. R58, for
appeals proceedings. It can hardly be contended that this should be otherwise, in light of the
fundamental principle that athletes across all sports are to be treated equally vis-à-vis sports-
governing bodies, particularly in disciplinary matters, which leaves little room for the more ad
hoc solutions that may be adopted in ex aequo et bono decisions. See however, Mavromati/
Reeb, Art. R58, para. 133 and the references given in para. 136, footnote 106 (CAS appeals
case law relating to FAT/BAT awards rendered ex aequo et bono, in accordance with the FAT/
BAT Rules). For a case where the sole arbitrator declined to rule ex aequo et bono, even though
the parties expressly authorized him to do so, on the ground that the option to do so is not
available under Art. R58, see CAS 2014/A/3836, Admir Aganovic v. Cvijan Milosevic, Award
of 28 September 2015, paras. 40–41 (where, instead, relying on the closest connection test, the
Arbitrator applied the FIFA Rules and Swiss law as the rules of law he deemed appropriate).
8 Cf., e.g., CAS 2014/A/3850, Branislav Krunic v. BIHFF, Award of 17 July 2015, para. 49; CAS
2013/A/3274, Mads Glaesner v. FINA, Award of 31 January 2014, para. 58; CAS 2008/A/1644,
Adrian Mutu v. Chelsea FC, Award of 31 July 2009, para. 10. See also Haas, ISLR 2016, pp. 10–11,
noting that in effect this means that the option foreseen in the second part of Art. 187(1) PILS
(the closest connection test) is never applied as such by CAS arbitrators, given that the parties
are always deemed to have made a choice of law, even if indirect.
Article R58 CAS Code – Rigozzi/Hasler 1679

norms, to the exclusion of the conflict rules (renvoi) of the designated law.9 In
addition, as is also generally admitted in private international law, including in
international arbitration, the parties can agree, or the arbitrators can determine, that
different laws shall apply to different aspects of a dispute (so-called depeçage),10 or,
a fortiori, that the parties’ choice of law only governs a limited part of the dispute.

III (LIMITED) PARTY AUTONOMY IN THE CHOICE OF THE

APPLICABLE LAW

As just seen, Art. 187 PILS primarily gives effect to the universally recognized private 5
international law principle of party autonomy with regard to the determination of
the applicable substantive law.
Under Swiss arbitration law, the parties are free to select, in the exercise of their 6
autonomy, not only a specific national law, but also a-national, international or
transnational substantive rules11 as the “law” governing the merits.12 This is evidenced
by the fact that the PILS speaks of “rules of law” in Art. 187(1).13 On the basis of this
same principle, it is accepted that the applicable substantive rules in sports disputes
may be contained in the bye-laws, statutes and regulations of the (international)
sports federations or other sports-governing bodies.14
The parties’ choice of law can be made at any time before or after a dispute has 7
arisen and is not subject to any specific requirements as to its form.15 What matters
is that the parties have made an actual choice, i.e., that they did agree, at some
point, on the selection of a given law or set of rules to govern their relationship.16

9 Cf. e.g., CAS 2005/A/983 & 984, Club Atlético Peñarol v. Bueno Suarez, Rodriguez Barrotti &
Paris Saint Germain, Award of 12 July 2006, para. 40. See also Mavromati/Reeb, Art. R58, para.
79. More generally, Kaufmann-Kohler/Rigozzi, para. 7.14.
10 Cf., for instance, CAS 2006/A/1082–1104, Valladolid v. Barreto Càceres & Cerro Porteño, Award
of 19 January 2007, para. 51. More recently, e.g., CAS 2015/A/3871 & 3882, Sergio Sebastiàn
Ariosa Moreira c. Club Olimpia & Club Olimpia c. Sergio Sebastiàn Ariosa Moreira, Award of
29 July 2015, para. 50. See also Mavromati/Reeb, Art. R58, paras. 118–119. Kaufmann-Kohler/
Rigozzi, para. 7.18.
11 Cf., for instance, CAS 2005/A/983 & 984, Club Atlético Peñarol v. Bueno Suarez, Rodriguez
Barrotti & Paris Saint Germain, Award of 12 July 2006, para. 84.
12 Such rules are reflected, for instance, in the UNIDROIT Principles of International Commercial
Contracts. Cf. Carbone, Lex mercatoria and lex sportiva, in: Greppi Edoardo/Vellano Michele
(eds.), Diritto internazionale dello sport, Torino: Giappichelli, 2010, p. 254, on the possible use
of the UNIDROIT Principles as an aid to interpretation in sports disputes.
13 The ZPO (Art. 381(1)) now also refers to “rules of law”.
14 Rigozzi, para. 1178. Ex multis, see CAS 92/98, Beeuwsaert v. FIBA, CAS Digest I, p. 287, 292;
CAS 2005/A/983 & 984, Club Atlético Peñarol v. Bueno Suarez, Rodriguez Barrotti & Paris Saint
Germain, Award of 12 July 2006, para. 64; CAS 2007/A/1395, WADA v. NSAM, Cheah, Ng &
Masitah, Award of 31 March 2008, para. 125. See also Mavromati/Reeb, Art. R58, para. 92,
with further references.
15 Kaufmann-Kohler/Rigozzi, paras. 7.24–7.29; Mavromati/Reeb, Art. R58, para. 94.
16 The validity of choice of law clauses is to be examined independently from that of the underlying
contract or other agreement between the parties, and is itself submitted to the legal regime
governing the formation of contracts. Cf., for instance, CAS 2006/A/1024, FC Metallurg Donetsk
v. Lerinc, Award of 31 January 2007, paras. 6.5–6.6. For a recent case where the Panel found
that a clause in an employment contract whereby only one of the parties undertook to “abide
by the rules and regulations of the Club and the Azerbaijan Federation together with the laws
and principles observed in the Azerbaijan” was not, in view of its unilateral nature, a choice
of law clause within the meaning of Art. R58, given that “a governing law clause is, by nature,
 1680 Arbitration in Switzerland – The Practitioner’s Guide

This choice can thus be tacit or implied,17 as, for instance, when the parties argue
their respective cases by reference to the same substantive law in the course of the
proceedings, without concluding an express choice of law agreement referring to
that law.18
8 The parties’ choice of the applicable law can also be made in an indirect manner,
that is, by reference not to a substantive law directly,19 but to a conflict rule or to a
set of arbitration rules which in turn contain provisions dealing with the law to be
applied by the tribunal in resolving the dispute.20 All the major sets of arbitration
rules contain provisions of this kind.21 Art. R58 itself is one such provision, although
it is rather more elaborate than most of its counterparts in commercial arbitration
rules, which merely restate the preeminence of the parties’ choice of law. In fact,
as the following paragraphs will show, Art. R58 is a relatively complex aggregate of
various choice of law mechanisms.22

A The Applicable Regulations

9 As just seen,23 the parties may choose non-national or transnational rules of law –
such as sports regulations – to govern their relationship. By providing that “[t]he
Panel shall decide the dispute according to the applicable regulations”, Art. R58 ab
initio encapsulates an indirect choice of law by the parties in favor of such rules.
CAS panels are bound by this choice of law, which applies mandatorily in appeals
arbitrations.24 This means that to resolve the disputes before them, they must always
apply, in the first place, the relevant sports regulations.

bilateral and reciprocal, as it shall express the parties’ choice as to what law shall govern the
Contract and apply to both parties”, see CAS 2015/A/3894, Khazar Lankaran Football Club v.
Eder Jose Oliveira Bonfim, Award of 26 August 2015, paras. 60–66.
17 Cf., e.g., CAS 2006/A/1082–1104, Valladolid v. Barreto Càceres & Cerro Porteño, Award of 19
January 2007, para. 49; CAS 2006/A/1024, FC Metallurg Donetsk v. Lerinc, Award of 31 January
2007, para. 6.5; CAS 2013/A/3444, SC FC Brasov SA v. Renato Ferreira Da Silva Alberto, Award
of 29 October 2015, para. 58.
18 Cf., e.g., CAS 2007/A/1395, WADA v. NSAM, Cheah, Ng & Masitah, Award of 31 March 2008,
para. 62; CAS 2014/A/3508, FC Lokomotiv v. Football Union of Russia, Award of 23 March 2015,
para. 144. A further illustration of the principle of party autonomy with respect to the selection
of the lex causae is that the parties are also free to agree to modify, at any time, a previously
concluded choice of law agreement. Cf., for instance, CAS 2006/A/1180, Galatasaray SK v.
Ribéry & Olympique Marseille, Award of 24 April 2007, paras. 7.7 and 7.10. See also Mavromati/
Reeb, Art. R58, para. 97.
19 Cf., e.g., CAS 2004/A/678, Apollon Kalamarias FC v. Morais, Award of 20 May 2005, para. 5.3
(noting that the disputed contract was specifically made subject to “Law 2725/99”, i.e., “Greek
sports law”).
20 Cf., e.g., CAS 2004/A/574, Associação Portuguesa de Desportos v. Club Valencia CF SAD, Award
of 15 September 2004, para. 42; CAS 2005/A/983–984, Club Atlético Peñarol v. Bueno Suarez,
Rodriguez Barrotti & Paris Saint Germain, Award of 12 July 2006, para. 78; CAS 2010/A/2187,
Calenda v. Sport Lisboa e Benfica Futebol, SAD, Award of 12 April 2011, para. 8.2 and the
references provided therein. See also Mavromati/Reeb, Art. R58, para. 93.
21 Cf., e.g., Art. 21 ICC Rules; Art. 33 Swiss Rules.
22 Rigozzi, para. 1195.
23 Cf. above, para. 6.
24 Cf., e.g., CAS 2014/A/3850, Branislav Krunic v. BIHFF, Award of 17 July 2015, para. 51. See also
Haas, ISLR 2016, pp. 11–13. Only a limited room for maneuver is left to the arbitrators, to the
extent they will have to determine what version of the relevant regulations applies in a given
case, which they will do by reference to the transitory provisions contained in the regulations
and/or the relevant principles in this regard (in particular, the tempus regit actum maxim); cf.,
Article R58 CAS Code – Rigozzi/Hasler 1681

Article R58 then makes it clear that CAS panels shall also apply “subsidiarily, […] 10
the rules of law chosen by the parties, or in the absence of such a choice, […] the
law of the country in which [the sports-body that issued the challenged decision] is
domiciled, or […] the rules of law the Panel deems appropriate”.25 Hence, under Art.
R58, the governing sports regulations shall apply together with at least another law
(or set of rules of law), which will come to bear on a subsidiary basis (irrespective
of whether it is chosen by the parties or selected by the panel in accordance with
the relevant rules of conflict). In other words, the indirect choice of the “applicable
regulations” contained in Art. R58 ab initio is only a partial choice of law and CAS
panels will have to determine what other (rules of) law, if any, apply to the merits
of a given dispute, as outlined below.26

B The Rules of Law Chosen by the Parties

As mentioned, the parties’ choice of law can be made in a direct or indirect manner.27 11
The choice is direct when the parties expressly submit their relationship to a given
law or other set of rules. Choices of this kind are frequently encountered in sports
arbitration, for instance in disputes arising out of employment contracts.28
On the other hand, the parties may be deemed to have made an indirect choice of 12
law when their contract refers (or is otherwise subject) to the applicable regulations
and these in turn contain a choice of law clause.29 The regulations of many inter-
national sports federations contain provisions of this kind. For instance, Art. 57(2)
of the FIFA Statutes provides that in resolving disputes between FIFA, members
associations, confederations, leagues, clubs, players, officials, intermediaries and

ex multis, CAS 2014/A/3652, KRC Genk v. LOSC Lille Métropole, Award of 5 June 2015, paras.
34–35; CAS 2014/A/3488, WADA v. Juha Lallukka, Award of 20 November 2014, para. 111;
CAS 2013/A/3398, FC Petrolul Ploiesti v. Aleksandar Stojmirovic, Award of 23 June 2014, para.
48; CAS 2011/A/2645, UCI v. Kolobnev and Russian Cycling Federation, Award of 29 February
2012, para. 12; CAS 2010/A/2041, Chepalova v. FIS, Award of 10 January 2010, paras. 65–69;
CAS 2005/A/983 & 984, Club Atlético Peñarol v. Bueno Suarez, Rodriguez Barrotti & Paris Saint
Germain, Award of 12 July 2006, paras. 86–91. As illustrated by some of the cases just cited,
where appropriate, and as discussed further below, CAS panels will also refer to the lex mitior
principle in determining the applicable rules of law (see the references in footnote 65 below).
25 Emphasis added. As also noted by Mavromati/Reeb Art. R58, para. 92, the adverb “subsidiarily”
was inserted in the 2013 version of the Code. The addition (which reflected the language used
in prior CAS case law, cf., e.g. CAS 2012/A/2699, Al-Birair v. CAF, Award of 20 December 2012,
para. 82) has clarified that in appeals proceedings the applicable regulations enjoy primacy
over the rules of law chosen by the parties or selected by the arbitrators.
26 Rigozzi, para. 1199. This does not exclude that the parties may choose, under Art. R58, that
their dispute shall be determined exclusively by reference to the relevant sports regulations
(cf., for instance, CAS 2007/A/1322, Giannini et al v. S.C. Fotebal Club 2005 S.A., Award of 15
April 2008, para. 8.2).
27 Cf. above para. 8.
28 Cf., among many others, CAS 2004/A/678, Apollon Kalamarias FC v. Morais, Award of 20 May
2005, paras. 5.1–5.4; CAS 2006/A/1180, Galatasaray SK v. Ribéry & Olympique Marseille, Award
of 24 April 2007, para. 7.8; CAS 2008/A/1644, Mutu v. Chelsea FC, Award of 31 July 2009,
para. 95; CAS 2013/A/3364, SC FC Steaua Bucuresti SA v. Cristiano Bergodi & FIFA, Award of
13 January 2015, paras. 74–76; CAS 2015/A/4094, Lassana Diarra v. FC Lokomotiv Moscow,
Award of 27 May 2016, para. 188.
29 Cf., ex multis, CAS 2004/A/791, Le Havre v. FIFA & Newcastle & N’Zgobia, Award of 27 October
2005, paras. 40–44.
 1682 Arbitration in Switzerland – The Practitioner’s Guide

licensed match agents, “CAS shall primarily apply the various regulations of FIFA
and, additionally, Swiss law”.30
13 This being so, difficulties may arise, when the parties have made both a direct
and an indirect choice of law in their agreement, if these choices differ. CAS case
law deviates on this point from the standard approach under Swiss international
arbitration law, which, in light of the overriding role of party autonomy under Art.
187(1) PILS, gives precedence to the express and direct choice made by the parties
over any indirect choice as may arise from their relationship.31 CAS appeals panels,
on the other hand, will follow Art. R58’s conflict rule, which, as just seen, invari-
ably places the relevant sports regulations (“the applicable regulations” including
any choice of law provisions they may contain) first, and the parties’ choice, even
if express and direct (“the rules of law chosen by the parties”), second and in a
subsidiary position vis-à-vis the applicable regulations. As some panels have put it,
Art. R58 establishes a hierarchy of norms in matters of substantive law.32
14 The question then is how to identify the respective scopes of application of the sports
regulations (which apply primarily, and may also – in turn – contain a choice of law)
and the rules of law (directly) chosen by the parties (which are to apply subsidiarily
to the former). Unsurprisingly, CAS case law is inconsistent in this respect.33 A recent
study by Prof. Haas offers a perceptive analysis of this question in relation to football
disputes, where it arises quite frequently. As just seen, Art. 57(2) FIFA Statutes
requires CAS panels to apply Swiss law “additionally” (in French, “à titre supplétif”)
to the relevant FIFA regulations. Where the parties have also directly chosen an
applicable law other than Swiss law (e.g. in a player’s employment contract), the
FIFA Statutes’ reference to Swiss law, which mandatorily applies in a dispute before
the CAS by the operation of Art. R58 ab initio, will effectively put the panel before
a case of dépeçage.34 Prof. Haas’s study discusses the criteria to determine which
law should apply to which question(s) in such a situation. In a nutshell, the study

30 See also, for instance, Art. 12.6.4 Tennis Antidoping Programme 2016, which provides that “[i]
n all appeals to CAS pursuant to this Article 12, the governing law shall be English law and the
appeal shall be conducted in English unless the parties agree otherwise”, and the IAAF Rules,
providing that in all CAS appeals involving the IAAF, the governing law shall be Monegasque
law (IAAF Competition Rules, Rule 42.24).
31 Cf. Haas, ISLR 2016, pp. 11–13. Cf. also, e.g., CAS 2015/A/4094, Lassana Diarra v. FC Lokomotiv
Moscow, Award of 27 May 2016, para. 189.
32 Cf., e.g., CAS 2014/A/3850, Branislav Krunic v. BIHFF, Award of 17 July 2015, para. 51; CAS
2013/A/3309, FC Dynamo Kyiv v. Gerson Alencar de Lima Junior & SC Braga, Award of 22
January 2015, para. 70. In other words, Art. R58 restricts the scope of party autonomy as far
as the choice of the applicable substantive law is concerned, given that the parties may not
oust the relevant sports regulations, but only complement them by choosing a law that will
apply subsidiarily to those regulations.
33 See the discussion in Haas, ISLR 2016, p. 13, with numerous references.
34 Note that, in addition, the relevant regulations may refer to yet another law, as is the case, for
instance, of Art. 17(1) RSTP, which requires the panel to calculate “compensation for the breach
[…] with due consideration for the law of the country concerned” (cf., e.g., CAS 2008/A/1644,
Adrian Mutu v. Chelsea FC, Award of 31 July 2009, paras. 17, 19 and 29–34), and Art. 25(6)
RSTP, which provides that “[…] when taking their decisions [the FIFA judicial bodies] shall
apply these regulations whilst taking into account all relevant arrangements, laws and/or col-
lective bargaining agreements that exist at national level […]”(emphasis added). For a recent
case considering the impact of the latter reference (in addition to the reference to Swiss law
in Art. 57(2) (then Art. 66(2)) FIFA Statutes), see CAS 2014/A/3652, KRC Genk v. LOSC Lille
Métropole, Award of 5 June 2015, paras. 36–40. On Art. 17(1) RSTP, see also para. 15 below.
Article R58 CAS Code – Rigozzi/Hasler 1683

suggests that Swiss law, being the law to which the governing FIFA Statutes refer,
should apply to all matters covered by the FIFA regulations – to the extent the latter
require interpretation or supplementation, or present a lacuna35 – whereas the (rules
of) law chosen by the parties should apply to all matters that do not come within
the purview of FIFA regulations.36 The rationale for this approach is that both the
CAS Code’s reference to the FIFA regulations (as the “applicable regulations” within
the meaning of Art. R58 ab initio) and those regulations’ reference to Swiss law
are meant to “ensure the uniform interpretation of the standards of the [football]
industry” – an objective that evidently does not apply to any matters not subject to
those same standards.37 For instance, the FIFA Regulations on the Status and Transfer
of Players (RSTP), the purpose of which is “to lay down global and binding rules
concerning the status of players, their eligibility to participate in organized football,
and their transfer between clubs belonging to different associations”,38 should be
applied and interpreted uniformly and consistently across the world of professional
football.39 On the other hand, issues that are specific only to the relevant parties’
relationship should be interpreted in accordance with the law chosen by them (i.e.,
in line with the principle of party autonomy).40 Hence, whether a contract has been
terminated with just cause, as well as the consequences of a termination without just
cause, both issues covered by the RSTP (in Arts. 14 and 17 respectively) should be
determined in accordance with those regulations and (“additionally”, to the extent
necessary) Swiss law.41 On the other hand, whether a contract has been validly
concluded,42 or invalidated (for instance on grounds of error, fraud, duress, etc.),
whether a given contractual requirement can be deemed satisfied,43 or the interest
rate that should apply to any damages awarded pursuant to Art. 17 RSTP,44 all issues

35 Cf., Mavromati/Reeb, Art. R58, paras. 100, 121–122. Cf. also, e.g., CAS 2014/A/3850, Branislav
Krunic v. BIHFF, Award of 17 July 2015, para. 51; CAS 2014/A/3864, AFC Astra v. Laionel da
Silva Ramalho & FIFA, Award of 31 July 2015, paras. 53 and 56; CAS 2015/A/4094, Lassana
Diarra v. FC Lokomotiv Moscow, Award of 27 May 2016, para. 192.
36 Haas, ISLR 2016, p. 14. In similar terms, cf. Mavromati/Reeb, Art. R58, para. 119. See also Del
Fabro (2016), p. 233.
37 Haas, ISLR 2016, p. 14.
38 Cf. Art. 1(1) RSTP (2016 Edition), available at <http://www.fifa.com/about-fifa/official-
documents/law-regulations/index.html#doctransfersreg>.
39 Cf., e.g., CAS 2014/A/3505, Al Khor SC v. C, Award of 3 December 2014.
40 Cf., e.g., CAS 2005/A/902 & CAS 2005/A/903, Mexès AS Roma v. AJ Auxerre; AJ Auxerre
v. Mexes & AS Roma, Award of 5 December 2005, paras. 12–16, and, more recently, CAS
2015/A/4094, Lassana Diarra v. FC Lokomotiv Moscow, Award of 27 May 2016, paras. 190–193;
CAS 2013/A/3647, Sporting Clube de Portugal SAD v. SASP OGC Nice Côte d’Azur & CAS
2013/A/3648, SASP OGC Nice Côte d’Azur v. Sporting Clube de Portugal & FIFA, Award of 11
May 2015, paras. 93–98.
41 Cf., e.g., CAS 2013/A/3398, FC Petrolul Ploiesti v. Aleksandar Stojmirovic, Award of 23 June
2014, paras. 55–61; CAS 2014/A/3527, FFK v. P., Award of 31 July 2015, paras. 64–74. CAS
2015/A/4094, Lassana Diarra v. FC Lokomotiv Moscow, Award of 27 May 2016, paras. 239–244.
42 Cf., e.g., CAS 2013/A/3309, FC Dynamo Kyiv v. Gerson Alencar de Lima Júnior & SC Braga,
Award of 22 January 2015, paras. 84–92; CAS 2015/A/4094, Lassana Diarra v. FC Lokomotiv
Moscow, Award of 27 May 2016, para. 238.
43 Haas, ISLR 2016, p. 15, referring to CAS 2013/A/3647, Sporting Clube de Portugal SAD v. SASP
OGC Nice Côte d’Azur & CAS 2013/A/3648, SASP OGC Nice Côte d’Azur v. Sporting Clube de
Portugal & FIFA, Award of 11 May 2015, paras. 113 et seq., at footnote 44.
44 Haas, ISLR 2016, p. 15, with several references at footnote 45, including CAS 2014/A/3864, AFC
Astra v. Laionel da Silva Ramalho & FIFA, Award of 31 July 2015, para. 105; 2014/A/3848, Award
of 31 July 2015, paras. 117 et seq; 2008/A/1519 & 1520, FC Shakhtar Donetsk v. Matuzalem
Francelino da Silva & Real Zaragoza SAD & FIFA; Matuzalem Francelino da Silva & Real Zaragoza
SAD v. FC Shakhtar Donetsk & FIFA, Award of 19 May 2009, paras. 182 et seq.
 1684 Arbitration in Switzerland – The Practitioner’s Guide

that are not regulated in the RSTP, should be determined in accordance with the
law (if any) chosen by the parties to govern the underlying contract.45
15 The bearing of the parties’ choice of law can also be limited by specific provisions
in the applicable regulations, as for instance Art. 17(1) RSTP, which provides that
the compensation due in case of termination without just cause “shall be calculated
with consideration for the law of the country concerned”. CAS panels are reluctant
to apply national laws in these cases. It is submitted that national laws other than
Swiss law should apply to matters covered by the RSTP only if their application is
required by an analogical application of Art. 19 PILS, i.e. if they set out mandatory
overriding rules.46 Other than in such cases, the application of different national laws
may be detrimental to the uniform application of the FIFA regulations.
16 Where the parties have not made a choice of law, Art. R58 (to which the parties have
referred in agreeing to submit their disputes to CAS) sets out further conflict rules
for the determination – by the arbitrators – of the law that is to apply subsidiarily,
in addition to the applicable sports regulations.

