The ordinary arbitration procedure of the Court of Arbitration for Sport

Book Chapter

Reference

The ordinary arbitration procedure of the Court of Arbitration for Sport

KAUFMANN-KOHLER, Gabrielle, BARTSCH, Philippe

KAUFMANN-KOHLER, Gabrielle, BARTSCH, Philippe. The ordinary arbitration procedure of the Court of Arbitration for Sport. In: Blackshaw, Ian S. ; Siekmann, Robert C.R. ; Soek, Janwillem.

The Court of Arbitration for Sport : 1984-2004 . The Hague : T.M.C. Asser, 2006. p. 69-98

Available at:

http://archive-ouverte.unige.ch/unige:44087

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69

THE ORDINARY ARBITRATION PROCEDURE OF THE COURT OF ARBITRA TION FOR SPORT

Gabrielle Kaufmann-Kohler and Philippe Bartsch*

1. INTRODUCTION

Since 22 November 1994, the Code of Sports-related Arbitration¹ (the Code) has gov- emed the organization and arbitration procedures of the Court of Arbitration for Sport (CAS).² Pursuant to Articles S3 and S20 of the Code, the CAS is composed of two divi- sions: the 'Ordinary Arbitration Division