IV (RESIDUAL) POWER OF ARBITRATORS TO DETERMINE THE

APPLICABLE LAW

17 Article 187(1) PILS (like most arbitration laws) and the majority of arbitration rules
contain liberal conflict rules to determine the lex causae absent a choice by the
parties. Art. 187(1) PILS requires arbitrators to apply the rules of law that are most
closely connected to the dispute,47 whereas arbitration rules generally provide that
the tribunal shall apply the (rules of) law that it determines to be appropriate.48
18 Article R58 of the CAS Code is more restrictive than its counterparts in commercial
arbitration rules also when it comes to the authority of arbitrators to determine
the applicable law, given that it provides for a specific connecting factor to be used
by CAS panels where the parties have not made a choice, namely the country of
domicile of the sports-governing body that rendered the challenged decision (A.).
Moreover, while Art. R58 does also enable CAS panels to apply the rules of law

45 See the further examples mentioned by Haas, ISLR 2016, p. 15. For similar reasoning with
regard to disputes arising under the UEFA Club Licensing and Financial Fair Play Regulations,
cf., e.g., CAS 2013/A/3067, Málaga CF SAD v. UEFA, Award of 8 October 2013, paras. 9.1–9.7.
The same is true for issues that the RSTP do regulate, but subsidiarily, i.e. by providing that
any specific agreement between the parties will apply primarily (cf., e.g., CAS 2006/A/1082
& 1104, Real Valladolid c. Barreto Càceres & Cerro Porteño, Award of 19 January 2007, paras.
19–21, about the validity of a contractual indemnity clause in case of unilateral termination,
decided under the 2001 edition of the RSTP). Note also that when the parties have made a
choice of law in their contract, but fail to argue their case on the basis of the chosen (rules of)
law, the panel will not necessarily apply the latter. In light of the principles discussed above
(see para. 7 above), such conduct could be considered as an implied (subsequent) choice of
law by the parties: cf., e.g., CAS 2013/A/3089, FK Senika A.S. v. Vladimir Vukajlovic & FIFA,
Award of 30 August 2013, para. 52; CAS 2014/A/3858, Award of 5 August 2015, paras. 66–67;
CAS 2013/A/3398, FC Petrolul Ploiesti v. Aleksandar Stojmirovic, Award of 23 June 2014, para.
47.
46 See para. 31 below.
47 On the meaning of the closest connection test, see, e.g., Kaufmann-Kohler/Rigozzi, paras.
7.28–7.49.
48 Cf., e.g., Art. 35(1) UNCITRAL Rules; Art. 21(1) ICC Rules; Art. 22.3 LCIA Rules; Art. 22(1) SCC
Rules. By contrast, Art. 33(1) SRIA incorporates the closest connection test of Art. 187 PILS’s.
Article R58 CAS Code – Rigozzi/Hasler 1685

which they deem appropriate (in lieu of the law of the country of domicile of the
sports-governing body that issued the challenged decision), if they decide to do so,
they are required to provide reasons for their choice (B.).
These conflict rules apply to the determination by CAS arbitrators in appeals 19
proceedings of the (rules of) law that shall apply in addition (and subsidiarily) to
the applicable sports regulations where the parties have not chosen such (rules
of) law. As seen above, under Art. R58, the arbitrators are required to apply the
relevant regulations. The only “room for manoeuver” they have in that regard, is
with respect to the determination of the applicable version(s) of such regulations.49

A The Law of the Country in which the Sports-Governing Body which

Issued the Challenged Decision is Domiciled

When the parties have not chosen the rules of law to be applied (subsidiarily) to 20
the merits of their dispute, Art. R58 provides, as a first option, that CAS panels
shall apply the law of the seat of the federation or other sports-body that issued
the decision under challenge.50 This conflict rule again reflects both the fact that
Art. R58 regulates the determination of the applicable law in the context of appeals
proceedings – where there will necessarily be a “challenged decision” – and the
fundamental objective of promoting consistency in the solutions found to the
disputes that arise in that context, by applying the same law to the assessment of
all decisions originating from the same sports-governing body.
That said, as noted in the previous edition of this commentary, applying this con- 21
necting factor can be problematic in all those cases in which the national federation
or other national sports-body from which the decision under challenge emanates has
rendered that decision according to the rules of the relevant international federation.
For instance, CAS appeals proceedings regularly involve, as the respondent party,
a national federation which, in taking the challenged decision, acted by delegation
of the relevant international federation (e.g., the IAAF).51 This is so in particular
since the WADA Code has entered into force, as the latter provides for the shared
responsibility of international federations, national federations and other anti-doping
organizations with respect to doping controls, hearings and sanctions, whilst reserv-
ing the right for international federations to appeal against the decisions adopted by
national federations or anti-doping organizations.52 In these cases, strict adherence
to the conflict rule set out in Art. R58 may be prejudicial to the uniform application
of the international sports regulations at issue. This result is undesirable and, worse,
contrary to the athletes’ fundamental right to equal treatment in disciplinary cases
arising under the same (international) rules. CAS panels have on occasion considered
these cases to be “atypical” appeals proceedings, and on this basis have, albeit

49 See footnote 24 above.

50 Cf., e.g., CAS 2009/A/1545, Anderson, Colander Clark, Miles-Clark, Edwards, Gaines, Hen-
nagan & Richardson v. IOC, Award of 18 December 2009, para. 55; more recently, e.g., CAS
2014/A/3860, O. et consorts v. FIFA & CAS 2015/A/4023, E. et consorts v. FIFA, Award of 25
May 2016, paras. 78–79; CAS 2015/A/4021, LNFP v. FIFA, Award of 13 July 2016, para. 127.
51 As mentioned in the previous edition of this commentary (Rigozzi/Hasler (2013), at Art. R58,
para. 12), this used to be the case of the UCI as well. The situation has now changed, at least
for cases involving international level riders, given that, in January 2015, the UCI established
its own Anti-doping Tribunal (see <http://www.uci.ch/news/article/anti-doping-tribunal/>).
52 Cf. Arts. 7, 8, 13 and 15 WADC.
 1686 Arbitration in Switzerland – The Practitioner’s Guide

without saying it in so many words, simply circumvented the rule set out in Art.
R58, by applying only the relevant sports regulations, or (subsidiarily) the law of
the seat of the federation which had issued the applicable sports regulations (rather
than the law of the seat of the federation or other sports-governing body which had
issued the decision under challenge).53
22 In reality, the same result can also be achieved by considering that the law of the
seat of the international federation (the rules of which are applicable in case of
dispute) is more appropriate than the law of the seat of the national federation
(having issued the decision under appeal), as discussed in the following section.54

B The Rules of Law, the Application of which the Panel Deems

Appropriate

23 As a second option when the parties have not chosen the applicable rules of law,
Art. R58 allows CAS panels to apply, in addition to the applicable sports regulations
(and in lieu of the law of the domicile of the sports body that rendered the disputed
decision), the rules of law they deem appropriate.55 In other words, Art. R58 enables
CAS panels not to refer to the otherwise applicable (rules of) law when this would
produce inappropriate results. Here too, the rationale for the conflict rule is to
“immunize” sports disputes from the variances that may result from the application
of different domestic laws to cases that are subject to the same international rules.
24 To the extent Art. R58 at the end circumvents the precedence given by Art. 187(1)
PILS to the parties’ (direct or indirect) choice of law over the tribunal’s own deter-
mination, it is understandable that the drafters of the Code have required arbitrators
to give reasons for their decision on the appropriate applicable (rules of) law.56

53 Cf., e.g., CAS 2002/A/403 & 408, Pantani v. UCI & FCI v. UCI, Award of 12 March 2003, para.
45; CAS 2002/A/383, IAAF v. CBA & Dos Santos, Award of 27 January 2003, paras. 78–79; cf.
also Rigozzi, para. 1214. Note however that, in the recent Sharapova award, the athlete argued
that harmonization should lead to the application of Swiss law irrespective of the country in
which the international federation that took the decision (here the ITF, which is based in the
UK) has its seat. The Panel rejected the argument, noting simply that it had not been “directed
to any difference that could derive from the application of Swiss law instead of English law”
to the matters in dispute, and thus concluding that the question did not need to be “further
explored” (CAS 2016/A/4643, Maria Sharapova v. ITF, Award of 30 September 2016, paras.
70–73). That said, in at least another case involving a decision by the ITF, the Panel applied
Swiss law precisely by reference to the need to harmonize the interpretation of the ITF’s Anti-
doping Programme, incorporating the WADC, so that WADA’s rules would be applied uniformly
and consistently everywhere, rather than being “subject to the vagaries of myriad systems of
law throughout the world” (CAS 2006/A/1025, Mariano Puerta v. ITF, Award of 12 July 2006,
paras. 11–16).
54 Indeed, as explained in Mavromati/Reeb, Art. R58, para. 81, this was the rationale of the
addition of the last part of the first sentence of Art. R58 (“or according to the rules of law, the
application of which the Panel deems appropriate”) in 2003. This is what the sole arbitrator
did, e.g., in CAS 2014/A/3496, Anti-doping Autoriteit Nederland v. X, Award of 6 March 2015,
paras. 26–34, determining that Swiss law should apply subsidiarily to the relevant national
regulations (which stated they were to be in interpreted in light of the WADC and/or its Inter-
national Standards) “in order to preserve a certain level of conformity in CAS jurisprudence
regarding doping matters”.
55 Cf. Mavromati/Reeb, Art. R58, para. 134.
56 For examples of the reasons provided by panels for their decision to apply the law they deemed
appropriate to a particular case, cf., e.g., CAS 2014/A/3836, Admir Aganovic v. Cvijan Milosevic,
Award of 28 September 2015, para. 41, where the Sole Arbitrator decided that the application
Article R58 CAS Code – Rigozzi/Hasler 1687

The case law shows that panels have often used the margin of appreciation granted 25
to them by Art. R58 at the end to apply general principles of law or other trans-
national norms of different origins, a practice that has contributed to the emergence
of a consistent jurisprudence with regard to questions that arise frequently in
(international) sports disputes. The general principles that are regularly applied in
the CAS case law can be subdivided in three main categories,57 namely: (i) general
principles of law that are customarily applied in sports matters (e.g., the principles
of equal treatment;58 good faith/estoppel;59 legality60 and proportionality,61 as well
as maxims such as lex specialis derogat generali62); (ii) fundamental guarantees
and principles governing criminal procedure which may be applied by analogy in

of ex aequo et bono principles (as agreed by the parties during the hearing) would be inap-
propriate, given that there was no provision to that effect in Art. R58 (contrary to Art. R45 for
ordinary proceedings). Accordingly, the Sole Arbitrator applied the relevant FIFA regulations
and Swiss law (by virtue of the reference in (then) Art. 66(2) of the FIFA Statutes). As noted
by Mavromati/Reeb, Art. R58, para. 134, in CAS 2013/A/3250, Award of 25 February 2014,
the Panel decided to apply Belgian law (rather than Swiss law as the law of the seat of the
relevant federation), given that Belgian law had been applied before the federation’s judicial
bodies in the first instance. Conversely (and deploring the inherent contradiction of the FIFA
Rules governing the applicable law at different stages of the proceedings) the Panel in CAS
2014/A/3652, KRC Genk v. LOSC Lille Métropole held that it would be inappropriate for it not
to take into account the “relevant arrangements, laws and/or collective bargaining agreements
that exist at national level” pursuant to Art. 25(6) RSTP – which the DRC had failed to do
in the first instance – even if Art. 25(6) only applies to FIFA’s judicial bodies (including the
DRC) and not to the CAS. As the reason for its decision in this regard, the panel held that this
should be so in all cases where the application of the relevant national law is material for the
resolution of the case (“là où [l’]application [du droit national] est pertinente pour la résolution
du litige”, free translation, Award of 5 June 2015, paras. 37–40). In casu, the national law at
issue (Belgian law) affected the outcome of the case because it entailed that the player could
not be offered a work contract by his then club as he was still a minor at the relevant time. In
CAS 2015/A/4021, LNFP v. FIFA, Award of 13 July 2016, paras. 127–130, the Panel explained
that (beyond the applicable FIFA regulations and Swiss law as the law of the country where
FIFA is domiciled), considering the markets potentially affected by the challenged decision,
it would apply EU (but not Swiss) competition law to the dispute at hand. Similarly, cf. CAS
2009/A/1788, UMMC Ekaterinburg v. FIBA Europe e.V., Award of 29 October 2009, paras. 4–8.
57 Needless to say, the following is an over-simplified summary. For thorough analyses of the
issue, including extensive catalogues of the relevant legal principles, cf., for instance, Beloff,
Is there a lex sportiva?, in: ISLR 2005, pp. 49–60; Loquin, pp. 85–108, and Maisonneuve, paras.
905–941.
58 Including the principle that there is no equality in illegality, cf. CAS 2001/A/357, Nabokov v.
IIHF, Award of 31 January 2002, para. 26, CAS Digest III, p. 510.
59 Cf., among many others, CAS OG 02/006, NZOC v. SLOC, Award of 20 February 2002, para.
18, CAS Digest III, p. 609. Similarly, on the related principles of the protection of legitimate
expectations/ne venire contra factum proprium, cf., for instance, CAS 2008/O/1455, Boxing
Australia v. AIBA, Award of 16 April 2008, paras. 35–36.
60 Cf., among many others, CAS OG 98/002, Rebagliati v. IOC, CAS Digest I, p. 433; CAS 94/129,
USA Shooting & Quigley v. UIT, Award of 23 May 1995, passim; CAS OG 00/010, Tsagaev v.
IWF, Award of 25 September 2000, paras. 22–25.
61 Cf., among many others, CAS/2006/A/1025, Puerta v. ITF, Award of 12 July 2006, section
11.7. More recently, cf., e.g., CAS 2013/A/3264, Abderrahim Achchakir v. FIFA, Award of 19
November 2013, paras. 133-; CAS 2015/A/3920, FRMF v. CAF, Award of 17 November 2015,
para. 11.65–11.66.
62 Cf., among many others, CAS 2004/A/748, ROC, Ekimov v. IOC, USOC, Hamilton, Award of 27
June 2006, para. 106. More recently, cf., e.g., CAS 2013/A/3274, Mads Glasner v. FINA, Award
of 31 January 2014, paras. 77–79.
 1688 Arbitration in Switzerland – The Practitioner’s Guide

disciplinary proceedings (e.g., the principles nulla poena sine lege;63 nulla poena
sine culpa64 and lex mitior65), and (iii) general principles of sports law, including
anti-doping regulations (e.g., the principles of strict liability;66 judicial restraint vis-
à-vis field of play decisions;67 integrity and loyalty of competitions, and fair-play68).
26 Some scholars and CAS panels have referred to the body of general principles and rules
that has emerged from the case law referenced above as the so-called lex sportiva.69 A

63 Cf., among many others, CAS 94/129, USA Shooting & Quigley v. UIT, Award of 23 May 1995,
para. 34. More recently, cf., e.g., CAS 2015/A/3920, FRMF v. CAF, Award of 17 November 2015,
para. 11.64.
64 Cf., among many others, CAS 2001/A/317, Aanes v. FILA, Award of 9 July 2001, CAS Digest
III, p. 216, para. 26; CAS 2007/O/1381, RFEC & Valverde v. UCI, Award of 23 November 2007,
paras. 67–72. The principle has made the object of some reservations: in some non-doping
cases, reference was made to the fact that the variety of sanctioning measures which may be at
issue in sports disciplinary cases should not all be rigidly subjected to this principle, which is
meant to apply in the very specific context of criminal law. Cf., for instance, CAS 2008/A/1583
& 1584, Sport Lisboa e Benfica futebol SAD & al. v. UEFA & FC Porto, Award of 15 September
2008, paras. 10.3.2.2 and 10.3.3, with numerous references.
65 Cf., among many others, CAS 2014/A/3485, WADA v. Daria Goltsova & IWF, Award of 12
August 2014, paras. 18, 43 and 49; CAS 2012/A/2817, Fenerbahçe Spor Kulübü v. FIFA & Roberto
Carlos Da Silva Rocha, Award of 21 June 2013, passim; 2010/A/2308 & 2335, Pellizotti v. CONI
& UCI and UCI v. Pellizotti & FCI & CONI, Award of 14 June 2011, para. 30; CAS 2010/A/1817
& 1844, WADA & FIFA v. CFA & Marques, Medeiros, Eranosian et al. and FIFA v. CFA, Award
of 26 October 2010, para. 134; CAS 2004/O/679, USADA v. Bergman, Award of 13 April 2005,
para. 5.2.3; CAS 2000/A/289, UCI v. Chiotti et al., Award of 12 January 2001, CAS Digest II, p.
427, para. 7; CAS 96/149, A. Cullwick v. FINA, Award of 13 March 1997, CAS Digest I, p. 260,
para. 28.
66 Cf., among many others, CAS 95/141, Chagnaud v. FINA, Award of 22 April 1996, para. 13;
CAS 2002/O/373, COC & Scott v. IOC, Award of 18 December 2003, para. 14.
67 Cf., among many others, CAS 2004/A/704, Young & KOC v. FIG, Award of 21 October 2004,
para. 3.7; CAS OG 02/007, KOC v. ISU, Award of 23 February 2002, paras. 16–17.
68 In French, “équité sportive” (cf., for instance in CAS OG 00/004, COC & Kibunde v. AIBA,
Award of 18 September 2000, paras. 11–12), or, in the words of a commentator “sincérité des
compétitions” (Loquin et al., Tribunal arbitral du sport, Chronique des sentences arbitrales, JDI
2002, p. 344). Cf. also CAS 2004/A/708, Mexès & AS Roma v. SAOS AJ Auxerre Football (AJ
Auxerre) & FIFA, Award of 11 March 2005, passim, where reference was made to the objective
of safeguarding “la régularité des competitions et l’intégrité des championnats”, in determining
whether, in the silence of the relevant FIFA regulations, the so-called stability rule could be
applied in a specific situation. CAS jurisprudence has in fact extended the scope of application
of this same general principle beyond sports competition itself, by expressing the view that
the fair-play principle “is as pertinent to the disciplinary process as it is to competitive sport”,
with the consequence that sports-governing bodies are bound by the “elementary rules of
natural justice and due process” in their dealings with athletes in a disciplinary context (cf.
for instance, CAS OG 96/005, A., W. and L. V. NOC CV, Award of 1 August 1996, para. 7; CAS
2002/A/378, S. v. UCI & FCI, Award of 8 August 2002, paras. 19–20).
69 In reality, there appear to be different understandings among commentators as to what exactly
should be defined as the lex sportiva. For instance (and again, without any claim whatsoever
to exhaustiveness), according to some, the lex sportiva is nothing more than a collection of all
the rules and regulations that are issued by the different existing sports organizations, or, in
a slight variation to this definition, the compilation of all the rules, regardless of their source,
that govern sports activities (cf., e.g., Loquin et al., Tribunal arbitral du sport, chronique des
sentences arbitrales, Chronique JDI 2001, p. 266). Others consider that the lex sportiva simply
corresponds to the entire body of CAS jurisprudence (cf., e.g., Nafziger, p. 409). A third approach
in the literature can be considered (simplifying somewhat) as a combination of the previous
two, in that it sees the lex sportiva as the “transnational law of sports”, formed of the CAS case
law and the rules and regulations of transnational sports organizations (cf., e.g., Latty, La Lex
Sportiva – Recherche sur le droit du transnational, Leiden: Martinus Nijhoff, 2007, p. 46). Yet
another group of commentators, and much of the CAS case law that has addressed this topic,
Article R58 CAS Code – Rigozzi/Hasler 1689

short commentary such as this is not the right place to address the doctrinal debate
surrounding the lex sportiva as a legal, sociological or even philosophical phenomenon,
including the obvious analogies with its historical predecessor, the lex mercatoria.70
For present purposes, we would simply observe that, in their practice under Art.
R58, CAS panels will refer to the legal principles, maxims and jurisprudential rules
forming this so-called lex sportiva whenever they will deem their application to be
“appropriate”, in addition to, or instead of, the applicable sports regulations and/or
the chosen or designated (rules of) law, to decide a given case.

V OBJECT, SCOPE AND STATUS OF THE CHOSEN OR SELECTED

(RULES OF) LAW

The following aspects should also be borne in mind, whether the applicable (rules 27
of) law have been chosen by the parties or selected by the panel.
Naturally, the matters subject to the law applicable to the merits or substance of the 28
dispute within the meaning of Art. R58 (the lex causae) are substantive, as opposed
to procedural (procedural issues being governed by the lex arbitri). The question is
how to distinguish substantive matters from procedural ones. Generally speaking,
commentators consider that matters of substance are those which can influence
the outcome of the case (such as issues of standing, statutes of limitations, the
consequences of a breach of contract and the burden of proof),71 while procedural
issues pertain to the conduct of the case (e.g., time limits; the standard of proof;
issues of costs).72 Another generally held view is that, if in doubt, arbitrators should
characterize an issue as substantive rather than procedural.73
The scope of the applicable (rules of) law, be they selected by the parties or by the 29
arbitrators, is not unlimited as certain subject matters are reserved for the exclusive
regulatory competence of the state. To cite but one example that is relevant to sports
law, it is undisputed that the acquisition of the nationality of a particular State can
only be subject to the laws of that State. In other words, the parties have no right
to submit that issue to a different law of their choice.74

views the lex sportiva as the normative body constituted by the legal principles that emerge
from the interaction between the regulations enacted by the sports-governing bodies and the
relevant general principles drawn from the different national laws involved, as progressively
embodied in CAS jurisprudence. Cf., for instance, Loquin, and, among others, CAS 98/200,
AEK Athens & SK Slavia Prague v. UEFA, Award of 20 August 1999, para. 156). Finally, some
go as far as considering the lex sportiva as an autonomous transnational legal system (cf., e.g.,
Maisonneuve, paras. 1162–1170).
70 For comprehensive and detailed discussions, cf., among others, Beloff, Is there a lex sportiva?,
in: ISLR 2005, pp. 49–60; Nafziger, pp. 409–419; Haas, Die Vereinbarung von “Rechtsregeln” in
(Berufungs-) Schiedsverfahren vor dem Court of Arbitration für Sport, in: CaS 2007, pp. 271–280;
Latty, La Lex Sportiva – Recherche sur le droit du transnational, Leiden: Martinus Nijhoff,
2007; Loquin, pp. 85–108; and, more recently, Mitten/Opie, “Sports law”: implications for the
development of international, comparative, and national aw and global dispute resolution, CAS
Bull. 2012/1, pp. 2–13.
71 Cf. Mavromati/Reeb, Art. R58, para. 78; Haas, ISLR 2016, p. 14 in fine – 15 ab initio.
72 Cf. Mavromati/Reeb, Art. R58, para. 78.
73 Mavromati/Reeb, Art. R58, para. 78. This is in line with the prevailing approach in Switzerland,
cf., e.g., Berger/Kellerhals, para. 1372; Karrer, at Art. 187 PILS, para. 10 (note that this author
sets out a list of issues with his suggested characterization as substantive or procedural, ibid.,
paras. 10–11).
74 Rigozzi, para. 1171.
 1690 Arbitration in Switzerland – The Practitioner’s Guide

30 There may also be inherent limits to the scope of application (ratione personae, ratione
materiae or ratione temporis) of the designated law or set of rules that cannot be
disregarded. For instance, CAS panels have on various occasions refused to apply
the RSTP to disputes arising from contracts with coaches, even though the parties
had expressly referred to those regulations, as their scope of application does not
extend to coaches.75
31 Moreover, the application of any designated (rules of) law is limited by the overriding
effect of so-called mandatory laws (“Eingriffsnormen”; “lois de police” or “lois d’ap-
plication immédiate”).76 As discussed in more detail elsewhere, arbitral jurisprudence,
including that of the CAS, has tended to rely on the following criteria – expressed
with some variations in the terminology and in the emphasis put on one or the other
of the criteria – in determining whether mandatory rules (of a law other than the lex
causae) should be taken into consideration in any given case:77 (i) such rule[s] must
be meant to govern international situations such as that before the panel, i.e., must
“belong to that special category of norms which need to be applied irrespective of
the law applicable to the merit of the case”; (ii) there must be a close connection
between the subject matter of the dispute and the State from which the mandatory
rule[s] at issue emanate; (iii) the application of such rule[s] must not produce a result
that is contrary to transnational standards; in other words, the mandatory rule[s]
at issue should pursue a goal which is internationally, if not universally recognized
as legitimate.78 This reasoning has been applied by CAS panels, inter alia, to assess
arguments relying on EU competition law or free movement rights.79

75 CAS case law (cf. e.g., CAS 2008/A/1464 & 1467, Futebol Clube do Porto v. J.; J. v. Futebol Club
do Porto, Award of 3 December 2008, para. 24) has concluded that this is so given that Art. 1
defining the scope of the RSTP does not mention coaches, and the provision equating coaches
to players in the FIFA Statutes (then Art. 33(4)) has been removed from the Statutes as from
their 2008 version. See Mavromati/Reeb, Art. R58, para. 107 and the references. Cf. also CAS
2012/A/2906, Alain Geiger v. Egyptian Football Association (EFA) & Al Masry Club, Award of 12
February 2013, paras. 65–73. Similarly, some statutes purport to regulate only activities having
an effect within a specific territory and cannot be applied otherwise (cf., e.g., with regard to
the Swiss Federal Act on Cartels (LCart), CAS 2015/4021, LNFP v. FIFA, Award of 13 July 2016,
para. 128, and the example quoted in Mavromati/Reeb, Art. R58, para. 107, footnote 65). For
a different example, cf., e.g., CAS 2015/A/4304, Tatyana Andrianova v. ARAF, Award of 14
April 2016, para. 42, noting that the reference to Monegasque law contained in Art. 42.24 of
the ARAF’s ADR was not triggered in that case, given that the IAAF was not involved in the
proceedings (as required by that provision).
76 On this point, advocating the pre-eminence of the mandatory provisions of the lex causae over
the applicable sports regulations, see Del Fabro (2016), pp. 236–238.
77 Rigozzi, para. 1189. These criteria consist in an application by analogy of the test called for
under Art. 19 PILS. Cf. for instance, CAS 2005/A/983 & 984, Club Atlético Peñarol v. Bueno
Suarez, Rodriguez Barrotti & Paris Saint Germain, Award of 12 July 2006, para. 73. See also
Mavromati/Reeb, Art. R58, para. 113, with further references.
78 Rigozzi, para. 1190, in part referring to CAS 98/201, Celtic v. UEFA, Award of 7 January 2000,
para. 4; CAS Digest II, p. 111. Cf. also CAS 2007/A/1424, Federación Española de Bolos c. Fédéra-
tion Internationale des Quilleurs (FIQ) & Federació Catalana de Bitlles i Bowling (FCBB), Award
of 23 April 2008, paras. 52–56. Most recently, cf. CAS 2016/A/4492, G. v. UEFA, Award of 3
October 2016, paras. 41–45. See also Kaufmann-Kohler/Rigozzi, para. 7.95–7.99. As noted by
the panel in CAS 2013/A/3314, Villaréal CF SAD v. SS Lazio, Award of 7 March 2014, para. 42,
in Switzerland as elsewhere, “a provision of law which is not applicable as lex causae would
be considered mandatory and directly applied only in exceptional circumstances”.
79 Cf., e.g., CAS 98/200, AEK & PAE & SK Slavia Praha v. UEFA, Award of 20 August 1999, paras.
10–11; CAS 2007/A/1287, Danubio FC v. FIFA & Inter Milano, Award of 28 November 2007,
para. 17. See also Coccia, pp. 87–90, and Duval (2015), pp. 235–245.
Article R58 CAS Code – Rigozzi/Hasler 1691

Furthermore, it is widely recognized that arbitral tribunals sitting in Switzerland 32

must disregard any provisions in the parties’ chosen (rules of) law which, if applied,
would lead to a decision whose substance would be incompatible with international
public policy within the meaning of Art. 190(2)(e) PILS.80
In closing, it bears to recall that according to the Swiss Federal Supreme Court’s 33
case law, the principle jura novit curia, according to which the courts are deemed
to know the law or required to ascertain it of their own motion and to apply it ex
officio, also applies to arbitral tribunals.81 This means in particular that the parties
before arbitral tribunals sitting in Switzerland (as are CAS panels) are not expected
to prove the applicable law as a fact, but also that the arbitrators are not restricted
by the parties’ pleadings as to the content of the applicable (rules of) law.82
More generally, an error by the arbitrators in determining or applying the lex causae 34
is not per se a ground for the annulment of the award.83 The only (exceptional)
cases where the arbitrators’ determination as to the lex causae may open the
award to annulment is where it entails a violation of the parties’ right to be heard
(Art. 190(2)(d) PILS)84 or leads to a result that is incompatible with public policy
(Art. 190(2)(e) PILS).85

80 Cf. CAS 2005/A/983 & 984, Club Atlético Peñarol v. Bueno Suarez, Rodriguez Barrotti & Paris
Saint Germain, Award of 12 July 2006, para. 70; CAS 2006/A/1180, Galatasaray SK v. Ribéry &
Olympique Marseille, Award of 24 April 2007, paras. 7.3–7.4; CAS 2009/A/1926&1930, ITF v.
Gasquet; WADA v. ITF & Gasquet, Award of 17 December 2009, para. 3.5. See also Kaufmann-
Kohler/Rigozzi, para. 7.95–7.99; Mavromati/Reeb, Art. R58, para. 108.
81 For a comprehensive overview of the Supreme Court case law on jura novit curia (including the
exceptions that apply to this rule), cf. Arroyo, above commentary on Art. 190 PILS (Chapter 2,
Part II), paras. 144–159. See also, e.g., BGer. 4P.260/2000 para. 5b. Further, cf. CAS 2006/A/1043,
Hetzel v. FEI, Award of 28 July 2006, para. 5.2. Note however that the jura novit curia principle
is not violated if the tribunal requires the parties to participate in establishing the contents of
the applicable law or requests expert opinions in that regard (cf., e.g., BGer. 4P.242/2004 para.
7.3).
82 Cf. Arroyo, above commentary on Art. 190 PILS (Chapter 2, Part II), paras. 144–145. As
previously mentioned, this principle should induce CAS arbitrators to avoid an over-formalistic
interpretation of Art. R56 in as far as legal arguments are concerned (cf. Art. R56, para. 2
above).
83 See also Mavromati/Reeb, Art. R58, paras. 137–141. See also, e.g., Kaufmann-Kohler/Rigozzi,
para. 7.86.
84 For this ground to be upheld, the challenging party must establish that the tribunal based its
decision on (a) rule(s) of law the parties did not refer to and the relevance of which they could
not reasonably foresee (cf., e.g., BGer. 4A_400/2008, relating to a CAS appeals award). Cf.
Kaufmann-Kohler/Rigozzi, paras. 8.183–8.184.
85 For instance, the Supreme Court has held that the fact that the tribunal engaged in a mistaken
or even arbitrary application of the law is not a breach of public policy within the meaning of
Art. 190(2)(e) PILS (cf., e.g., BGer. 4A_14/2012 para. 5.2.1; BGer 4A_654/2011 para. 4.2, with
further references). See also Berger/Kellerhals, para. 1400; Kaufmann-Kohler/Rigozzi, paras.
7.86 and 8.202.
 1692

Article R59: Award

The award shall be rendered by a majority decision, or in the absence of a majority,

by the President alone. It shall be written, dated and signed. The award shall state
brief reasons. The sole signature of the President of the Panel or the signatures of
the two co-arbitrators, if the President does not sign, shall suffice.
Before the award is signed, it shall be transmitted to the CAS Secretary General
who may make rectifications of pure form and may also draw the attention of the
Panel to fundamental issues of principle. Dissenting opinions are not recognized
by CAS and are not notified.
The Panel may decide to communicate the operative part of the award to the parties,
prior to the reasons. The award shall be enforceable from such notification of the
operative part by courier, facsimile and/or electronic mail.
The award, notified by the CAS Court Office, shall be final and binding upon the
parties. It may not be challenged by way of an action for setting aside to the extent
that the parties have no domicile, habitual residence, or business establishment in
Switzerland and that they have expressly excluded all setting aside proceedings
in the arbitration agreement or in an agreement entered into subsequently, in
particular at the outset of the arbitration.
The operative part of the award shall be communicated to the parties within three
months after the transfer of the file to the Panel. Such time limit may be extended
by the President of the Appeals Arbitration Division upon a reasoned request from
the President of the Panel.
A copy of the operative part of the award, if any, and of the full award shall be
communicated to the authority or sports body which has rendered the challenged
decision, if that body is not a party to the proceedings.
The award, a summary and/or a press release setting forth the results of the
proceedings shall be made public by CAS, unless both parties agree that they
should remain confidential. In any event, the other elements of the case record
shall remain confidential.

I PURPOSE OF THE PROVISION

1 Article R59 of the CAS Code regulates the main issues related to the award in appeals
proceedings,1 namely (II.) the arbitrators’ decision-making process, (III.) the form
and contents of the award, (IV.) its ‘scrutiny’ by the CAS, (V.) its notification to
the parties and (VI.) its effect, as well as (VII.) the CAS’s policy with regard to the
publicity of awards and/or the outcome of the proceedings.

1 Art. R59 applies to all types of awards rendered by the CAS in appeals proceedings, be they
partial awards, interim or interlocutory awards (e.g., awards on jurisdiction), and additional
awards (cf. Art. R63 below).
Article R59 CAS Code – Rigozzi/Hasler 1693

II THE ARBITRATORS’ DECISION-MAKING PROCESS

Article R59(1) governs the arbitrators’ vote on the decision(s) embodied in the 2
award. It does not deal with the arbitrators’ deliberations, which are a distinct
component of the arbitral decision-making process.2 The arbitrators’ deliberations
are “the exchange[s] of views on the claims or questions submitted to them by
the parties which lead to the decisions of the arbitral tribunal”.3 The principle of
collegiality, which always governs the activities of an arbitral tribunal, commands
that all arbitrators must participate not only in the final vote on a decision but
also in the deliberations preceding such vote. In accordance with this principle,
each arbitrator is to be given an (adequate) opportunity to express his or her own
opinion on the issues to be decided and to state his or her position with respect
to his or her co-arbitrators’ opinions on those same issues.4 The requirement that
deliberations must take place is an integral part of the parties’ right to be heard and
both a right and a duty of the arbitrators, resulting from their status as members of
a collegiate tribunal. If the tribunal’s deliberations fail to afford one of the arbitra-
tors the opportunity to state his or her views on all the issues to be decided, the
resulting award is open to annulment.5 The rationale but also the limit of this rule
is that each of the panel’s members must be given the same opportunity as his or
her fellow arbitrators to participate in the decision-making process. This also means
that an arbitrator who deliberately refuses to participate in the deliberations cannot,
by doing so, obstruct the panel’s progress towards a (majority) decision,6 let alone
expose the award to annulment.
Article R59(1) provides that (in cases heard by three-member panels) CAS awards 3
can be rendered by majority decision, or, where a majority cannot be found, by
the President of the panel alone. In line with the analogous provisions contained in
practically all arbitration rules, this latter possibility is meant to avoid deadlocks
in the decision-making process, without obliging the President to adhere to the
position of one or the other of his or her co-arbitrators, even if he or she does not
agree with it, just so as to achieve a majority in the vote. Thus, the President of
the panel plays a pivotal role in the making of the award. The significance of this
role is accentuated in CAS appeals proceedings as the President is appointed by the
arbitral institution, with no influence whatsoever by the parties.7
More than the principle of the majority vote itself, the manner in which an absence 4
of unanimity within the panel may transpire in the award calls for some observa-
tions. Art. R59(2) at the end expressly provides that dissenting opinions “are not
recognized by CAS and are not notified”.8 This does not preclude an arbitrator from

2 Cf. BGE 111 Ia 336 para. 3.a.

3 Poudret/Besson, para. 732, p. 649.
4 Poudret/Besson, para. 734, p. 650; Kaufmann–Kohler/Rigozzi, para. 7.118.
5 Cf. Rigozzi, para. 999, and the references provided therein; Kaufmann–Kohler/Rigozzi, para.
7.117.
6 Cf. BGE 128 III 234 para. 3.b)aa). Cf. also Mavromati/Reeb, Art. R46, para. 19; Kaufmann-Kohler/
Rigozzi, para. 7.118.
7 Cf. Art. R54, paras. 5–6 above.
8 This provision was inserted with the 2010 revision of the CAS Code to codify the CAS’s consistent
practice in this respect, cf. Reeb, Modifications essentielles, p. 7. According to Mavromati/Reeb,
Art. R46, para. 23, “if a dissenting opinion […] is filed with the CAS Court Office, it is sent back
to its author and is neither notified to the parties nor included in the file”.
 1694 Arbitration in Switzerland – The Practitioner’s Guide

drafting a dissenting opinion and communicating it to the parties directly. If the

dissenting opinion is motivated by the fundamental need to express the dissenter’s
inability to adhere to a reasoning or a decision he or she cannot approve of, or a
genuine disagreement on matters of principle that could not be expressed in the
award itself, it is submitted that the CAS should tolerate the communication of
the opinion and refrain from taking any measures pursuant to Art. S19.9 In most
cases, CAS awards do not mention whether the decisions they contain were taken
unanimously or only by a majority of the panel.10 That said, when an arbitrator is
really uncomfortable with one (or more) section(s) of the award, he or she will be
allowed to request that the relevant passage(s) specifically mention(s) the fact that
the decision(s) set out therein was (were) taken by “the majority of the panel”.11
Conversely, in some cases, the panel might also want to indicate expressly in the
award that some important decision(s) was (were) made unanimously, in order to
underscore the strength of its members’ conviction and adhesion to the solution(s)
adopted.12

III FORM AND CONTENTS OF THE AWARD

5 Article R59(1) states that the award “shall be written, dated and signed”. Neither
the CAS Code nor the PILS13 contain any other mandatory requirements with
respect to the contents of the award. This notwithstanding, the CAS makes sure
that its awards always contain, in addition to the date of the award and (at least)
the required signature(s), also the other elements that are essential to the award’s
correct understanding and enforcement, in particular the parties’ and the tribunal
members’ names, the seat of the arbitration, the object of the dispute and the
arbitrators’ decision(s) with respect to such object.14

9 Art. S19 provides that “CAS arbitrators and mediators are bound by the duty of confidentiality,
which is provided for in the Code and in particular shall not disclose to any third party any
facts or other information relating to proceedings conducted before CAS. ICAS may remove an
arbitrator or a mediator from the list of CAS members, temporarily or permanently, if he violates
any rule of this Code or if his action affects the reputation of ICAS/CAS”.
10 Given the principle of the secrecy of deliberations (Supreme Court Decision of 12 November
1991, para. 1b/bb), it is thus impossible to know whether all members of the panel agreed or
not. This notwithstanding, Mavromati/Reeb indicate, at Art. R46, para. 22, that “[i]n the vast
majority of CAS awards rendered by a three-member Panel, the decision is taken unanimously”.
11 Cf., for instance, CAS 2005/A/726, Calle Williams v. IOC, Award of 19 October 2005, para. 2.5.2,
stating that “[w]hile the Panel’s findings up to this point are unanimous, only a majority of the
arbitrators is not “comfortably satisfied” that [the substance at issue] is a prohibited substance
under the applicable rules”. More recently, see, e.g., CAS 2011/A/2325, UCI v. Paulissen & RLVB,
Award of 23 December 2011, para. 195, and CAS 2014/A/3630, Dirk de Ridder v. ISAF, Award
of 8 December 2014, paras. 123 and 133. On this point, see also Mavromati/Reeb, Art. R46,
para. 23. The dissenting arbitrator cannot require that the award also indicate that the dissent
was his or hers. If being identified as the dissenting arbitrator is an important issue for the
arbitrator in question, then he or she will have no other choice but to issue and notify to the
parties a (separate) dissenting opinion.
12 Cf., e.g., CAS 2011/A/2433, Diakite v. FIFA, Award of 8 March 2012, para. 159.
13 For a commentary on Art. 189 PILS (“The Arbitral Award”), see Molina, Chapter 2 (Part II)
above.
14 Cf. Rigozzi, para. 1009, Poudret/Besson para. 745, p. 665.
Article R59 CAS Code – Rigozzi/Hasler 1695

The signature is an essential element of the award.15 Since the 2013 Code revision, 6
Art. R59(1) specifies that while (consistent with Art. 189(2) PILS) the signature
of the President will suffice, where the President does not sign, the award can
be issued bearing only the signatures of the two co-arbitrators. Thus, Art. R59(1)
implicitly acknowledges the right of a dissenting arbitrator (whatever his role within
the panel) not to sign an award with which he or she disagrees. That said, one
should not automatically conclude that an award bearing only the President’s or
the co-arbitrators’ signature(s) is the result of a majority decision.16 In fact, when
CAS awards are signed only by the panel’s President this will be, more often than
not, for merely practical reasons, in particular to avoid delays in dispatching the
decision to the parties.17
The date of the award is the date of the last signature or of signature by the President,18 7
and it normally corresponds to the date on which the award is communicated by
courier and/or fax and/or e-mail to the parties.19 When the dispositive part of the
award was communicated to the parties prior to the reasons,20 the reasoned version
of the award should mention the first date as the date of the award, but panels
generally indicate both dates.21
As far as the contents of the award are concerned, Art. R59(1) provides that it 8
“shall state brief reasons”, thus ruling out the possibility given under Swiss law for
tribunals to render unreasoned awards (if so agreed by the parties).22 In practice,
the reasoning of CAS awards is often quite detailed. That said, reflecting the fact
that CAS arbitrators originate from more than fifty countries and thus belong to
different legal cultures and traditions, the drafting style of the awards – beyond the
basic “standard” structure comprising (i) a factual part, (ii) a section devoted to the
legal analysis, and (iii) a part setting out the operative decision – still appears to

15 Poudret/Besson, para. 745. That said, as noted by those same authors, the PILS does not
provide for the annulment of the award based on a failure to observe requirements as to its
form, including the signature requirement (Id., para. 644, p. 664). Nevertheless, where the
absence of (at least the president’s) signature indicates that the deliberations were conducted
in an irregular manner, that may lead to the award’s annulment pursuant to Art. 190(2)(a)
PILS.
16 However, the situation where only the two co-arbitrators sign an award which has been made
unanimously is bound to be rare. One may thus surmise that this possibility has been expressly
envisaged in the 2013 version of Art. R59(1) as a clarification of the fact that such an alternative
is available, perhaps in reaction to cases where the President had refused to sign an award
because he or she disagreed with its contents.
17 According to Mavromati/Reeb, Art. R46, para. 5 “in case of extreme urgency and in order to
notify the award on time, it seems acceptable to have the operative part of the award signed
exceptionally by the CAS Secretary General on behalf of the Panel, provided that the award signed
by the President of the Panel be sent shortly thereafter.” This practice, which is questionable
as a matter of principle, should be followed only when the President of the Panel is unable to
sign in time after scrutiny, for instance because this would require him or her to take a long
distance flight.
18 Cf. Mavromati/Reeb, Art. R46, para. 7.
19 Cf. para. 16 below.
20 Cf. para. 13 below.
21 Cf., for instance, CAS 2011/A/2495/2496/2497/2498, FINA v. Cielo Filho et al. & CBDA, Award
of 29 July 2011 at the end (operative part issued on 21 July 2011). More recently, e.g., CAS
2015/A/4129, Demir Demirev et al. v. IWF, Award of 6 October 2015 (operative part issued on
25 August 2015). See also Mavromati/Reeb, Art. R46, paras. 6–7. As to the date that triggers
the time limit to file an action to set aside, cf. para. 14 below.
22 Cf. Arroyo, above commentary on Art. 190 PILS (Chapter 2, Part II), paras. 77 and 99.
 1696 Arbitration in Switzerland – The Practitioner’s Guide

be rather heterogeneous.23 In practice, CAS awards systematically contain a section

summarizing the procedural history and a comprehensive discussion of the argu-
ments raised by the parties. Although neither of these requirements is mandatory
at law, both contribute to reinforcing the parties’ confidence in the system. They
also facilitate the understanding (and acceptance) of awards, and participate in
generating a consistent corpus of jurisprudence, in particular in disciplinary cases.24
9 The actual drafting of the award may be done entirely by the President of the panel
or shared between its members. Quite often, the CAS Counsel in charge of the case
or the ad hoc clerk, when one is appointed,25 will provide substantial assistance to
the panel in this respect.

IV SCRUTINY

10 According to Art. R59(2), “[b]efore the award is signed, it shall be transmitted to

the CAS Secretary General who may make rectifications of pure form and may also
draw the attention of the Panel to fundamental issues of principle”. In a case where
he was called as a witness, the Secretary General has explained that “his intervention
[…] only relates to matters of pure form (clerical mistakes, standardization of style
with other CAS awards, etc.) and that he might draw the Panel’s attention to CAS
case law when the award to be rendered is manifestly not in line with such case
law” but that “his advice is not binding on the arbitrators”.26
11 This practice is certainly sensible to the extent that it promotes consistency in the
case law.27 However, it is submitted that it would be preferable for the CAS Court
Office (or the CAS Counsel in charge of the case) to draw the arbitrators’ attention
to any relevant (unpublished) decisions already in the course of the proceedings,28
so that the parties can be invited to comment on such decisions. It is undeniably
disconcerting to find, in an award, references to “precedents” whose very existence
was hitherto unknown to the parties (or at least one of them).
12 In any event, the CAS Secretary General shall not intervene in the arbitrators’
deliberations. The Secretary General should thus systematically make it clear for the
arbitrators, in particular those who are less experienced, that his advice is not binding
on the panel. It is understood that the Secretary General’s scrutiny is particularly
thorough with respect to the costs of the arbitration, including the award of legal
costs, to ensure that the CAS policy in this respect29 is followed.

23 In particular, the difference between the “continental” (civil law) style, which tends to remain
relatively impersonal, and the common law style, with its direct, more personal discourse, is
still quite perceptible in the awards issued by the CAS.
24 Cf. Rigozzi, paras. 1013–1014, with the references.
25 Cf. Art. R54(4).
26 CAS 2011/O/2574, UEFA v. Olympique des Alpes SA/FC Sion, Award of 31 January 2012, para.
120. On this issue, cf. also BGer. 4A_612/2009 para. 3.3. See, further, Mavromati/Reeb, Art.
R46, paras. 25–26, describing the “standard process for the review of CAS awards” by the CAS
Secretary General.
27 Rigozzi, paras. 1260–1268.
28 Rigozzi, para. 1269.
29 Cf. Arts. R64 and R65 below.
Article R59 CAS Code – Rigozzi/Hasler 1697

V NOTIFICATION AND COMMUNICATION

Article R59(3) provides that “[t]he Panel may decide to communicate the operative 13
part of the award to the parties, prior to the reasons”. It is submitted that this pos-
sibility should be used only in exceptional circumstances, when the parties need
certainty as to their legal position without delay, and the panel is not in a position to
issue at least “brief reasons”. Indeed, experience shows that it is during the drafting
process that the arbitrators might realize that their initial decision is not necessarily
legally justifiable or that the operative part should at least be nuanced.30
While the second sentence of Art. R59(3) provides that the award is immediately 14
enforceable (i.e., upon communication of its operative part), the time limit to file
an action to set aside before the Swiss Federal Supreme Court can only start to run
with the notification of the complete award.31 This however does not prevent a party
from initiating setting aside proceedings as soon as it receives the operative part,
for the purpose of requesting a stay of the award.32
Article R59(5) provides that “[t]he operative part of the award shall be communicated 15
to the parties within three months after the transfer of the file to the Panel”.33 In
practice, the Code-prescribed time limit to communicate the award is very rarely
met, and Art. R59(5) enables the CAS to deal with this by adding that “such time
limit 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 generally extended sua sponte by the CAS along the lines of, for instance,
the practice of the ICC Court.34 Experience shows that the time limit may even be
formally extended after it has already elapsed. In itself, this is unproblematic since,
as a matter of Swiss law, the time limits set in arbitration rules are indicative and
procedural in nature (so-called “délais d’ordre”), meaning that their expiry does not
affect the validity of the arbitral proceedings or give rise to a ground for challenging
the award.35
According to Art. R59(4) the award is “notified by the CAS Court Office”. In practice 16
the CAS first communicates the award by fax (or, increasingly, by email)36 with a cover

30 See also Mavromati/Reeb, Art. R46, para. 15.

31 Cf. Arroyo, above commentary on Art. 191 PILS (Chapter 2), paras. 39–40.
32 Rigozzi, JIDS 2010, p. 225. See also Kaufmann-Kohler/Rigozzi, para. 8.98. By contrast, the
enforcement courts will likely require the filing of at least the signed original version of the
dispositive part of the award (see Art. IV(1)(a) NYC)). See also para. 16 below.
33 Cf. Art. R54(3). Prior to the 2010 revision of the Code, Art. R59 provided that the award was
to be rendered within four months from the filing of the statement of appeal. As explained by
Reeb, Modifications essentielles, p. 7: the 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 also
Mavromati/Reeb, Art. R59, paras. 74–75.
34 Cf. below commentary on Art. 30 ICC Rules (Chapter 17, Part II), paras. 9–14.
35 Kaufmann-Kohler/Rigozzi, para. 7.170. Cf. also BGer. 4P.196/2003 para. 5. That said, it may
be advisable for the CAS to ensure that its awards contain an indication of the fact that the
original time limit has been duly extended, in particular for enforcement purposes, in cases
where the award is issued much later than the expiry of the said time limit.
36 Cf. Art. R31(2) above, providing that “arbitration awards, orders and other decisions made by
CAS and the Panel shall be notified by courier and/or by facsimile and/or by electronic mail
 1698 Arbitration in Switzerland – The Practitioner’s Guide

letter indicating to the parties that they “will receive an original copy of the award
in due course”. While the award becomes binding for each party upon receipt of its
faxed/emailed version, it is the date of receipt of the signed original that constitutes
the starting point of the 30-day time limit for bringing setting aside proceedings
before the Swiss Federal Supreme Court and for the award’s enforceability.37 This
has now been clarified in the Code itself, with an amendment introduced in Art.
R59(4) (and Art. R46(3)) in 2016, specifying that “recourse [against the award] is
available […] pursuant to Swiss Law within 30 days from the notification of the
original award” (emphasis added).
17 The latest revision of the Code, in 2017, has seen the addition of a new paragraph
to Art. R59, which provides that “a copy of the operative part of the award, if any,
and of the full award shall be communicated to the authority or sports body which
has rendered the challenged decision, if that body is not a party to the proceedings”
(Art. R59(6)).

VI EFFECT OF THE AWARD

18 Article R59(4) provides that the award shall be final and binding upon the parties.
According to Art. 190(1) PILS, “the award shall be final when communicated”. Hence,
a CAS award will have res judicata effect and shall be binding upon the parties as
soon as its operative part is communicated to them (by courier and/or fax and/or
e-mail, in accordance with Art. R31). Once the original, signed version is notified,
the award can be immediately enforced in Switzerland and abroad, unless the Swiss
Supreme Court grants an order to stay the award pending setting aside proceedings.38
19 Article R59(4) also states that the award “may not be challenged by way of an
action for setting aside to the extent that the parties have no domicile, habitual
residence, or business establishment in Switzerland and that they have expressly
excluded all setting aside proceedings in the arbitration agreement or in an agree-
ment entered into subsequently, in particular at the outset of the arbitration”. This
provision merely restates Art. 192(1) PILS. Hence, to be valid, a waiver agreement
of this kind must meet the requirements set out in the Swiss Federal Supreme Court’s
case law relating to Art. 192(1) PILS,39 according to which the waiver must be in
express terms and “indisputably manifest” the parties’ “common intention to waive
all future setting aside proceedings”.40 Similar waivers contained in the regulations

but at least in a form permitting proof of receipt”.

37 Indeed, according to the Swiss Federal Supreme Court (cf. BGer. 4A_392/2010 para. 2.3; BGer.
4A_604/2010 para. 1.3), the faxed (or e-mailed) award cannot be considered as “signed” and
validly notified within the meaning of Art. R59. As mentioned (footnote 32 above), the faxed
(or e-mailed) version of the award will also not meet the requirements of Art. IV NYC.
38 Cf. Arroyo, above commentary on Art. 191 PILS (Chapter 2, Part II), para. 59; cf. also footnote
32 above. On the grounds and proceedings for annulment of awards before the Swiss Supreme
Court, see in particular Arroyo, above commentaries on Art. 190 and 191 PILS and Kaufmann-
Kohler/Rigozzi, paras. 8.01–8.205. See also Mavromati/Reeb, Art. R46, paras. 12–69.
39 Cf. BGer. 4P.62/2004 para. 1.2 at the end; BGE 131 III 173 para. 4.2. For a recent analysis of the
requirements for a valid waiver under Art. 192(1) PILS, see Kaufmann-Kohler/Rigozzi, paras.
8.49–8.75.
40 English translation of the topical passage in BGE 131 III 173 para. 4.2.3.1 as set out in BGE 133
III 235 para. 4.3.1; Swiss Int’l Arb.L.Rep. 2007, p. 80. More recently, see, e.g., BGer. 4A_93/2013
para. 3. For a discussion on the requirement for an express agreement and the ineffectiveness
of indirect waivers, cf. Kaufmann-Kohler/Rigozzi, paras. 8.56–8.59.
Article R59 CAS Code – Rigozzi/Hasler 1699

of a sports-governing body or in the entry forms that have to be signed in order to

participate in a competition are, according to the Supreme Court, unenforceable with
respect to challenges against CAS awards rendered in appeals proceedings opposing
the sports-governing body to an athlete or club.41

VII PUBLICITY OF THE AWARD

According to Art. R59(7), the “award, a summary and/or a press release setting 20
forth the results of the proceedings shall be made public by CAS, unless both parties
agree that they should remain confidential”.42 Unless the parties have agreed to keep
the award confidential, the award is public irrespective of any ‘official’ publication
by the CAS.
In practice, the CAS will ask the parties, in the cover letter accompanying the faxed 21
(or emailed)43 version of the award, to confirm that the award can be published. It is
very unlikely that the winning party will agree to confidentiality as it will, naturally,
wish to capitalize on the publication of the decision.44 When the award contains
sensitive and/or personal information, the CAS will specifically ask the parties
whether they “consider that any of the information contained in the award should
remain confidential”, informing them that, if such should be the case, “they should
send a request, with grounds, to the CAS” within a given time limit, “in order that
such information could potentially be removed, to the extent such removal does
not affect the comprehension of the decision”.45 If a party can show good reasons to
have certain information or portions of the award redacted, it is submitted that the
CAS need not have the agreement of all the parties in order to do so.
While Art. R59(7) provides that the non-confidential awards “shall be made public 22
by the CAS”, only a limited number of awards are actually published, as of their
issuance, on the CAS website,46 nor are all awards made available in the CAS

41 Cf. BGE 133 III 235 para. 4.3.2.2. Cf. also Rigozzi, JIDS 2010, pp. 226–227. For an example
where the waiver was deemed valid in the context of setting aside proceedings against a sports
arbitral award, cf. BGer. 4A_232/2012 (award issued by the Basketball Arbitral Tribunal in a
contractual dispute).
42 Cf. also CAS 99/A/246, W. v. FEI, Award of 11 May 2000, para. 34. Since its 2013 edition, the
Code specifies that “in any event, the other elements of the case record shall remain confidential”.
According to Mavromati/Reeb, Art. R59, para. 78, this “clarification was necessary as third
parties (including tribunals) often requested the CAS to disclose elements of the file.” For a
recent case involving an allegation that the outcome of a CAS case had been leaked to the press
prior to the issuance of the award to the parties, see BGer. 4A_510/2015 (where the Supreme
Court found that the petitioner had failed to establish both the occurrence and the source of
the alleged leak, and noted that in any event a breach of the arbitrators’ duty of confidentiality
would not per se entail the annulment of the award).
43 As noted above, according to Art. R31(2), arbitration awards “shall be notified by courier and/
or by facsimile and/or by electronic mail but at least in a form permitting proof of receipt”.
The first transmission of the award to the parties (prior to the dispatch of the signed original
by courier) usually occurs by fax, or – in the more recent practice – by email.
44 Cf. also Mavromati/Reeb, Art. R59, para. 77.
45 E.g. CAS 2011/A/2425, Fusimalohi v. FIFA, letter accompanying the Award of 8 March 2012.
46 See <http://www.tas-cas.org/en/jurisprudence/recent-decisions.html>.
 1700 Arbitration in Switzerland – The Practitioner’s Guide

database.47 This selective publication practice is unfortunate48 for various reasons:

(i) it is fundamentally at odds with the very concept of a “CAS jurisprudence”,
the existence and consistency of which has been referred to by the Swiss Federal
Supreme Court as one of the reasons that can justify the existence of a closed list of
arbitrators in CAS proceedings;49 (ii) it gives an advantage to lawyers who regularly
act before the CAS (not to mention lawyers from the same firm as a CAS arbitrator),
as they will inevitably be informed of, and have access to, a wider pool of decisions
and precedents; (iii) it might create an impression of lack of transparency.
23 While the CAS has seemingly stopped publishing periodical volumes of digests
of its awards,50 its Bulletin, a publication which in the past was circulated only to
CAS arbitrators, is now available on the internet for downloading.51 In addition, an
increasing number of digests and reports on CAS awards are published in various
academic arbitration and sports law journals, in particular the Journal du droit
international (JDI),52 the Revue de l’Arbitrage (Rev.Arb.),53 the Paris Journal of
International Arbitration/Cahiers de l’arbitrage,54 the International Sports Law Review
(ISLR),55 the International Sports Law Journal (ISLJ),56 and, starting in 2016, the
Yearbook of International Sports Arbitration (YISA).57
24 Article R59(7) also allows the CAS to issue a press release together with or in lieu of
the publication of the award. Given the increased attention devoted by the media to
CAS disputes, it is submitted that the contents of the press statement issued by the
CAS should be agreed (or at least discussed) with the parties prior to its issuance.
If the parties cannot agree, the press release should at least be drafted with the

47 See <http://jurisprudence.tas-cas.org/Help/Home.aspx>. In addition, as noted in the previous

edition of this commentary, the uploading of awards in the CAS’s “searchable” database seems
to occur only quite some time after their issuance. That said, the frequency and number of
uploads seems to have increased recently, with the result that more awards, both old and more
recent, are now available in the database’s archives.
48 Cf., in particular, Rigozzi, paras. 1259–1269.
49 BGE 129 III 445 para. 3.3.3.2. On the CAS list of arbitrators, cf. Introduction to the CAS Code
(Part I), paras. 5–11 above.
50 Cf. CAS Digests I, II and III.
51 Available at <http://www.tas-cas.org/en/bulletin/cas-bulletin.html> from the 2010 issue
onwards. Each issue of the CAS Bulletin contains several articles and commentaries, a series
of reports and summaries of recent CAS awards, under the title “Leading Cases”, and a section
devoted to the Swiss Federal Supreme Court’s case law relating to CAS awards, as well as
miscellaneous information on the CAS activities and CAS-related publications and news.
52 Featuring a digest with commentaries, published almost every year since 2001 by Eric Loquin,
together with Dominique Hascher and/or Gérald Simon, and, more recently, Johanna Guillaumé,
under the title “Tribunal Arbitral du Sport, Chronique des sentences arbitrales”.
53 Digest under the editorship of Mathieu Maisonneuve with commentaries by various contributors,
including Sébastien Besson, Cécile Chaussard, Francis Kessler, Marc Peltier and Gérald Simon,
published yearly under the title “Chronique de jurisprudence arbitrale en matière sportive”.
54 Published regularly in the then Cahiers de l’arbitrage, under the title “Chronique de jurisprudence
en matière d’arbitrage sportif”, by Andrea Pinna and Antonio Rigozzi, then continued in the
Paris Journal of International Arbitration by Antonio Rigozzi and Ulrich Haas.
55 See in particular the insert “Switzerland – Anti-doping Reports”, by Antonio Rigozzi, Marjolaine
Viret and Emily Wisnosky.
56 Both the ISLR and the ISLJ regularly feature reports on individual CAS cases or on the decisions
rendered during particular events, such as the Olympic Games. Cf., for instance, Beloff, ISLR
2009, pp. 3–11.
57 Co-edited by Antoine Duval and Antonio Rigozzi, the Yearbook aims to be the first compre-
hensive annual review devoted exclusively to sports arbitration. The first volume, published
in 2016, covers the decisions rendered in 2015.
Article R59 CAS Code – Rigozzi/Hasler 1701

involvement of the panel that rendered the award, bearing in mind that journalists
will, in most cases, not bother to read the full award, but simply (and sometimes
selectively) copy-paste the contents of the press release(s).58 Inaccurate media
coverage can cause a great deal of harm to athletes, whose entire career may be at
stake in a CAS decision. Moreover, in high profile cases, the CAS Secretary General
has recently started the practice of giving a press conference. This is an unprecedented
step by an arbitral institution and a new development in the area of arbitration law.
While it is true that media attention needs to be addressed and dealt with, including
by adopting an efficient communication policy, it is submitted that such a policy
ought to be carefully considered and that clear rules governing its various aspects
should be set out, ideally in the Code itself. Any such rules should, in all cases, aim
at ensuring that the interests of the parties themselves always prevail over those of
the media and/or the arbitral institution.

58 According to Mavromati/Reeb, art. R59, para. 79, the CAS’s practice of issuing media releases
“was mostly developed in order to avoid misinterpretation of [the] decisions, e.g. when a party
makes unilateral statements to the press, and in order to give the parties an objective statement
that they can use for their own communication.”
 1702

D. Special Provisions Applicable to the Consultation

Proceedings (Arts. R60 – R62, R66)

1 Articles R60 to R62 and R66 of the Code, governing the so-called CAS “consultation”
or “advisory proceedings”1 (the “C” proceedings) were abrogated by a decision of the
ICAS, with effect from 1st January 2012. As noted in the comments released by the
CAS Secretary General upon the entry into force of the revised Code,2 the reasons
for abrogating these provisions were, on the one hand, that recourse to the advisory
procedure had been declining since the second half of the 1990s,3 and on the other,
that the requests for advisory opinions lodged in recent years tended to deviate from
the original purpose of the procedure, which was to provide sports organizations
with the opportunity to seek a “neutral” legal opinion from the CAS to help them
resolve questions of interpretation or difficulties arising from conflicting sports rules.4
2 According to the CAS Secretary General’s comments, in the more recent cases,
advisory opinions were requested with respect to questions which also made the object
of pending or impending contentious proceedings, with the sole purpose of obtaining
an authoritative opinion which, even if it had no binding force, would undoubtedly
have “a certain influence” on the outcome of the contentious proceedings involving
the same question.5 This gave the sports-governing bodies an undue advantage since,
under Art. R60, athletes were not habilitated to request such advisory opinions,6 but
could only insist on the fact that the opinions issued upon request by a governing
body were (i) non-binding and (ii) not necessarily persuasive, as they were rendered
only on the basis of the materials and arguments provided by the party requesting
the opinion.7
3 As reported in the CAS Secretary General’s comments, in taking its decision to
abrogate the provisions on the advisory procedure, the ICAS found that CAS
ordinary proceedings were just as suitable to allow parties in disagreement over the
interpretation of a given sports regulation to request an opinion from the CAS, with
the difference that in such cases the resulting pronouncement would be embodied
in a binding award,8 and be rendered with the benefit of having heard arguments

1 For a discussion of the practice and procedure of CAS advisory proceedings, cf., e.g., McLaren,
Advisory Opinions, pp. 180–193.
2 Reeb, Modifications essentielles, pp. 9–10.
3 Cf. the table of statistics related to cases submitted to CAS since its creation, available at
<http://www.tas-cas.org/d2wfiles/document/437/5048/0/statistics202011.pdf>.
4 The advisory procedure, which had been in existence since the very inception of the CAS,
enabled CAS panels or sole arbitrators to give opinions on any questions of law or general
interpretation related to sports activities. These opinions were rendered in the same format
as CAS awards, but as provided in Art. R62, did not have binding force. For an example of an
important advisory opinion rendered by the CAS under this procedure, cf. CAS 2005/C/976 &
986, FIFA & WADA, Advisory Opinion of 21 April 2006.
5 Reeb, Modifications essentielles, pp. 9–10. Cf. also McLaren, Advisory Opinions, p. 181. For an
example of a situation of this kind, cf. CAS 2009/A/1870, WADA v. Jessica Hardy and USADA,
Award of 21 May 2010, paras. 40–49.
6 Indeed, as is apparent from the text of Art. R60, first sentence, only certain sports-governing
bodies and organizations were authorized to file such requests.
7 In addition, this had an inevitable impact on the quality of the opinions and, indirectly, on the
(perceived) independence of the system.
8 Reeb, Modifications essentielles, pp. 9–10.
Articles R60 – R62, R66 CAS Code – Rigozzi/Hasler 1703

from both sides. A recent example of this latter solution can be found in the matter
CAS 2011/O/2422, United States Olympic Committee (USOC) v. International Olympic
Committee (IOC),9 based on a joint request for arbitration filed by the USOC and
the IOC, concerning the validity of the “Regulations Regarding Participation in the
Olympic Games – Rule 45 of the Olympic Charter” (the so-called “Osaka Rule”).

9 Cf. Award of 4 October 2011, finding that the Osaka Rule is invalid and unenforceable. Interest-
ingly, however, a very similar question was subsequently submitted to the exact same panel in
the matter CAS 2011/A/2658, British Olympic Association (BOA) v. World Antidoping Agency
(WADA), this time filed as appeals proceedings, arising from BOA’s appeal against WADA’s
decision declaring BOA’s By-Law on the selection of British athletes for the Olympic Games
to be non-compliant with the WADA Code (cf. Award of 30 April 2012, upholding WADA’s
decision).
 1704

E. Interpretation (Art. R63)

Article R63: Interpretation

A party may, not later than 45 days following the notification of the award,
apply to CAS for the interpretation of an award issued in an ordinary or appeals
arbitration, if the operative part of the award is unclear, incomplete, ambiguous,
if its components are self-contradictory or contrary to the reasons, or if the award
contains clerical mistakes or mathematical miscalculations.
When an application for interpretation is filed, the President of the relevant Division
shall review whether there are grounds for interpretation. If so, he shall submit
the request for interpretation to the Panel which rendered the award. Any Panel
members who are unable to act at such time shall be replaced in accordance with
Article R36. The Panel shall rule on the request within one month following the
submission of the request for interpretation to the Panel.

I PURPOSE OF THE PROVISION

1 In line with other sets of arbitration rules,1 the Code affords parties to CAS arbitrations
the possibility of requesting the interpretation of the awards rendered by panels
operating under both the ordinary and appeals arbitration procedures. The purpose
of this type of provision is that of facilitating the performance and enforcement of
the award, by making room for “remedial action” by the tribunal itself in those cases
where the award may be deemed deficient due, for instance, to unclear wording or
clerical mistakes. As illustrated by the discussion below, the rules governing this type
of remedy endeavor to reconcile this objective with two fundamental principles of
international arbitration, namely the res judicata effect of awards, and the principle
according to which arbitral tribunals are functus officio once they have rendered
their award.
2 Article R63 provides the legal basis for the CAS panels’ power to interpret (and/
or correct) their awards: it defines the circumstances in which an application for
interpretation (and/or correction) may be made with the CAS (II.) and the procedure
that will be followed in dealing with it (III.). The following sections will also ad-
dress Art. R63’s distinctive features, compared to similar provisions in other sets
of arbitration rules, and its relationship with other post-award remedies (IV.-V.).

II TRIBUNALS’ POWER TO INTERPRET AND/OR CORRECT THEIR

AWARDS

3 It is a well-established principle that, absent an agreement to the contrary, the

power of arbitrators to correct and/or interpret their award is governed by the law
of the seat of the arbitration.2 Pursuant to Art. R28, in CAS arbitral proceedings,

1 Cf., e.g., Art. 35 ICC Rules; Art. 35 Swiss Rules; Art. 37 UNCITRAL Rules.
2 Cf. Born, §24.03[B] and § 24.04[B].
Article R63 CAS Code – Rigozzi/Hasler 1705

this will be Chapter 12 of the PILS (or Part 3 of the ZPO when the arbitration is
domestic).3 Contrary to other arbitration statutes,4 including the ZPO,5 the PILS
contains no provision on the interpretation of awards or similar forms of “post-award
remedies”, such as correction and supplementation. Nevertheless, it is well-settled
that international arbitral tribunals siting in Switzerland do have the inherent power
to correct or interpret their awards.6 The conditions for the exercise of such power
are primarily governed by the parties’ agreement.7 In practice, the parties’ agreement
will be expressed in an indirect manner, by reference to any relevant provisions in
the applicable arbitration rules.
In CAS arbitrations, the arbitrators’ residual powers with respect to their awards 4
are set out in Art. R63. The heading of Art. R63 only speaks of interpretation,
but as its text makes clear, this provision also deals with the correction of awards,
to the extent it allows the parties to request the panel’s intervention where “the
award contains clerical mistakes or mathematical miscalculations”. The distinction
between interpretation and correction is not always clear-cut. In practical terms, a
request for interpretation will aim at obtaining a clarification of the meaning of a
given term, expression or passage in the award,8 whereas the purpose of a request
for correction is to seek the rectification of its text.9 Be that as it may, what matters is
that the remedies of interpretation and correction are both meant to help elucidate
the intent of the tribunal in rendering its original award, i.e., “to restore the true
meaning of the award”; they are not means to obtain a new, different decision from
the arbitrators.10
Article R63 specifies that a request for interpretation can be made with respect to 5
“the operative part of the award” (“le dispositif de la sentence”). The operative part
of an award contains the substantive ruling rendered by the panel on the parties’
claims, as opposed to the discussion of the underlying facts and arguments and the
panel’s reasoning in reaching its decision. However, under Swiss law, the operative
part of the award may need to be interpreted in light of the reasons.11 Hence, Art. R63

3 Cf. Art. R28.

4 Cf., e.g., Art. 1058 of the German ZPO.
5 Under the heading “Rectification, interpretations and completion of the award”, Art. 388 ZPO
reads as follows: “1. Each party can apply to the arbitral tribunal for it to: a) rectify clerical
mistakes and errors of calculation in the award; b) interpret specific passages in the award; c)
render an additional award regarding claims which were raised in the arbitral proceedings but
not addressed in the award. 2. The application must be made within 30 days of discovering
the error or parts of the award that require an additional ruling, but at the latest one year after
notification of the award. 3. The time limits for filing an appeal continue to run notwithstanding
the application. If a party suffers detriment from the rectification or interpretation, the time limit
for appeal starts again”.
6 BGE 126 III 524. On this decision, cf. Kaufmann-Kohler/Rigozzi, Jusletter of 19 March 2001.
The same is true of the power to render additional awards, briefly discussed below at para. 16.
7 Art. 182(1) PILS; Art. 373(1) ZPO.
8 The purpose of interpretation is to explain more clearly what a (possibly ambiguous or obscure)
statement in the award is intended to mean, without however altering it.
9 As suggested by the text of Art. 388(1) ZPO, this will concern “clerical mistakes and errors of
calculation”, i.e., errors of typographical, computational or similar nature, but not errors in the
reasoning or errors of law. Contrary to interpretation, a correction of the award does entail an
alteration of the text.
10 Kaufmann-Kohler/Rigozzi, Jusletter 19 March 2001, p. 4.
11 BGE 128 III 191 para. 4a.
 1706 Arbitration in Switzerland – The Practitioner’s Guide

correctly provides that interpretation (and/or correction) can also be required when
components of the award’s operative part “are […] contrary to the reasons”.
6 Any type of award 12 can make the object of a request for interpretation or correction.
Thus, awards on jurisdiction, other interim awards, partial and final awards as well
as consent awards may be the object of a request under Art. R63.13
7 The surprisingly liberal language of Art. R63, which used to provide (until it was
amended in the 2013 edition) that a request for interpretation could be made
“whenever” the operative part or the award itself was deficient in the sense outlined
above, now reads, more plainly, that such requests may be made “if the operative
part of the award is unclear, incomplete, ambiguous, if its components are self-
contradictory or contrary to the reasons, or if the award contains clerical mistakes
or mathematical miscalculations”. Regardless of the adverb used, the correct reading
of this provision is that it constitutes an exception to the general rule that awards
are final and binding for the parties and the tribunal. Arguably, this is also the
rationale of Art. R63(2), which invests the President of the relevant Division with
the authority to review any such request and decide “whether there are grounds for
interpretation” before forwarding the request to the panel.14

III PROCEDURE

A Time Limit

8 Until the 2013 edition of the Code, the most striking aspect of Art. R63 was that
it did not set out a time limit for the filing of requests for interpretation or correc-
tion. Virtually all institutional rules (and the statutes that contain provisions on
interpretation/correction) provide for a short time limit, generally of one month
or thirty days, either from the issuance of the award or from its receipt, upon the
expiry of which the parties may no longer request an interpretation or correction
(and the tribunal, being definitively functus officio, no longer has the power to
rule on such a request).15 Art. R63 now provides for a 45-day time limit to file such
requests. While one could argue that an (even) longer time limit may be warranted
due to the fact that errors or ambiguities in the award could become apparent only
at the time of its execution or enforcement,16 this is a welcome change, consistent
with the fundamental principle of the finality of arbitral awards and the need for
legal certainty, which is of paramount importance in competitive sports.

12 Or, whatever its denomination, any final and binding decision disposing of some or all claims
with res judicata effect.
13 Cf. for instance, BGE 130 III 755 para. 1.3; Knutson, J.Int.Arb. 1994, p. 107.
14 Cf. below, para. 9.
15 Cf., e.g., Arts. 35(1) and 36(1) Swiss Rules.
16 In CAS 2005/A/922 & 923 & 926, WADA & UCI v. Hondo & Swiss Olympic, e.g., where a request
filed more than one year after the rendering of the award was admitted (at a time when the
rules did not specify a time limit), the need for interpretation only became apparent when
the athlete was granted his requests for the stay of the execution of the award in the context
of challenge proceedings. The grant of the stays had the effect of rendering otiose (in French,
“caduque”) the portion of the operative part of the award that, in addition to the total duration,
set out the exact date range of his suspension for an anti-doping rule violation (cf. Decision of
9 March 2007 (reported in Dictionnaire du droit permanent (Update 47), pp. 3488–3489).
Article R63 CAS Code – Rigozzi/Hasler 1707

B Decision by the Division President

According to Art. R63, when an application for interpretation or correction is filed 9

with the CAS,17 the President of the relevant Division shall “review whether there
are grounds for interpretation [or correction]” (in French, “examine s’il y a lieu à
interpretation [ou correction]”). Only if the Division President comes to a conclusion
in the affirmative upon such review will the request be submitted to the panel or
the sole arbitrator who rendered the award. In this respect too, Art. R63 differs from
its counterparts in the majority of the other institutional rules. The Swiss Rules, for
instance, simply require for the Secretariat (as well as the other party or parties)
to receive “notice” of a request for correction or interpretation,18 which is formally
addressed to the tribunal itself: there is no provision for the Secretariat to “review”
the form or merits of the request before forwarding it to the tribunal.19
In practice, the Division President will issue a formal decision only if he or she comes 10
to the conclusion that there is no ground for interpretation or correction. The Division
President does not need to consult the other party or parties prior to making his or
her decision,20 but can surely decide to do so if he or she deems it appropriate under
the circumstances. In our experience, the practice with respect to such decisions is
rather inconsistent: some are reasoned21 while others are not at all.22 The CAS Code
does not indicate whether decisions by the Division President refusing to entertain a
request for interpretation or correction can be appealed, even if they do not qualify
as awards. It is submitted that the contrary view supported in the previous edition
of this commentary would deprive the parties of their right to judicial review.23

C Procedure before the Panel

If the Division President decides that the request should be submitted to the panel, 11
in case one or more of the members of the original panel are no longer available,
Art. R63 provides for their replacement in accordance with Art. R36. This provision
is in line with the practice followed under other arbitration rules.24
Although Art. R63, contrary to analogous provisions in other arbitration rules,25 does 12
not expressly mention that the other party or parties should be afforded an opportunity

17 It may be worth noting here that, contrary to other arbitration rules (cf., e.g., Art. 35(1) ICC
Rules; Art. 36(2) Swiss Rules)), Art. R63 does not state that the CAS may correct errors in the
award sua sponte. According to Mavromati/Reeb, Art. R63, paras. 5–6, “it should be possible
for the CAS Court Office to (unofficially) proceed to [correct] purely clerical mistakes [e.g., date,
docket number, etc. …] if they are discovered after the notification of the award”.
18 For a commentary on Art. 35 Swiss Rules, see Courvoisier, Chapter 3 (Part II) above.
19 Similarly, under the ICC Rules (Art. 35(2)), the Secretariat will merely proceed to transmit the
application for correction or interpretation to the Tribunal.
20 Indeed, if the request is granted, the other party or parties will be consulted by the panel. Cf.
below, para. 12.
21 CAS 2007/A/1396&1402, WADA v. RFEC & V. and UCI v. Federation R. & V., Decision of 9 July
2010. See also CAS 2006/A/1117, C. FC v. E. FCE FC, Decision of 5 April 2007, reproduced as
Annex [A] in Mavromati/Reeb, Art. R63.
22 CAS 2009/A/1816, FC M. v. V., Decision of 12 May 2010.
23 This question has not yet been decided by the Supreme Court, which left it open in BGer
4A_420/2010 para. 3 (Valverde’s case).
24 Cf. Veit, para. 3 at Arts. 35–36 Swiss Rules, p. 309.
25 Cf., e.g., Art. 35(2) ICC Rules.
 1708 Arbitration in Switzerland – The Practitioner’s Guide

to comment on an application for interpretation, it is submitted that this should

always be the case, as failing to do so would amount to a breach of due process.
As far as we are aware, the practice of the CAS is indeed to forward the request to
the other party or parties, fixing a short time limit for them to file their comments.26
13 Article R63(2) at the end sets a time limit for the panel to rule on the application
for interpretation, namely one month following the submission of the request to
it. The CAS Court Office should thus make sure that both the Division President
and, as the case may be, the panel, react swiftly when seized with such a request.

D Decision Rendered

14 If the panel concludes that the award should be interpreted or corrected, its decision
will form an integral part of the original award, a principle that is expressly stated
in some arbitration rules,27 but not in the CAS Code.28 This means, in particular,
that the requirements of Art. R59 will apply to such a decision.29

E Costs Issues

15 Some institutional rules allow for the charging of additional fees in relation to the
work performed by the arbitrators in rendering a decision on interpretation/correc-
tion (provided, however, that the need for such a decision is not attributable to the
tribunal’s own negligence).30 The CAS Code is silent on this point. While it may
be sensible not to rule out this possibility, we would submit that, in appeals cases,
additional costs should be applied only when the request gives rise to particularly
complex questions or turns out to be abusive.

IV ADDITIONAL AWARDS AND REVISION

16 Although the PILS contains no express provision on the arbitrators’ power to render
additional awards, commentators agree that even where the arbitration rules
adopted by the parties are silent in this respect (as is the CAS Code), a request for

26 Cf., e.g., CAS 2005/A/922 & 923 & 926, WADA & UCI v. Hondo & Swiss Olympic, Decision of 9
March 2007, a case involving several parties, where all submitted observations and the athlete
filed additional comments thereafter.
27 Cf., e.g., Art. 35(2) Swiss Rules; Art. 35(3) ICC Rules. Cf. also BGE 131 III 164 para. 1.1.
28 The Panel in CAS 2005/A/922 & 923 & 926, WADA & UCI v. Hondo & Swiss Olympic, Decision
of 9 March 2007, expressly noted at the end of its decision that the latter’s purpose was to
allow for the correct execution of the original CAS award, and that it did not constitute a new
arbitral award. More recently, one of the authors made a request for correction which was
granted by the panel. The panel did not issue a separate decision on correction, and instead
issued a new version of the award incorporating the relevant corrections (of a clerical mistake
on the currency of the award), and which did not mention that there had been a request for
correction. The CAS Court Office letter accompanying the newly issued award, which carried a
new date, stated that the previous award was “null and void and […] replaced by the enclosed
award” (CAS 2015/A/4292, S. v. A., B. v. A. & S., letter and award dated 21 October 2016).
29 Cf. Art. R59, in particular paras. 5–8 above.
30 Cf. Derains/Schwarz, p. 326; Fry/Greenberg/Mazza, Art. 35, paras. 3.1279–3.1287. Art. 40(5)
of the Swiss Rules, which provides that “[n]o additional costs may be charged by an arbitral
tribunal for interpretation or correction or completion of its award”, has been qualified in the
2012 version of the Rules by the addition of the wording “unless the circumstances justify
otherwise”.
Article R63 CAS Code – Rigozzi/Hasler 1709

such an award will be admissible.31 An additional award is a supplemental decision

rendered by the tribunal with respect to claims which were presented in the arbitral
proceedings but have not been dealt with in the original award. In other words, an
additional award is a means to remedy the tribunal’s omission to decide on one
(or more) of the claims submitted to it. Contrary to a decision on interpretation/
correction, an additional award is a self-standing decision, which does not form an
integral part of the original award, but complements it with one or more additional
rulings with respect to the parties’ claims.
While this was the case in the original CAS arbitration rules of 1984, the current 17
CAS Code does not contemplate the possibility to file a request for the revision of an
award. Under Swiss law, the court of competent jurisdiction to hear such requests
is the Swiss Federal Supreme Court.32 However, the Supreme Court’s jurisdiction
to hear applications for revision is not mandatory and the CAS itself can accept to
hear such a request, provided all the parties agree to it.33

V RELATIONSHIP WITH SETTING ASIDE PROCEEDINGS

Importantly, the filing of a request for interpretation/correction does not stay the 18
running of the statutory time limit for challenging awards before the Swiss Federal
Supreme Court.34 Thus, an aggrieved party wanting to initiate setting aside proceed-
ings must be careful to file its challenge within the applicable time limit, regardless
of its intention of requesting a correction or interpretation of the award from the
tribunal. That said, upon filing the challenge the petitioner can also request a stay
of the proceedings before the Supreme Court pending the CAS’s decision on inter-
pretation or correction if the outcome of such decision could render the challenge
(or part of the challenge) against the award moot.35
The decision on interpretation/correction could itself be the object of a new 19
request for interpretation or correction to the tribunal, or be challenged in separate
setting aside proceedings.36 Any challenge against the decision on interpretation or
correction must, however, be strictly limited to issues arising in connection with the
interpretation/correction proceedings or, as to the merits, with the subject matter of

31 Cf., e.g., Kaufmann-Kohler/Rigozzi, para. 7.196; Berger/Kellerhals, para. 1521, referring to BGE
126 III 254. This power is now expressly provided for in Art. 388(1)(c) ZPO.
32 For more details on the procedure for revision before the Swiss Federal Supreme Court, cf. also
Rigozzi, JIDS 2010, pp. 255–264, and the references provided therein.
33 Cf. CAS 2000/A/270, Meca-Medina & Majcen v. FINA, Award of 23 May 2001; CAS 2008/A/1557,
FIGC, Mannini, Possanzini & CONI v. WADA, Award of 27 July 2009.
34 BGE 131 III 164 para. 1.2.4.
35 Conversely, since the decision on interpretation or correction forms part of the award (cf.
above, para. 14), it will also share its fate in case the latter is challenged. Thus, if the award
is set aside, any decision on its interpretation or correction as may have been rendered in the
meantime will also be annulled (BGE 130 III 755 para. 1.3; BGE 131 III 164 para. 1.1).
36 As the decision forms an integral part of the award, it can only be challenged to the extent
the award itself is capable of being challenged (cf., e.g., Berger/Kellerhals, para. 1530). Thus,
a challenge against the decision can be brought on all the grounds on which the award to
which the decision is related could be challenged. This does not mean that the decision on
interpretation/correction cannot be challenged independently (contra: Mavromati/Reeb, Art.
R63, para. 12, based on an overly extensive reading of BGer. 4A_420/2010).
 1710 Arbitration in Switzerland – The Practitioner’s Guide

the decision itself.37 In other words, a challenge against a decision on interpretation/

correction “may not serve as a pretext for obtaining a review of the original award, be
it because the latter had not been challenged within the applicable time limit or the
motion to set aside brought against it has been declared inadmissible or rejected”.38
20 A related question is whether in arbitrations submitted to rules which provide for
the tribunal’s power to interpret/correct its award, such as the CAS Code, there is
an obligation for the aggrieved party to submit a request for such a remedy prior to
bringing a challenge against the award itself before the Supreme Court. In a recent
decision, the Supreme Court has held that this should not be the case under Swiss
law.39
21 The principles outlined above apply mutatis mutandis to decisions on requests for
supplemental awards, or to awards rendered by the CAS pursuant to a request for
revision.

37 If the challenge is dismissed, the decision on interpretation or correction will definitively form
part of the award, whereas if the decision is set aside, the award will stand in its original form.
38 BGE 131 III 164 para. 1.2.3, free translation from the French original. By analogy, see also BGer.
4A_420/2010 para. 3 (Alejandro Valverde’s case), where the Supreme Court held that the rider no
longer had a legal interest in challenging the decision by the President of the Appeals Division
not to admit his request for interpretation of the CAS award sanctioning him with a two-year
suspension in view of the fact that his concomitant challenge against that same award on the
ground that it was affected by a contradiction between the reasons and the operative part (i.e.
based on the same point that was the object of the request for interpretation) had just been
dismissed (in BGer. 4A_386/2010).
39 BGE 137 III 85 para. 1.2, referring to BGE 131 III 164 para. 1.2.4.
 1711

F. Costs of the Arbitration Proceedings (Arts. R64 – R65)

Article R64: In General

R64.1
Upon filing of the request/statement of appeal, the Claimant/Appellant shall pay
a non-refundable Court Office fee of Swiss francs 1’000.–, without which the CAS
shall not proceed. The Panel shall take such fee into account when assessing the
final amount of costs.
If an arbitration procedure is terminated before a Panel has been constituted, the
Division President shall rule on costs in the termination order. He may only order
the payment of legal costs upon request of a party and after all parties have been
given the opportunity to file written submissions on costs.
R64.2
Upon formation of the Panel, the CAS Court Office shall fix, subject to later changes,
the amount, the method and the time limits for the payment of the advance of
costs. The filing of a counterclaim or a new claim may result in the calculation of
additional advances.
To determine the amount to be paid in advance, the CAS Court Office shall fix an
estimate of the costs of arbitration, which shall be borne by the parties in accordance
with Article R64.4. The advance shall be paid in equal shares by the Claimant(s)/
Appellant(s) and the Respondent(s). If a party fails to pay its share, another may
substitute for it; in case of non-payment of the entire advance of costs within the
time limit fixed by the CAS, the request/appeal shall be deemed withdrawn and
the CAS shall terminate the arbitration; this provision applies mutatis mutandis
to any counterclaim.
R64.3
Each party shall pay for the costs of its own witnesses, experts and interpreters.
If the Panel appoints an expert or an interpreter, or orders the examination of a
witness, it shall issue directions with respect to an advance of costs, if appropriate.
R64.4
At the end of the proceedings, the CAS Court Office shall determine the final amount
of the cost of arbitration, which shall include:
– the CAS Court Office fee,
– the administrative costs of the CAS calculated in accordance with the CAS
scale,
– the costs and fees of the arbitrators,
– the fees of the ad hoc clerk, if any, calculated in accordance with the CAS
fee scale,
– a contribution towards the expenses of the CAS, and
– the costs of witnesses, experts and interpreters.
 1712 Arbitration in Switzerland – The Practitioner’s Guide

The final account of the arbitration costs may either be included in the award or
communicated separately to the parties. The advance of costs already paid by the
parties are not reimbursed by the CAS with the exception of the portion which
exceeds the total amount of the arbitration costs.
R64.5
In the arbitral award, the Panel shall determine which party shall bear the arbitra-
tion costs or in which proportion the parties shall share them. As a general rule and
without any specific request from the parties, the Panel has discretion to grant the
prevailing party a contribution towards its legal fees and other expenses incurred
in connection with the proceedings and, in particular, the costs of witnesses and
interpreters. When granting such contribution, the Panel shall take into account
the complexity and outcome of the proceedings, as well as the conduct and the
financial resources of the parties.

I PURPOSE AND SCOPE OF APPLICATION OF THE PROVISION

1 Article R64, together with Art. R65, sets out the provisions governing costs in CAS
arbitration proceedings. The purpose of this type of provision in institutional rules
is to provide advance guidance to the parties on the manner in which the costs of the
arbitration will be calculated and allocated. The indications given in Arts. R64–65,
together with the applicable Schedule of Arbitration Costs,1 help make costs-related
issues more transparent and predictable for parties contemplating or involved in an
arbitration before the CAS.
2 Article R64 applies (i) to all CAS arbitrations conducted as ordinary proceedings,
as well as (ii) to appeals proceedings against decisions that were not issued by
international federations or that were issued by international federations but are not
disciplinary in nature2 and, (iii) in particular when the federation which has rendered
the challenged decision “is not a signatory to the [Paris] Agreement constituting the
ICAS”,3 to appeals proceedings against decisions issued by international federations
in disciplinary matters, when the President of the Appeals Division so decides.4
3 In CAS proceedings, the costs of the arbitration include the CAS Court Office fee
(II.), the administrative costs of the CAS and the costs and fees of the arbitrators,
as well as, where relevant, the costs and fees of, e.g., any expert(s) or interpreters
appointed by the panel (III.). In addition, the parties will incur costs for their legal
representation and other expenses in connection with the proceedings (IV.). The

1 The CAS Schedule of Arbitration Costs, last updated on 1 January 2017, can be found on the
CAS website, at <http://www.tas-cas.org/en/arbitration/arbitration-costs.html>.
2 The costs of appeals proceedings against decisions which are of a disciplinary nature and
rendered by an international federation are governed by Art. R65.
3 This provision, introduced in 2013, is understandably meant to avoid that sports governing
bodies which do not contribute to the financing of the ICAS take advantage of free of charge
proceedings before the CAS. A list of such governing bodies is nowhere to be found but it is
common knowledge that the Fédération Internationale de l’Automobile (FIA) and the Inter-
national Golf Federation (IGF) are among them. See also Mavromati/Reeb, Art. R65, para. 6,
footnote 9.
4 Cf. Art. R65(4), paras. 7–8 below.
Article R64 CAS Code – Rigozzi/Hasler 1713

evolution of the rules governing costs in CAS arbitration means that the availability
of legal aid for impecunious parties has become crucially important (III. A.).

II CAS COURT OFFICE FEE

Article R64.1(1) provides that, upon the filing of the request for arbitration/statement 4
of appeal, the claimant/appellant is required to pay a non-refundable fee of CHF
1’000.– before the proceedings can be set in motion.
Having remained unvaried since 1994,5 the CAS Court Office fee was doubled from 5
CHF 500.– to CHF 1’000.– in 2011. While this may appear to be a significant increase,
the CAS fee remains moderate when compared with the filing fees charged by other
arbitral institutions.6 Hence, it is submitted that, even in appeals cases (save for
truly exceptional circumstances), the CAS Court Office fee does not constitute a bar
to the ability to access justice as it is still affordable for the vast majority of parties.
Parties who apply for CAS legal aid7 should be aware that this would not usually
dispense them from paying the Court Office fee pending the ICAS Board’s decision
on their application.8

III ARBITRATION COSTS

A Advance of Costs and Legal Aid

Under Art. R64.2 the CAS Court Office shall request the parties to pay an advance 6
of costs upon the constitution of the panel. The panel is not directly involved in
fixing the initial advance as it will only receive the file once the advance has been
paid, at least by one of the parties.9
In fixing the amount of the advance, the CAS Court Office will “estimate […] the 7
costs of arbitration, which shall be borne by the parties in accordance with Article
R64.4”. These costs comprise the CAS’s administrative costs and the costs and fees
of the panel.10 In practice, the advance is calculated on the basis of the CAS Schedule
of Arbitration Costs, which can be found on the CAS website.11 The CAS Court
Office enjoys significant discretion in fixing the advance and does not provide any
explanation as to how the relevant amount has been calculated. Moreover, being
an administrative decision, the Court Office’s determination on the advance cannot

5 Reeb, Modifications essentielles, p. 10.

6 Cf. for instance, Art. 1 of Appendix III to the ICC Rules (providing for a filing fee of USD 3’000)
or Appendix B to the Swiss Rules (providing for a registration fee ranging between CHF 4’500
and CHF 8’000, depending on the amount in dispute and fixing the fee at CHF 6’000 where
the amount is not quantified).
7 Cf. below, paras. 11–13.
8 Mavromati/Reeb, Art. R64, para. 4, footnote 5 and at Art. R30, para. 25. Further, it is submitted
that, unless the appellant can establish that he or she cannot even afford paying the filing fee,
such payment should be required simply as a means to determine whether he or she is serious
about the appeal.
9 Cf. Art. R52.
10 Cf. below paras. 26–28.
11 See <http://www.tas-cas.org/en/arbitration/arbitration-costs.html>. The schedule was
recently amended, with effect on 1 January 2017.
 1714 Arbitration in Switzerland – The Practitioner’s Guide

be challenged.12 Parties are thus faced with a considerable level of unpredictability.

That said, experience shows that when the case does not have a specific value, the
advance requested will tend to be between CHF 30’000.– and CHF 40’000.– for
a three-member panel. In disciplinary cases, the current CAS practice appears to
be that the total advance will be fixed at CHF 36’000–. In case a sole arbitrator is
appointed, the amount of the advance is usually CHF 18’000–.13
8 Supplementary advances of costs may be requested by the Court Office (including
upon request by the panel). This may occur where the complexity of the dispute
and/or the time required to deal with the case are greater than initially anticipated.14
The CAS Court Office can review the financial status of the file at different stages of
the proceedings, including after the arbitrators have drafted the award (or when the
drafting is under way), in which case it will request the payment of an additional
advance before notifying the award to the parties.15 Such late requests for additional
advances should be avoided in disciplinary cases when it is clear that the athlete
already had difficulties in paying the initial advance.
9 As a matter of principle, the advance is to be paid in equal shares by the claimant(s)/
appellant(s) and the respondent(s).16 Only in ordinary proceedings, when the
respondent files a counterclaim,17 will the CAS Court Office proceed to calculate an
“additional” advance, as stated in Art. R64.2(1). In that case, it is submitted that,
according to the original language of Art. R64.2(1)18 any party can ask the CAS to
calculate “separate advances”, pro-rated to the amount of the parties’ respective
claims.19
10 The Code is silent as to how the shares of the advance are allocated in multi-party
arbitration, in particular in cases where there are multiple respondents and/or
multiple claimants/appellants following the consolidation of connected proceedings,
or involving the intervention of third parties.20 When two parties file an appeal against

12 Mavromati/Reeb, Art. R64, para. 15.

13 Figures based on the authors’ experience. Absent a publicly available corpus of practice in
point, they should be taken as a very rough indication.
14 As noted by Mavromati/Reeb, Art. R64, para. 18, this may be the case in proceedings where
it is necessary to hold a second hearing, as well as in matters requiring the issuance of more
than one award, or in cases involving multiple procedural incidents.
15 CAS 2011/A/2360 & 2392, E. Federation & G. Federation v. FIDE, Letter of 20 January 2012. In
one instance known to the authors, the CAS has requested the payment of a supplementary
advance of costs almost 5 months after the notification of the award without grounds, referring
to “the significant activity performed by the Panel to date, and the costs incurred by the CAS”
(CAS 2015/A/4241, KSC et al. v. FIFA & KFA, letter dated 3 November 2016).
16 Art. R64.2(2). For cases involving multiple parties, see para. 10 below.
17 The filing of counterclaims is no longer possible in appeals proceedings under the Code (cf.
Art. R55, paras. 21–22 above).
18 As from the 2013 edition of the Code, the adjective “separate” that was previously used in Art.
R64.2(1) was replaced by “additional”.
19 According to Mavromati/Reeb, Art. R64, para. 19, if “a counterclaim is filed and in the event the
respondent has not paid the first advance of costs, the respondent will be invited to pay its share
in order to validate the filing of the counterclaim. If the [claimant] has paid the entirety of the
advance of costs, the Respondent will still be invited to pay its share in case of a counterclaim.
Any amount paid in excess by the [claimant] would then be reimbursed by CAS”.
20 Since the Code’s 2013 edition, the wording of Art. R64.2 does contemplate cases where there
are more than two parties (by adding an “s” to claimant(s), appellant(s) and respondent(s)),
but, as noted in the previous edition of this commentary, it still does not specify how the “equal
shares” of the advance of costs are allocated across all the parties (i.e. whether it is 50% for
Article R64 CAS Code – Rigozzi/Hasler 1715

the same decision (for instance WADA and the IAAF against a decision rendered
by a national anti-doping organization) they should be considered as two separate
parties for the purpose of allocating the advance of costs. Similarly, it is submitted
that when a party decides to join the proceedings it must also pay its share of the
advance as an independent party.
It can occur that the respondent(s) do(es) not pay its/their share of the advance. In 11
such cases, the CAS Court Office will fix a time limit for the claimant(s)/appellant(s)
to substitute for the respondent(s) by paying also the latter’s share (except for coun-
terclaims in ordinary proceedings).21 As Art. R64.2 makes clear, if the claimant(s)/
appellant(s) fail(s) to pay the outstanding share of the advance, the request for
arbitration or appeal is deemed withdrawn. In other words, the respondent(s) can
force the claimant(s)/appellant(s) to pay the entire advance of costs for the arbitration.
While this is standard practice in commercial arbitration, it is submitted that, at
least in disciplinary matters in appeals arbitrations, sports-governing bodies should
refrain from engaging in such tactic, unless it is abundantly clear that the appeal is
spurious and the prospects that the appellant(s) will be in a position to honor an
award on costs are manifestly nil.
In appeals cases, depending on the financial resources of the parties, the obligation 12
to pay an advance of costs in disputes of national character or in non-disciplinary
international disputes can in fact preclude access to arbitration. Arguably, in such
situations, there is the possibility for an appellant without sufficient financial
resources to rescind the arbitration agreement contained in a sports regulation on
the ground that it does not afford him fair access to justice.22
Indeed, the obligation to submit sports disputes to arbitration deprives athletes of the 13
legal aid facilities that may be available before the otherwise competent state courts.
Accordingly, the availability of legal aid before the CAS is of crucial importance. Art.
S6 para. 9 of the CAS Code provides (in varying terms, since 1994) that “if it deems
such action appropriate, the ICAS may create a legal aid fund to facilitate access to
CAS arbitration for individuals without sufficient financial means and may create
CAS legal aid guidelines for the operation of the fund”. Even though guidelines on
legal aid have been adopted by the ICAS only recently (in September 2013), as noted
in the previous edition of this commentary, the possibility to apply to the CAS for
legal aid already existed before that date, via the “Legal Aid Application Form” that
could be obtained upon request from the CAS Court Office.23

each ‘side’ to the dispute, or whether there should be as many equal shares as there are parties
to the proceedings). According to Mavromati/Reeb, Art. R64, para. 16, footnote 20, the former
applies: the advance is to be paid in equal shares by each side, and, where applicable, it is
normally divided in equal parts within the relevant side(s) (e.g., if there are two respondents,
each will be expected to pay 50% of the respondents’ share, or 25% of the total advance).
21 In cases involving multiple respondents, if one of the respondents fails to pay its share of the
advance of costs, the claimant(s)/appellant(s), and not the other respondent(s), will be invited
to substitute for that party (see Mavromati/Reeb, Art. R64, para. 17).
22 Cf. Kaufmann-Kohler/Rigozzi, para. 3.187. The question whether and under what conditions
an impecunious party could terminate the arbitration agreement on this ground was left open
in BGer. 4A_178/2014 para. 4. For a recent discussion of this question under the Swiss lex
arbitri, see Göksu, Prozessarmut.
23 Rigozzi/Hasler, at Art. R64, para. 12. Cf. also, e.g., CAS 2012/A/2696, Steve Mullings v. JADCO,
Order of 4 May 2012, CAS 2011/A/2503, D. v. CONI, Order of 5 September 2011; CAS 2005/A/953,
D. v. IIHF, Order of 24 October 2005.
 1716 Arbitration in Switzerland – The Practitioner’s Guide

14 The CAS Legal Aid Guidelines (and the Legal Aid Application Form) can now be
downloaded from the CAS website.24 Enacted on 1st September 2013 (with slight
amendments adopted on 1st January 2016), the Guidelines’ stated aim “is to guarantee
the rights of natural persons without sufficient financial means, to defend their
rights before the [CAS]”.25
15 CAS legal aid is available in both ordinary and appeals proceedings.26 It can be
requested by the claimant/appellant once the request for arbitration/statement of
appeal has been filed,27 and the respondent can apply for it as soon as it receives
the request for arbitration/statement of appeal.28 A request can be lodged at any
later stage in the arbitration, however applicants should bear in mind that, if the
request is successful, the legal aid they will receive “will only cover future costs
and cannot be granted retroactively”.29
16 The Guidelines set out the requirements and procedure to obtain legal aid from the
ICAS. As stated in their Art. 5, the request must be “reasoned and accompanied
by supporting documents”. Applicants must fill in the CAS’s Legal Aid Application
Form and enclose the relevant documents with it.30
17 In essence, the information and documents provided with the application form
should demonstrate (i) that the applicant’s financial situation does not allow him
or her to pay the advance of costs (respectively, honor an award on costs)31 and
(ii) that his or her case on the merits is not manifestly unfounded.32 The best way

24 Available at <http://www.tas-cas.org/en/arbitration/legal-aid.html>.
25 More specifically, according to Art. 5 of the Guidelines, legal aid is available to applicants whose
“income and assets are not sufficient to allow [them] to cover the costs of the proceedings
without drawing on that part of [their] assets necessary to support [themselves] and [their]
family”.
26 Mavromati/Reeb, Art. R30, para. 28, indicate, based on the data available until August 2014,
that “[s]ince 2013, CAS has registered 30 requests for legal aid (and rendered 30 decisions).
More than two-third[s] of the cases where disciplinary nature, whereas one-third was related to
commercial cases. The request was granted in 65% of cases (and in the vast majority of cases
related to doping). […] While most of the requests were submitted within the framework of a
case related to football and athletics, there were also some other sports involved, like cycling,
judo, rugby, swimming and motorcycling”.
27 Art. 7 Legal Aid Guidelines. The rationale and legal basis for this limitation is unclear.
28 Art. 7 Legal Aid Guidelines.
29 Art. 7 Legal Aid Guidelines.
30 The Form requires applicants to provide basic information such as their name, marital status
and address, as well as details of his or her financial situation, including monthly income,
any payments received from sponsors, sports organisations, social security or other benefits,
assets, any charges (e.g., rent) and outstanding debts. Supporting documentation must be
provided for some of these data. As stated in the Form’s header, the information supplied and
any attached documents “are treated in confidence” by the ICAS. See also Art. 22 of the Legal
Aid Guidelines.
31 According to Art. 5 of the Guidelines, legal aid is available to applicants who can demonstrate
that their “income and assets not sufficient to allow [them] to cover the costs of proceedings,
without drawing on that part of [their] assets necessary to support [themselves] and [their]
family”. This wording reflects that used in the Swiss Supreme Court’s jurisprudence under Art.
29(3) of the Federal Constitution (e.g. BGE 135 I 221 para. 5.1).
32 Article 5 of the Guidelines provides that “legal aid will be refused if it is obvious that the ap-
plicant’s claim or grounds of defence have no legal basis” or if they are “frivolous or vexatious”.
As explained on the application form, the request will be rejected “[…] if it is obvious that the
proceedings would not be undertaken or pursued by a reasonable litigant conducting the case
at his own expense”.
Article R64 CAS Code – Rigozzi/Hasler 1717

of establishing the financial situation of the applicant is for him or her to provide
taxation documents (e.g., the latest tax return).33 To allow the ICAS Board to consider
the prospects of success on the merits, the applicant should take care to summarize
his or her case in a clear, concise and compelling manner.34 This may of course be
difficult if the applicant cannot afford legal representation, which is something the
ICAS Board should take into account in taking its decision.
The Guidelines only mention natural persons (“personnes physiques”) as the pos- 18
sible beneficiaries of CAS legal aid.35 That said, the ICAS appears to be aware that
the granting of legal aid should be considered for clubs (or similar entities) where
evidence can be provided that “the economically interested individuals within the
club are indigent”.36 It is submitted that Art. 5’s limitation should not be applied to
purely amateur clubs (or similar entities) incorporated as non-profit organizations.37
Indeed, the risk of rescission of the arbitration agreement also exists when the
applicant is a legal entity.38
The application form, duly filled in and signed, should be sent together with the 19
accompanying documents to the CAS Court Office.39 The ICAS Board decides on the
request, providing brief reasons for its determination.40 The Guidelines do not set out
a time limit for the Board to render its decision, nor do they provide that the filing
of an application for legal aid stays the running of time limits in the arbitration. In
appeals proceedings, where the time limits set by the Code are particularly short, this
can be problematic for the applicant as, without knowing when the decision will be
rendered, he or she or it may find it difficult to organize the preparation and briefing
of his or her or its case. Accordingly, it is submitted that the CAS should order the
stay of the proceedings where this is requested together with the application for legal
aid, and that the ICAS Board should in any event render its decision as quickly as
possible to avoid the attendant uncertainties and complications. The ICAS Board’s
decision on the application cannot be appealed,41 but is subject to reconsideration.42

33 Note that under Art. 9 of the Guidelines, “the applicant is requested to authorize state institutions
and third parties to provide confidential information on his financial situation”.
34 The legal aid application form contains a field requiring a brief summary of the “facts of the
case and what is the stake in the procedure” (see also Art. 9 of the Guidelines). Reference can
be made, in the summary, to any topical documents already in the record, e.g. if they have
been produced with the statement of appeal/request for arbitration or the answer (cf. Arts.
R38, R39 respectively R48, R55).
35 Article 5 of the Guidelines. Mavromati/Reeb, Art. R30, para. 24 state that legal aid is available
to “only natural persons and therefore not clubs or juridical persons”.
36 CAS 2012/A/2720, FC I. v. LA de l’ASF & ASF & FC C., ICAS Order of 16 July 2012, para. 11.
37 Swiss courts have granted legal aid to amateur clubs constituted as associations under Swiss
law (cf. decision by the Tribunal d’Arrondissement Côte VD, FCI. v. LA ASF & ASF & FCC.,
AJ12.038542, Decision of 8 November 2012), presumably on the ground that Art. 117 ZPO
provides that “any person” can request legal aid.
38 Cf. CAS 2012/A/2720, FC I. v. LA de l’ASF & ASF & FC C., Award of 11 April 2014, paras. 3.4–3.43,
In this case, the SFL realized that risk and opted to “supplant” the ICAS decision not to grant
legal aid to the appellants by covering all the costs of the arbitration.
39 Article 8 of the Guidelines.
40 Article 10 of the Guidelines.
41 Article 10 of the Guidelines.
42 According to Art. 12 of the Guidelines, the applicant may lodge a request for reconsideration
“in circumstances where his financial situation deteriorates significantly after his initial request
for legal aid was considered and refused”. Note also that, under Art. 14 of the Guidelines, “[t]he
ICAS Board may withdraw legal aid if it finds that the beneficiary is no longer entitled to it, or
if legal aid was improperly granted”.
 1718 Arbitration in Switzerland – The Practitioner’s Guide

20 Pursuant to Art. 6 of the Guidelines, if the ICAS Board grants the application, it
may43 (i) exonerate the applicant from having to pay the costs of the procedure or to
pay an advance of costs, and/or (ii) invite the applicant to choose, from a list of pro
bono lawyers established by the CAS, a counsel who will advise and represent him
in the CAS proceedings and/or (iii) provide the applicant with a limited lump sum
(in these authors’ experience, usually not exceeding CHF 4’000.–) as reimbursement
for travel, accommodation and other expenses justifiably incurred in connection
with the arbitration.
21 According to Art. 18 of the Guidelines, the CAS list of pro bono counsel allows
applicants to choose from a pool of “volunteer lawyers […] competent in inter-
national arbitration and/or sports law and able to work in the official languages of
the CAS”. The CAS’s commentary specifies that the CAS list of pro bono lawyers
“is managed by the CAS Court Office and is not published. It is however remitted
to the beneficiary of legal aid, who has the freedom to select the pro bono lawyer
of his choice”.44 In this regard, the question arises whether applicants are entitled
to appoint pro bono counsel from outside the CAS list. This question is particularly
relevant in appeals proceedings, where the appellant may wish to be assisted by
the same counsel who advised him or her before the lower instance(s). This will
obviously have the advantage that the chosen counsel will already be familiar
with the file and the relevant legal issues, which will help save time and costs.
The importance of an established trust relationship between counsel and the client
should also not be underestimated. Accordingly, it is submitted that applicants
should be entitled to avail themselves of the services of pro bono counsel who fulfil
the requirements or Art. 18 of the Guidelines, even though they are not on the CAS
list. Where applicants wish to suggest the appointment of pro bono counsel from
outside the CAS list, it would seem advisable to state that in the application form
and to attach the candidate counsel’s curriculum vitae, together with a statement
of his or her availability to act on a pro bono basis, so as to enable the ICAS Board
to duly consider the request.
22 Finally, it should be noted that, pursuant to Art. 11 of the Guidelines, “all beneficiar-
ies of legal aid agree to immediately advise the CAS Court Office of any change
in circumstances on which the granting of legal aid was based, as well as the
occurrence of any other fact relevant to the granting of legal aid”. Art. 14 of the
Guidelines goes on to add that “[t]he ICAS Board may withdraw legal aid if it finds
that the beneficiary is no longer entitled to it, or if legal aid was improperly granted.
The withdrawal […] has retroactive effect”. Here, we would submit that the only
correct interpretation of the last sentence can be that, where the circumstances of
the beneficiary have changed so that he or she or it is no longer entitled to legal
aid, an ICAS-ordered withdrawal should deploy its effects as from the moment
the change in circumstances occurred (not ab initio). Where there is no change in
circumstances, “legal aid takes effect from the day it is requested and ends […] at
the end of the proceedings before the CAS”.45
23 The decision on legal aid is particularly important since failure to pay the advance
of costs (be it the initial share of the advance, the substitution for the respondent’s

43 Provided the applicant has ticked the corresponding box(es) on the legal aid application form.
44 Mavromati/Reeb, Art. R30, para. 27.
45 Article 13 of the Guidelines.
Article R64 CAS Code – Rigozzi/Hasler 1719

share or any additional advance ordered by the CAS) within the time limit fixed by
the CAS will result in the claim/appeal being deemed withdrawn.46 This is systemati-
cally restated in all the CAS decisions fixing advances of costs and the parties are
reminded of such consequence in a further letter that the CAS sends approximately
one week before the time limit for payment. If the initial advances are not fully
paid within the time limit set by the CAS Court Office, the President of the relevant
Division will terminate the arbitration. If the failure to pay concerns an additional
advance, the termination shall be decided by the panel. The parties can request an
extension of the time limit to pay the advance but, unlike under the provision made
in the Code for the CAS Court Office fee,47 they cannot simply rely on a so-called
“délai de grace”. Only where the delay in payment was caused by a third party will
the CAS find it to be an unjustifiable basis to terminate the arbitration.48 That said,
the decision to terminate the proceedings is within the exclusive purview of the CAS.
This means that one party’s failure to pay the advance within the prescribed time
limit cannot be relied up by the other party to ask that the request for arbitration/
appeal or counterclaim be deemed withdrawn.49
In addition, parties should be aware that according to the Swiss Federal Supreme 24
Court, the fact that a party is confronted with financial difficulties in the course
of the proceedings does not constitute a sufficient ground to stay the arbitration.50
The termination of the arbitration in ordinary proceedings will not prevent the
claimant from reintroducing the claim subsequently, subject to any applicable
statute of limitations. By contrast, the consequences of a failure to pay the advance
in appeals proceedings will be much more dramatic, as the appellant may lose his
or her substantive rights due to the expiry of the time limit for appeal.51 Despite this
drastic consequence, the Swiss Supreme Court has held that issuing a termination
order is both justified52 and not overly formalistic53 in this context.
Pursuant to Arts. R39(3) and R55(3), the respondent may request that the time limit 25
for the filing of the answer be fixed after the payment by the claimant/appellant of
his or her share of the advance of costs. It is submitted that the respondent should
not be allowed to rely on the said provisions with respect to its own share of the

46 Article R64.2(2). It has been contended that a literal interpretation of this provision would
suggest that it sanctions only a default with respect to the advance on costs, not a failure to
comply with the time limit set in order for payment to be made. The Swiss Federal Supreme
Court has held that such an interpretation is not sustainable as it would “paralyze the operation”
of the CAS as an arbitral institution (BGer. 4A_600/2008 para. 4.2.1.3).
47 Cf. Art. R38(3) and Art. R48(3).
48 Cf. CAS 2010/A/2170 & 2171, Iraklis Thessaloniki FC v. Hellenic Football Federation, OFI FC v.
Hellenic Football Federation, Award of 23 February 2011, para. 34. Having noted that payment
instructions had been given to the bank, and that payment had in fact been effected by the
latter, all within the prescribed time limit, the panel added: “[t]he delay […] was caused by
the bank and not by OFI FC itself. The fact that the amount had not been credited on the CAS
bank account was due to technical problems within the bank […]. In the present case, it would
have been therefore not only disproportionate and overly formalistic, but simply wrong for the
CAS Court Office to terminate the present procedure on the basis of Art. R64.2 of the Code”.
49 Mavromati/Reeb, Art. R64, para. 20 and the references; CAS 2012/A/2972, Matti Helminen v.
RL VB, Award of 23 July 2013, para. 24.
50 BGer. 4P.64/2004 paras. 3.2–3.3.
51 Cf. Art. R49 above. See also Mavromati/Reeb, Art. R64, para. 22.
52 BGer. 4A_600/2008 para. 4.2.1.3.
53 BGer. 4A_600/2008 para. 5.2.2.
 1720 Arbitration in Switzerland – The Practitioner’s Guide

advance in cases where the claimant/appellant has to substitute for the respondent’s
failure to pay.

B Determination of the Arbitration Costs

26 Article R64.4 provides that the CAS Court Office shall determine the final amount
of the costs of the arbitration at the end of the proceedings.54 According to Article
R64.4, the arbitration costs include (i) the “CAS Court Office fee” (paid by the
claimant/appellant), (ii) the “CAS administrative costs”, (iii)55 the arbitrators’ fees
and expenses, including the fees of the ad hoc clerk where one is appointed,56 (iv)
an unspecified “contribution towards the expenses of the CAS”, which should cover
any costs arising in connection with the holding of a hearing, including the rental
of premises and costs associated with the use of technologies such as video- or
teleconferencing, audio recording etc., and (v) “the costs of witnesses, experts and
interpreters”, which should cover the fees and expenses of the witnesses summoned
by the tribunal (if any), and of the expert(s) and/or interpreter(s) appointed by the
tribunal (if any).
27 The CAS arbitration rules provide scales for the arbitrators’ fees which are meant
to guarantee the parties that they will not face excessive fees claims.57 The amount
of fees to be paid to each arbitrator is fixed by the CAS Secretary General on the
basis of the work provided and of the time reasonably devoted to the case by the
panel’s members. The hourly fees for CAS arbitrators had not been revised since
2010, when, as noted in the previous edition of this commentary, the ad valorem fee
scale, based on the amount in dispute, had been introduced for the first time.58 The
arbitrators’ fee scale has now been amended (with effect as of 1 January 2017) in
that the first threshold for the amount in dispute (corresponding to the lowest tier
of the hourly rate) has been moved to CHF 2,500,000 (up from CHF 1,000,000 in
the 2010 scale), the hourly rates for the following tiers along the scale have all been
increased by CHF 50, and a new rate of CHF 500 per hour has been introduced for
cases where the amount in dispute is above CHF 15,000,000. Notwithstanding the
latest changes, it is submitted (as already in the previous edition)59 that the CAS

54 Art. R64.1, 2nd sentence, governs the determination of the costs of the proceedings when these
are terminated before a panel has been constituted. In such cases, it will be for the President
of the relevant Division to make a ruling on costs (covering both their amount and allocation)
in the termination order. As noted by Mavromati/Reeb, Art. R64, para. 23, this provision was
revised in 2013 to provide that the Division President may also rule, when issuing the termination
order, on party requests for legal costs (if any), upon giving the parties an opportunity to make
submissions in that regard.
55 The scale setting out the amount of administrative costs that may be levied by the CAS depending
on the amount in dispute is included in the Schedule of Arbitration Costs, which is available
at http://www.tas-cas.org/en/arbitration/arbitration-costs.html. It is noteworthy that, contrary
to other institutions in the recent past, the CAS has not increased the rates it charges for its
administrative costs, while, as discussed in the following paragraph, it has increased the hourly
rate payable to arbitrators.
56 Art. R64.4 does not mention the ad hoc clerk’s expenses. It is submitted that this is an oversight
and that the clerk’s expenses should also be taken into account in the arbitration costs or should
be considered as expenses of the arbitrators.
57 Cf. the Schedule of Arbitration Costs (in effect as of 1 January 2017) is available at <http://
www.tas-cas.org/en/arbitration/arbitration-costs.html>.
58 Rigozzi/Hasler, at Art. R64, para. 16.
59 Rigozzi/Hasler, at Art. R64, para. 16.
Article R64 CAS Code – Rigozzi/Hasler 1721

scale remains reasonable, and still compares favorably with the standard arbitrators’
fees applied in commercial arbitration. Moreover, the CAS Secretary General has the
possibility to adapt the arbitrators’ fees, depending on the circumstances, which
includes the power to reduce them if excessive.60
Article R64.4 provides that “[t]he final account of the arbitration costs may either be 28
included in the award or communicated separately to the parties” after the award. As
amended in 2017, Art. R64.4 expressly states the general rule that advances of costs
“already paid by the parties are not reimbursed by the CAS, with the exception of
the portion which exceeds the total amount of the arbitration costs”. In most cases,
the CAS will opt for a separate communication of the arbitration costs. The relevant
part of the award will then only state that the costs of the arbitration, to be later
determined and communicated to the parties by the CAS Court Office/Secretary
General, shall be borne as apportioned in the award.61 The CAS will subsequently
issue a decision (in the form of a letter) containing (i) the amount of the costs of
arbitration and, where relevant, (ii) directions as to the reimbursement(s) by, or
further payment(s) to be made to, the CAS. In practice, this information may be
notified by the CAS quite some time after the award.62

C Allocation of Arbitration Costs

Article R64.5 of the CAS Code provides that “in the arbitral award, the panel shall 29
determine which party shall bear the arbitration costs or in which proportion the
parties shall share them”.63
The CAS Code does not set out how the panel should exercise its discretion in 30
allocating the arbitration costs. It is very difficult to identify a clear pattern in CAS
jurisprudence since, for obscure reasons, the CAS deletes the costs section from
the awards it publishes. However, experience shows that in practice panels use
the same criteria as are provided under Art. R64.5 at the end for determining the
allocation of legal costs.
The main criterion is of course the outcome of the proceedings: as a matter of 31
principle the costs of the arbitration will be borne by the losing party. Where no
party prevails entirely, the panel can allocate the arbitration costs in proportion to
the parties’ relative success. According to the CAS’s commentary, in appeals cases,

60 As noted by Mavromati/Reeb, Art. R64, para. 5, in case of disagreement, the ICAS Board has
the final say on arbitrators’ fees. The Schedule of Arbitration Costs is Appendix II to the Code.
Its current version is available on the CAS website, at <http://www.tas-cas.org/en/arbitration/
arbitration-costs.html>.
61 On the rules and practice relating to the apportionment of costs, cf. below, III.C.
62 In CAS 2011/A/2380, Arie Haan v. FECAFOOT, for example, almost one year after the award
had been rendered, the decision on the costs of arbitration had not yet been communicated to
the parties. Consequently arbitrators must also be prepared to be compensated with significant
delay. Mavromati/Reeb, Art. R64, para. 24, indicate that the Panel may “ask the CAS Court
Office to determine the final amount of the arbitration costs and then include the exact amounts
to be paid by each party in the final award”, however, to the present authors’ knowledge, this
practice is rarely followed.
63 Art. R64.1(2), which was inserted in with the 2012 revision of the Code, deals with the decision
on costs in instances where the arbitration is terminated before the constitution of a panel.
 1722 Arbitration in Switzerland – The Practitioner’s Guide

if the appeal is withdrawn the case is considered as having been dismissed, meaning
that the respondent is deemed to have prevailed.64
32 The allocation according to the outcome of the proceedings should be adjusted by
taking into account the procedural conduct of the parties. For instance, CAS panels
have decided that the arbitration costs should be borne in equal proportions by the
parties in cases where the losing appellant was found to have raised a legitimate
concern, even if it was ultimately unsuccessful.65 The panel may also consider other
procedural circumstances, such as multiple and unfounded procedural requests by the
parties which may end up being time consuming to deal with and thus expensive.66
33 Finally, the Panel can (and should) further adjust its decision on costs by taking
into account the parties’ respective financial situations, in particular when there
is an obvious disparity between them. While some awards do take this criterion
into account,67 CAS case law is very inconsistent in this respect, and the fact that
the relevant part of the award is often redacted does nothing to help promote
harmonization.
34 The parties should be allowed to make submissions on costs if they so request, either
at the end of the hearing or within a short time limit thereafter.68

IV LEGAL FEES AND OTHER EXPENSES OF THE PARTIES

35 As amended in 2017, Art. R64.5 provides that “as a general rule and without any
specific request from the parties, the Panel has discretion to grant the prevailing party
a contribution towards its legal fees and expenses incurred in connection with the
proceedings and, in particular, the costs of witnesses and interpreters” (emphasis
added). This provision applies to all CAS arbitrations, including appeals arbitrations
concerning a disciplinary decision rendered by an international federation, for
which no arbitration costs are charged according to Art. R65. It should be noted
however that according to the CAS’s commentary, “[i]f the prevailing party is not
represented by counsel, the Panel may not grant any legal fees or limit the costs to
effective travel/accommodation expenses (mostly for awards involving federations
represented by in-house lawyers)”.69

64 Mavromati/Reeb, Art. R64, para. 26 and the references.

65 Cf. e.g., CAS 2010/O/2039, FASANOC v. CGF, Award of 19 April 2010, para. 8.4, where the Panel
dismissed a claim brought by a national federation against a sports federation, but ordered
the parties to bear the arbitration costs in equal shares and declined to award a contribution
towards the respondent’s legal costs. The panel noted that the claim was “one of principle
and important constitutional interpretation” which had been brought “before CAS in order to
protect and advance the best interests of the athletes”.
66 CAS 2003/O/462 (unpublished), paras. 2.1–2.2.
67 Cf., e.g., CAS 2013/A/3115&3116, WADA v. Rebecca Mekonnen & NOPC and WADA v. Lasse Sundel
and NOPC, Award of 9 December 2013, para. 167, where the appellant prevailed (specifically,
the appeals were partially upheld), but was ordered to bear a greater share of the arbitration
costs than the athletes. The panel, noting that “the costs associated with this appeal are likely
such that they could have a significant impact”, considered that the athletes, two “recreational
amateurs with minimal financial means” should not be subjected to “such a burden […that
their] financial situation [would be] at stake”.
68 See also Mavromati/Reeb, Art. R64, para. 31 at the end.
69 Mavromati/Reeb, Art. R64, para. 25 at the end.
Article R64 CAS Code – Rigozzi/Hasler 1723

Be that as it may, the wording of Art. R64.5 makes it clear that the panel has no 36
obligation to award legal costs and that, if it decides to do so, it will not order a full
reimbursement to the prevailing party but only grant a contribution toward such
costs.70 The Swiss Federal Supreme Court has held that “it would be desirable for
the CAS to specify the concept of “contribution” within the meaning of Art. R64.5 of
the Code, in order to give a framework to the discretionary power of the arbitrators
in these matters”.71
In the previous edition of this commentary, it was submitted that (in line with the 37
usual practice in arbitration) a party can be granted a contribution to its costs only
if it made a request to that end in its prayers for relief.72 Art. R64.5, as amended in
2017, now expressly provides that the panel can grant a contribution even “without
any specific request from the parties”. It is submitted that the insertion of this new
wording is unfortunate. First, it does not provide any further clarity on how CAS
arbitrators should exercise their discretionary power to grant a contribution, even
more so in the absence of a specific request from the parties. Second, and more
importantly, it overlooks the fact that awarding legal costs in the absence of a
specific prayer for relief may result in an ultra petita award, which can be set aside
pursuant to Art. 190(2)(c) PILS. To avoid this risk, we submit that CAS arbitrators
should now systematically invite the parties to make submissions on costs, or
at least submit statements of costs specifying whether they wish to be awarded a
contribution towards such costs.73 As to the amount of the contribution, the parties
may opt to leave it to the arbitrators to determine what a fair contribution is, or
request a specific amount.
A submission on costs should contain the parties’ arguments regarding the four 38
criteria mentioned in Art. R64.5 as a basis for the panel’s determination on the
contribution to be awarded, namely “the complexity and outcome of the proceedings,
as well as the conduct and the financial resources of the parties”. The outcome of
the proceedings is the main criterion, since Art. R64.5 provides that a contribution
towards legal costs is granted only to the prevailing party. Although experience
shows that CAS practice is far from consistent in this regard,74 it is submitted
that a contribution can also be granted to a party that did not entirely prevail in

70 See also Mavromati/Reeb, Art. R64, paras. 27–28, noting (at para. 27) that the ICAS’s rationale
in providing for a contribution rather than full indemnification in the Code was to “encourage
parties (and their counsel) to invest reasonable and proportionate costs for their defence,
bearing in mind that the contribution that may be granted in the end will also be reasonable”,
the idea being that this would in turn induce parties “to focus on the core of the legal dispute
and […] shorten the CAS procedures, allowing them to remain quick and efficient”.
71 BGer. 4A_600/2010 para. 4.2.
72 Rigozzi/Hasler, at Art. R64, para. 26.
73 Note that if a panel does order the filing of submissions on costs, then it cannot render an
award ruling on the costs before having received the said submissions, as this would amount
to a breach of the parties’ right to be heard, cf. BGer. 4A_600/2010 paras. 4.2–4.3. See also
Mavromati/Reeb, Art. R64, para. 31.
74 The lack of consistency and the ensuing unpredictability for the parties are compounded by
the fact that the awards as published by CAS do not include the figures relating to costs in the
dispositive section.
 1724 Arbitration in Switzerland – The Practitioner’s Guide

the proceedings, be it the claimant/appellant75 or the respondent.76 The parties’

procedural conduct might lead the panel to decide that no contribution shall be
granted to the winning (or substantially winning) party or to reduce the amount
of such contribution. The fact that the losing party’s “procedural conduct has been
irreprehensible” can be considered as a good reason “to grant only a relatively small
amount of costs’ contribution” in favor of the prevailing party, in particular when
the latter “certainly has larger financial resources than [the former]”.77
39 In an apparent attempt to address the above mentioned criticism by the Swiss Su-
preme Court as to the predictability of the CAS’s practice in relation to the concept of
“contribution” within the meaning of Art. R64.5 at the end,78 the Code now stipulates
(since the 2013 edition) that the “complexity” of the proceedings should also be
taken into account by the panel in reaching its decision as to the costs’ contribution
to be awarded. It is submitted that the complexity of the dispute should be taken into
account to determine the reasonableness of the statements of costs submitted by the
parties, but should not impact the arbitrators’ discretion to determine the amount
of the said contribution. In particular, the fact that the prevailing party has made
complicated factual or legal allegations that were eventually dismissed by the panel
should be taken into account to reduce the amount of any contribution towards its
costs. For its part, the CAS’s commentary states that, while “it is difficult to give a
clear-cut definition of what a standard ‘contribution’ should be”, it being understood
that “discretion and common sense should serve as the best tools” for the purposes
of such determination, “it can be assumed that for each case, CAS Panels would
first evaluate the activity which would be reasonably involved in the preparation
of the written submissions and of the hearing, in the internal consultations and in
the participation in the CAS hearing(s). Such activity would be converted in fees,
to which would be added reasonable costs for transportation and accommodation
of (useful) parties, counsel, witnesses and experts. From that amount, which
constitute[s] the higher limit, the Panel would determine the ‘contribution’ which
should eventually be granted”.79
40 Be that as it may, here again, it is impossible to provide a meaningful analysis of
CAS panels’ practice, given that (1) as mentioned, the costs section is systematically
redacted by the CAS in the awards it publishes, and (2), in those awards to which
these authors have had access in un-redacted form, the panels’ decisions were far
from being consistent on this point. In terms of institutional policy, it is generally
understood that, as part of his scrutiny duties in relation to CAS awards, the Secretary
General invites the arbitrators to limit the amounts awarded under Art. R64.5 in
order to preserve the accessibility of the CAS.

75 Cf. CAS 2000/A/278, Chiba v. Japan Amateur Swimming Federation (JASF), Award of 24
October 2000, para. 16. Cf., however, CAS 2009/A/2023, Gianni Da Ros v. CONI, Award of 17
August 2010, where the Panel did not grant any contribution to the athlete, who had to seize
the CAS to reduce a clearly abusive penalty, but was unable to get the totality of the reduction
he requested.
76 Cf. CAS 2008/A/l458, UCI v. Vinokourov & KCF, Award of 30 August 2010, para. 5.10; CAS
2011/A/2325, UCI v. Roel Paulissen & RLVB, Award of 23 December 2011, para. 213.
77 Cf. CAS 2011/A/2426, Adamu v. FIFA, Award of 24 February 2012, para. 168.
78 Cf. para. 36 above.
79 Mavromati/Reeb, Art. R64, para. 30.
 1725

Article R65: Appeals Against Decisions Issued by

International Federations in Disciplinary Matters
R65.1
This Article R65 applies to appeals against decisions which are exclusively of a
disciplinary nature and which are rendered by an international federation or sports-
body. In case of objection by any party concerning the application of the present
provision, the CAS Court Office may request that the arbitration costs be paid in
advance pursuant to Article R64.2 pending a decision by the Panel on the issue.
R65.2
Subject to Articles R65.2, para. 2 and R65.4, the proceedings shall be free. The
fees and costs of the arbitrators, calculated in accordance with the CAS fee scale,
together with the costs of CAS are borne by CAS.
Upon submission of the statement of appeal, the Appellant shall pay a non-
refundable Court Office fee of Swiss francs 1’000.– without which CAS shall not
proceed and the appeal shall be deemed withdrawn.
If an arbitration procedure is terminated before a Panel has been constituted, the
Division President shall rule on costs in the termination order. He may only order
the payment of legal costs upon request of a party and after all parties have been
given the opportunity to file written submissions on costs.
R65.3
Each party shall pay for the costs of its own witnesses, experts and interpreters. In
the arbitral award and without any specific request from the parties, the Panel has
discretion to grant the prevailing party a contribution towards its legal fees and
other expenses incurred in connection with the proceedings and, in particular, the
costs of witnesses and interpreters. When granting such contribution, the Panel
shall take into account the complexity and the outcome of the proceedings, as well
as the conduct and financial resources of the parties.
R65.4
If the circumstances so warrant, including the predominant economic nature of
a disciplinary case or whether the federation which has rendered the challenged
decision is not a signatory to the Agreement constituting ICAS, the President of
the Appeals Arbitration Division may apply Article R64 to an appeals arbitration,
either ex officio or upon request of the President of the Panel.

I PURPOSE AND SCOPE OF APPLICATION OF THE PROVISION

Together with Art. R64 and the Schedule of Arbitration Costs,1 Art. R65 provides 1
guidance to prospective appellants on how costs are calculated and allocated in
CAS proceedings.

1 The CAS Schedule of Arbitration Costs (last amended on 1 January 2017) can be found on the
CAS website, at <http://www.tas-cas.org/en/arbitration/arbitration-costs.html>.
 1726 Arbitration in Switzerland – The Practitioner’s Guide

2 Contrary to Art. R64, Art. R65 only applies in appeals (not in ordinary) CAS proceed-
ings. More specifically, Art. R65’s scope of application is limited to appeals against
decisions (i) which are exclusively of a disciplinary nature and (ii) which are rendered
by an international federation or sports-body. In such cases, pursuant to Art. R65.2,
the proceedings are free, as their costs are borne by the CAS. This does not extend
to the parties’ costs including attorney’s fees as well as any expenses sustained in
connection with the intervention of their witnesses, experts and interpreters. It is
useful to trace the evolution of Art. R65’s “free of charge” rule in the CAS Code (II.)
before considering how the costs of the proceedings (III.) and the parties’ costs (IV.)
are now dealt with under it.

II EVOLUTION OF THE RULE SET OUT IN ARTICLE R65

3 To start with, it is instructive to compare the text of Art. R65 in the 2013 and 2016
editions of the CAS Code (where it remained unvaried) with its wording in the
earlier editions.2 The 1994 edition of the Code stipulated that all appeals proceedings
were free of charge. In the 2004 edition, the scope of application of this rule was
restricted to “disciplinary cases of an international nature”. The 2010 edition was
then amended to provide that Art. R65 was “applicable to appeals against decisions
which are exclusively of a disciplinary nature and which are rendered by an inter-
national federation or sports-body or by a national federation or sports-body acting
by delegation of powers of an international federation or sports-body”.3 Finally, in
the 2012 edition of the Code, the scope of the “free of charge” rule has been further
reduced, with the stipulation that Art. R65 is only applicable to appeals against
“decisions which are exclusively of a disciplinary nature and which are rendered by
an international federation or sports-body”.4 It has been argued that the rationale
behind this rule change may be to prevent spurious appeals against decisions of
national federations, which would be brought without regard to the cost conse-
quences.5 Be that as it may, as the rule now stands, in all non-disciplinary and/or
non international appeals cases appellants are required to cover their share of the
arbitration costs.6 It is submitted that this differentiated treatment is hard to justify

2 See also Mavromati/Reeb, Art. R65, paras. 1–2.

3 Cf. Rigozzi, Jusletter of 13 September 2010, paras. 43–46 for a critical analysis of the 2010
amendment.
4 This includes continental federations or confederations: cf., e.g., CAS 2012/A/2759, Rybka v.
UEFA, Award of 11 July 2012, para. 12.
5 Cf., for instance, Stephen Sampson/Stacey Shevill, Amendments to the Code of Sports-related
Arbitration, Squire Sanders [as it then was] International Arbitration News 5 April 2012,
available at: <http://www.lexology.com/library/detail.aspx?g=bc437e05-900e-4b76-b80b-
7a039d48f457>. It is submitted that the real purpose of the 2004 limitation was to prevent
the national sports-governing bodies from “externalizing” their dispute resolution costs to the
CAS (as the system is financed by the international federations, National Olympic Committees
and the IOC). The 2010 change was simply meant to reduce the ancillary disputes that could
arise in connection with the definition of “disciplinary cases of an international nature” for the
purposes of Art. R65. As noted in the previous edition of this commentary, the rationale of the
2012 revision may have been to act as an incentive for international federations to refrain from
delegating dispute resolution to their national member federations. In the meantime, one major
international federation that functioned according to that model, the UCI, has abolished the
delegation system and set up its own anti-doping tribunal. The only other important federation
still delegating disciplinary proceedings to its member national sports bodies is the IAAF.
6 Cf. Arts. R64.1 and R64.2. As indicated in the previous edition of this commentary, in accordance
with Art. R67, the rule applies to proceedings initiated on or after 1st March 2013.
Article R65 CAS Code – Rigozzi/Hasler 1727

as both the disciplinary and the international nature of the dispute are clearly not
sound criteria to determine whether the arbitration proceedings should be free of
charge. It is difficult to understand why an athlete or sports-person sanctioned for
match-fixing should benefit from the free of charge rule, while another, who was
subject to a non-disciplinary decision, should advance the costs of the arbitration
in order to have an opportunity to contest that decision. Non-disciplinary decisions,
for instance eligibility decisions, can be just as invasive and damaging as doping-
related or other disciplinary decisions.7 Similarly, one fails to understand why an
allegedly doped athlete can benefit from the free of charge rule if the decision under
appeal has been rendered by an international federation, while he or she would
have to pay for the arbitration if the decision was taken by a national federation
or anti-doping agency. As noted in the previous edition of this commentary,8 this
leads to unsatisfactory situations, as was the case in cycling, where the regulations
of the international governing body (UCI) required national federations to investi-
gate and decide disciplinary cases in the first instance, meaning that CAS appeals
would inevitably fall outside the scope or the free of charge rule of Art. R65. The
UCI has now set up its own anti-doping tribunal, inter alia to avoid this situation.9
Nevertheless, the same problem still exists in track and field cases under the IAAF
Rules.10 The CAS has routinely rejected applications to the effect that the national
decision was in reality a decision by the relevant international federation and that
it is thus unfair to request the athlete to pay the (advance of the) arbitration costs.11
Fortunately, the 2013 edition of the Code introduced an amendment in Art. R65.1, 4
which now provides that any dispute regarding the application of Art. R65 (i.e. as
to the “free of charge rule”) shall be determined by the panel.12 According to this
provision, the CAS Court Office can direct the party claiming that the arbitration
should be free of charge to pay the advance of costs “pursuant to Article R64.2
pending a decision by the Panel on the issue”.13 Given the limited scope of that
specific dispute, it is submitted that the CAS Court Office should request the payment
of only a fraction of the advance, and invite the panel to render its decision at the
earliest opportunity.

7 Cf. CAS 2007/A/1377, Rinaldi v. FINA, Award of 26 November 2007, para. 110: “[…] the
non-approval of a change of national affiliation is not related to a disciplinary procedure or
sanction and is not akin to a disciplinary sanction. Accordingly, it is article R64.4 and R64.5
of the Code that apply to the determination of costs”.
8 Rigozzi/Hasler, at Art. R65, para. 3.
9 See <http://www.uci.ch/news/article/anti-doping-tribunal/>
10 See IAAF Competition Rules (2015) – Chapter 3, Rule 38.
11 In such cases, the CAS tends to propose the appointment of a sole arbitrator and to reduce
the amount of the advance accordingly. However, such a proposal does not really address the
problem: it can only possibly alleviate its consequences.
12 For a case where the Panel was called to make a decision under Art. R65.1, see CAS 2012/A/2817,
Fenerbahçe v. FIFA & Roberto Carlos, Award of 21 June 2013, paras. 127–134: the arbitrators
had to determine whether the dispute at stake was disciplinary in nature, and concluded that
it was not given that it related solely to a question of competence (namely whether the FIFA
Disciplinary Committee had been correct in ruling that it was not competent to deal with a
request to sanction a party under Art. 64 of the FIFA Disciplnary Code for failing to comply
with an award rendered in CAS ordinary proceedings).
13 See also Mavromati/Reeb, Art. R65, para. 5, indicating that “the Panel will have the power to
decide the issue at the beginning of the procedure and not at the end (in the award), as it was
the case before”.
 1728 Arbitration in Switzerland – The Practitioner’s Guide

5 The issue remains, however, that the application of Art. R65.1’s criteria can
potentially impair the athletes’ rights of access to justice. Against this background,
the availability of legal aid becomes a crucial matter, as discussed in connection
with Art. R64.14

III COSTS OF THE PROCEEDINGS

A Principle: “Free of Charge Rule”

6 Under Art. R65.2, appeals proceedings in disciplinary cases of an international nature

are free of charge, save for the CHF 1’000.– CAS Court Office fee, which has to be
paid for the arbitration to be set in motion.15 The parties are only liable for their own
legal representation and assistance costs and the costs incurred in connection with
the involvement in the proceedings of any witnesses, experts and interpreters, as
well as any contribution that the final decision may require them to make towards
the opposing party’s legal costs.16

B Exception: Application of Article R64

7 Pursuant to Art. R65.4, a departure from the free of charge rule can be decided only
by the Division President, either ex officio or upon request by the President of the
panel or sole arbitrator.17
8 Article R65.4 provides that the application of Art. R64 may be decided “if the
circumstances so warrant” including in particular “the predominant economic nature
of a disciplinary case or whether the federation which has rendered the challenged
decision is not a signatory to the Agreement constituting ICAS”. The “predominant
economic nature” criterion is relevant with regard to UEFA’s disputes relating to the
Financial Fair Play Regulations18 and in appeals against FIFA or FIBA’s disciplinary
decisions sanctioning parties who did not comply with CAS19 or BAT20 awards in
financial disputes. Disciplinary disputes concerning match-fixing, corruption and
agents’ activities can also be considered as preeminently economic in nature within
the meaning of Art. R65.4. As to the cases involving decisions by international
sports-governing bodies that are not signatories to the Paris Agreement constitut-
ing the ICAS (and thus do not contribute to its financing), one could mention in
particular doping disputes decided by the Fédération Internationale de l’Automobile

14 Cf. Art. S6(9) of the Code; cf. Art. R64, paras. 12–13 above.
15 Cf. Art. R48(2), paras. 19–21 above.
16 Cf. Art. R65(3).
17 Cf. CAS 2011/A/2325, UCI v. Paulissen & RLVB, Award of 23 December 2011, para. 211. See also
Mavromati/Reeb, Art. R65, para. 8, indicating that where a decision under Art. R65.4 is taken,
the CAS “sends a letter to the parties informing them of the decision of the Division President
and this is confirmed and accepted by the Parties through the signature of the procedural order”.
18 Cf., e.g., CAS 2013/A/3453, FC Petrolul Ploiesti v. UEFA, Award of 20 February 2014, para. 23.
19 See Art. 64 FIFA Disciplinary Code.
20 See Arts. of FIBA’s Internal Regulations. BAT stands for the Basketball Arbitral Tribunal.
Previously named FAT (FIBA Arbitral Tribunal), the BAT has its seat in Geneva, and resolves
non-disciplinary disputes between players, agents and clubs through ex aequo et bono arbitration.
Cf. <http://www.fiba.com/en/bat/sanctions>.
Article R65 CAS Code – Rigozzi/Hasler 1729

(FIA) or the International Golf Federation (IGF).21 It is submitted that Art. R65.4’s
rule should be applied only if the parties are financially in a position to pay the
arbitration costs. Ideally, such a decision should be made at the beginning of the
arbitration in order to avoid any “bad surprises” further down the line. A decision
at a later stage should only be made in exceptional cases, where it becomes evident
during the arbitration that a party has abused the system.
Where the parties reach a settlement during the arbitration, the CAS has ruled that if 9
the settlement leads to the withdrawal of the appeal this may trigger the application
of Art. R64 notwithstanding the free of charge nature of the proceedings.22 This ap-
proach is counter-intuitive as it somehow ‘punishes’ the parties for having reached
a settlement. That said, this situation should in any event remain exceptional as
settlements are not common in disciplinary proceedings.23

IV PARTIES’ COSTS

Article R65.3 provides that “[e]ach party shall pay for the costs of its own witnesses, 10
experts and interpreters. In the arbitral award and without any specific request from
the parties, the Panel has discretion to grant the prevailing party a contribution
towards its legal fees and other expenses incurred in connection with the proceedings
and in particular, the costs of witnesses and interpreters”. As submitted above in
commenting Art. R64.5 (to which the same wording has been added),24 the 2017
amendment providing that the panel may decide to grant a contribution towards the
prevailing party’s legal costs even in the absence of a prayer for relief to that effect
(“without any specific request from the parties”) is unfortunate and may result in the
rendering of an ultra petita award (which would then be open to annulment under
Art. 190(2)(c) PILS). Again as suggested above, the solution to avoid this risk may
be for panels to always invite the parties to make (even very brief) submissions on
costs, indicating whether they wish to be granted a contribution. Under Art. R65.3,
the contribution applies only to the legal and other costs sustained by the parties in
putting their respective case(s) to the CAS and possibly the filing fee, as pursuant to
Art. R65.2 (and subject to Art. R65.4) the CAS bears the arbitration costs proper,
including the fees and costs of arbitrators.
In the majority of cases, the CAS holds that the prevailing party is to be granted a 11
contribution towards the legal fees and other expenses it has incurred in connection
with the arbitration.25 It is submitted that panels should set out a reasoned decision

21 See also Mavromati/Reeb, Art. R65, para. 6 in fine, citing the same examples. As noted under
Art. R64, at footnote 3, the list of signatories does not seem to be publicly available.
22 The parties may have, for instance, to contribute to the costs of the organization of the hearing
if such costs could have been avoided at their own initiative, cf., e.g., CAS 2000/A/264, G. v.
FEI, Order of 23 October 2000.
23 For detail, cf. above commentary on Art. R56, part III.
24 Cf. above commentary on Art. R64, para. 37.
25 In this respect, past panels have often paraphrased the wording of Art. R64.5, according to
which, as a general rule, “the Panel has discretion to grant the prevailing party a contribution
towards its legal fees and other expenses incurred in connection with the proceedings […]”. In
the 2013 edition of the Code, the same wording has been incorporated in Art. R65.3 (cf. Art.
R64.5, paras. 18–22 above). While this “general rule” is consistently recalled and upheld in
CAS awards subject to Art. R65 (cf., e.g., CAS 2010/A/2162, Doping Control Centre University
Sains Malaysia v. WADA, Award of 15 June 2011, para. 21.2), there are significant differences in
the way it is applied in concreto by CAS panels, in particular with respect to the considerations
 1730 Arbitration in Switzerland – The Practitioner’s Guide

on the allocation of costs, taking into account not only the outcome of the case but
also its complexity, the procedural conduct of the parties and their financial resources
(as now expressly provided in Art. R65.3), more frequently than they currently do.
When it is obvious that an appeal has been brought on spurious grounds, the amount
of the contribution should be significant – irrespective of whether the appellant is an
athlete or a sports-governing body. Ultimately, just like the decision to retrospectively
require payment of the arbitration costs pursuant to Art. 65.4 (cf. above III.B), this
should lead to a reduction in the overall number of appeals brought before the CAS,
which in turn would allow the CAS to revise the scope of application of the free
of charge rule, extending it again to appeals cases other than just appeals against
decisions which are exclusively of a disciplinary nature and which are rendered by
an international federation or sports-body. Conversely, when an athlete had to resist
an appeal brought by a sports-governing body, it would appear to be right that no
legal costs should be awarded against the athlete. After all, it is not the athlete who
rendered the decision under appeal.
12 In an exceptional, but illustrative award related to the allocation of parties’ costs
based on the other side’s procedural conduct and financial resources, the Panel ruled
that the appellant had to bear a significant portion of the respondent’s costs based
on his “litigation misconduct”.26 Such misconduct included, inter alia, requiring an
unnecessarily large number of witnesses for cross-examination and subsequently
electing not to call them, pursuing serious allegations of misconduct against the
respondent without any evidence, and bringing an unprecedented number of
technical challenges against the opponent, thereby engaging it in lengthy and costly
proceedings. Ultimately, the respondent was awarded an amount of USD 100’000.00
to cover a portion of its attorney fees and other expenses.

underlying the decision as to the quantum of the contribution awarded to the prevailing party.
In this regard, and to cite but one example, a parallel reading of the relevant sections of the
awards in (i) CAS 2007/A/1377, Melanie Rinaldi v. FINA, Award of 26 November 2007, paras.
111–113 and (ii) CAS 2011/A/2426, Amos Adamu v. FIFA, Award of 24 February 2012, para.
168 (noting that “the Respondent certainly has larger financial resources than the Appellant.
Moreover, the Appellant’s procedural conduct has been irreprehensible. Accordingly, the Panel
does not believe that it would be appropriate for the Appellant to have to pay a large amount
to the Respondent and decides to grant only a relatively small amount of costs’ contribution
in favour of the Respondent”), is perplexing. It is submitted that, without questioning the
discretion panels rightly enjoy in this regard, an approach considering all the relevant elements
and circumstances carefully is not only warranted, but even necessary as a matter of fairness
and proper administration of justice (cf., for instance, CAS 2011/A/2325, UCI v. Paulissen and
Royale Ligue Vélocipédique Belge (RLVB), Award of 23 December 2011, paras. 212–213, where
the Panel took into account the complexity of the case, the outcome of the dispute, the fact
that the arguments raised by the rider had been debated at length in the proceedings, as well
as his financial situation in awarding a contribution towards his legal costs even though the
UCI had prevailed in the arbitration).
26 CAS 2007/A/1394, Landis v. USADA, Award of 30 June 2008, para. 289.
 1731

G. Miscellaneous Provisions (Arts. R67 – R70)

Article R67: Miscellaneous, I

These Rules are applicable to all procedures initiated by the CAS as from 1 January
2017. The procedures which are pending on 1 January 2017 remain subject to the
Rules in force before 1 January 2017, unless both parties request the application
of these Rules.

Article R67 sets out the inter-temporal or transitional rule governing the applicability 1
of the current edition of CAS Code.1
As noted elsewhere,2 this provision, which was first inserted in the 2010 edition of the 2
Code, was a welcome improvement, in terms of legal certainty, on the 2004 edition.
However, the reference it makes to the “initiation of proceedings by the CAS” remains
somewhat ambiguous as, in the absence of a definition, this can be understood to
refer either to the filing of the request for arbitration/statement of appeal (as would
be logical), or to the initiation of the proceedings by the CAS in the “technical” sense
(i.e., pursuant to Arts. R39 (ordinary proceedings) and R52 (appeals proceedings)).
We are only aware of a few CAS (appeals) decisions addressing this issue, and in
those cases the panels seemed to consider that the relevant criterion was initiation
of the proceedings by the CAS within the meaning of Art. R52, although they also
referred to the date of filing of the statement of appeal.3 Given the clear reference
to “pending procedures” in the second sentence of Art. R67, and since, under the
Swiss lex arbitri, this is to be understood as a reference to the date of filing of the
request for arbitration or statement of appeal,4 it is submitted that this, rather than
the date of initiation of proceedings pursuant to Arts. R39 and R52, should be taken
as the relevant date for inter-temporal purposes under Art. R67.5
Be that as it may, the question may also arise whether the parties whose dispute 3
is already pending at the time when the new version of the Code comes into force
may agree to the application of the new rules (as provided in Art. R67 in fine),
subject to specific exceptions (i.e., maintaining one or more of the provisions from
the previous version). This question appears to be rather theoretical with respect
to the transition between the 2016 and 2017 versions of the Code, as the changes
introduced in the latter version do not significantly impact the conduct of the
proceedings (for instance, by introducing new criteria for the admissibility of certain

1 As observed by Mavromati/Reeb, Art. R67, para. 2, this rule, which aims at identifying the
version of the rules that shall govern the proceedings, differs from the tempus regit actum
principle (providing for the application of the (rules of) law in force at the time the dispute
arose), which is used to determine the lex causae (see Art. R58).
2 Cf. Rigozzi, Jusletter of 13 September 2011, para. 3.
3 Cf. CAS 2010/A/2075, Maritimo de Madeira-Futebol S.A.D v. Coritiba Foot-Ball Club, Award
of 22 October 2010, para. 4.1; CAS 2010/A/2193, Cagliari Calcio v. Olimpia Deportivo, Award
of 15 September 2011, para. 4.1; see also Mavromati/Reeb, Art. R67, para. 3, confirming this
interpretation.
4 Cf. Art. 181 PILS.
5 Contra: Mavromati/Reeb, Art. R67, para. 3.
1732 Arbitration in Switzerland – The Practitioner’s Guide

requests).6 Nevertheless, according to the official CAS commentary, Art. R67 would
permit this type of agreement to the extent that the provisions the parties wish to
‘carry over’ from the previous version of the Code do not “affect the CAS as an
institution (e.g., the application of an old rule related to the costs of the procedure
would not be possible if less favorable to the institution)”.7

6 For examples from previous versions of the Code where the changes could make a significant
difference for the parties, see Mavromati/Reeb, Art. R67, para. 6. Among those examples,
Mavromati/Reeb refer to the (lack of) admissibility of counterclaims after the entry into force
of the 2010 version of the Code (cf. Art. R55 above), with reference to CAS 2011/A/2336&2339,
WADA v. Federación Colombiana de Levantamiento de Pesas & M., and WADA v. Federación
Colombiana de Levantamiento de Pesas & K., Award of 2 March 2012, para. 81; CAS 2010/A/2296,
S. Vroemen v. Koninlijke Nederlandse Atletiek Unie & Antidoping Autoriteit Nederland, Award
of 12 September 2011, para. 191; and CAS 2010/A/2108, JFF v. FIFA & X., Award of 2 February
2011, para. 182. As noted in commenting Art. R55 (para. 22, footnote 36 above), counterclaims
were deemed inadmissible even in cases where the applicable sports regulations still allowed
respondents to file counterclaims before the CAS.
7 Mavromati/Reeb, Art. R67, para. 4.
 1733

Article R68: Miscellaneous, II

CAS arbitrators, CAS mediators, ICAS and its members, CAS and its employees
are not liable to any person for any act or omission in connection with any CAS
proceeding.

I PURPOSE OF THE PROVISION

Article R68 is an exclusion of liability clause. Although the relationship between the 1
parties and the arbitrators (as well as the arbitral institution) is contractual in nature,
arbitrators fulfill a judicial function. When acting in such capacity, their status is
comparable to that of state court judges. The purpose of provisions excluding or
limiting the liability of arbitrators and other persons involved in the arbitral process
is, similar to the rules on the immunity of judges, to avoid that the adjudicators be
subjected to undue pressure in the discharge of their mandate, so as to preserve
their independence and the integrity of the decision-making process.

II VALIDITY AND SCOPE OF APPLICATION OF ARTICLE R68

Article R68 was inserted in the Code on the occasion of the 2010 revision.1 It is 2
similar to the exclusion of liability clauses contained in other sets of arbitration rules,
although the extent to which it purports to exclude liability appears to be broader
than that provided for under most other rules.2 For instance, the Swiss Rules specify
that arbitrators shall not be liable for acts or omissions in connection with an
arbitration, save where such acts or omissions constitute “deliberate wrongdoing
or extremely serious negligence”,3 whereas no such qualification is included in Art.
R68 of the Code.
The limitation in the Swiss Rules is in line with mandatory provisions of Swiss law, 3
according to which agreements excluding liability for deliberate wrongdoing and
gross fault are null and void.4 It is submitted that the same limitation should apply
to Art. R68, since, (i) by the operation of Art. R28, all CAS arbitrations have their
seat in Switzerland, meaning that the lex arbitri will be the Swiss law of arbitration,5
and, (ii) in line with the prevailing view, the arbitrator’s contract is governed by
the law of the seat of the arbitration (with which it is deemed to have the closest
connection).6 Thus the exclusion of liability provided for in Art. R68 is valid and

1 Cf. Mavromati/Reeb, Art. R67-70, para. 7.

2 As noted in the previous edition of this commentary, the absolute terms of the exclusion of
liability provision in the older versions of the ICC Rules have been tempered in the Rules’
latest (2017) edition, with the result that their Art. 41 (previously Art. 40) now provides that
the purported exclusion applies “to the extent [it is not] prohibited by applicable law”. For a
commentary on Art. 41 ICC Rules, see Spoorenberg, Chapter 17 (Part II) below.
3 Art. 45(1) Swiss Rules. For a commentary on Art. 45 Swiss Rules, see Jenny, Chapter 3 (Part
II) above.
4 Cf. Art. 100 Swiss Code of Obligations.
5 Cf. Art. R28.
6 Cf., for instance, Kaufmann-Kohler/Rigozzi, para. 4.184, with further references. Impliedly
taking the same position, BGE 140 III 75.
 1734 Arbitration in Switzerland – The Practitioner’s Guide

enforceable (only) to the extent it is compatible with Swiss law; i.e., for unintentional
wrongdoing and non-significant fault.7
4 Deliberate wrongdoing refers to intentional breaches of an arbitrator’s core duties,
and therefore includes cases of fraud, corruption, deliberate failure to disclose
information which may be relevant to the assessment of the arbitrator’s impartiality
or independence, or refusing to perform arbitral functions without valid reasons.8
5 The test of gross fault should be interpreted in light of the specific function of
arbitrators as adjudicators, namely keeping in mind that they cannot be treated as
mere agents of the parties.9 Only in cases where the arbitrators or any of the other
persons contemplated in Art. R68 utterly disregard the most basic rules of conduct,
including the general duty of care that would apply to any individual acting in the
same circumstances, will liability arise despite Art. R68’s exclusion.
6 More generally, and as the above examples illustrate, limitations of liability for
arbitrators are intended to operate only within the ambit of their judicial function
and activities.
7 The exclusion of liability under Art. R68 of the Code is expressly stated to apply to
CAS arbitrators, CAS mediators, the ICAS and its members, as well as the CAS and its
employees. Contrary to Art. 45 Swiss Rules, which expressly lists the secretary of the
arbitral tribunal among the persons whose liability is excluded, Art. R68 contains no
mention of CAS ad hoc clerks, who, in accordance with Art. R54(4), may be (and in
fact often are) appointed to assist panels in discharging their duties under the Code.10
Considering the function performed by ad hoc clerks in CAS arbitrations, including
the fact that they normally assist the panel in connection with the drafting of the
award,11 which they will often sign together with the arbitrators, it is submitted that
the language of Art. R68 could be revised to include them as well.

7 See also Mavromati/Reeb, Art. R67-70, para. 9. Contrary to the law in some other jurisdictions,
where any exclusion of liability clause exceeding the statutorily permitted scope is deemed
void altogether, Swiss law allows for the application of such clauses, provided their effect is
reduced to the standard admitted by Swiss mandatory rules of law.
8 Cf. BGE 117 Ia 166.
9 Peter, ASA Special Series no. 22, p. 12.
10 Cf. Art. R54(4), paras. 11–13 above.
11 Cf. the commentary on Art. R59 above.
 1735

Article R69: Miscellaneous, III

The French text and the English text are authentic. In the event of any discrepancy,
the French text shall prevail.

Article R69 provides a helpful indication by stating that French is the prevailing 1
language in case of discrepancy between the English and French texts of the CAS
Code, or where there are doubts as to the correct interpretation of a term or expression
used therein.1
This provision was included in the CAS Code as the latter was originally drafted in 2
French2 and then translated into English. It is a sensible one, since various provisions
in Code “borrow” language from the PILS (which exists in an official French version,
but is only “unofficially” translated into English). The same rule is stated in Art. S24
with regard to the Statutes of the Bodies Working for the Settlement of Sports-related
Disputes and in Art. 23 of the CAS Ad Hoc Rules.3

1 For an example of a case where reference was made to Art. R69 (Art. R68, as it then was) in
holding that the French language version should be referred to in order to establish the proper
meaning of a provision in the Code, cf. CAS 2008/A/1700&1710, DRV eV v. FEI & Ahlmann and
Ahlmann v. FEI, Award of 30 April 2009, para. 48 (concerning the use of the word “courier”
in Art. R31(1)).
2 Cf. Mavromati, CAS Bull. 2012/1, p. 40; Mavromati/Reeb, Art. R69, para. 13.
3 By contrast, the reverse solution has been adopted under Art. 23 of the Arbitration Rules Ap-
plicable to the CAS Anti-doping Division of 18 April 2016 (available at <http://www.tas-cas.
org/en/arbitration/anti-doping-division.html>), which provides that “[t]he English and French
texts are authentic. In the event of any discrepancy, the English text shall prevail”.
 1736

Article R70: Miscellaneous, IV

The Procedural Rules may be amended pursuant to Article S8.

1 Article R70, by reference to Art. S8, stipulates that the procedural rules in the CAS
Code (Arts. R27-R70) can only be amended with the approval of a majority of two
thirds of the ICAS members (Art. S8(2)).1
2 There have been a number of revisions of the Code since it was first adopted in 1984,
namely in 1994, 2004, 2010, 2011, 2012, 2013 and 2016.2 As noted in the previous
edition of this commentary, the increasing frequency of amendments to the Code’s
procedural rules in recent years is somewhat troubling, both because it seems to
be done in a rather piecemeal fashion, by incremental and punctual adjustments
in response to recent developments in the case law,3 and because there is still a
lack of information as to the exact scope, timing and modalities of the purported
involvement of “stakeholders and users of the CAS”4 in the revision process.

1 The same provision is contained in Art. 23 of the CAS Ad Hoc Rules, and in Art. 23 of the
Arbitration Rules applicable to the CAS Anti-doping Division, established in 2016. For detail
on the procedure followed to amend the rules under Art. S8 of the Code, see Mavromati/Reeb,
Arts. R67-R70, para. 16.
2 For a summary and commentary of the 2010 and 2012 revisions, cf., for instance, Reeb, Modifica-
tions essentielles, (on the 2010 and 2012 revisions), and Rigozzi, Jusletter of 13 September 2010
(on the 2010 revision). On the 2013 revisions, see the detailed discussions in Mavromati/Reeb
and the previous edition of this commentary. The CAS published a “marked-up version” of
the 2016 and 2017 editions of the Code (showing the changes made to the 2013 and 2016 Rules
respectively), available at: <http://www.tas-cas.org/en/arbitration/code-procedural-rules.
html>. Other than that, at the time of writing, the authors were not aware of any official CAS
commentary on the changes introduced in the latest editions of the Code.
3 On this point, cf. also Favre-Bulle, Recent Amendments to the CAS Code (2010–2012), Global
Sports Law and Taxation Reports 2012, p. 50, stating that “the absence of amendments for a
long period, followed by successive revisions at very short intervals may affect the credibility of
the arbitration institution and its rules.”
4 As mentioned by Coates, CAS Bull. 2012/1, Message of the ICAS President, p. 1, by reference
to the 2012 revision.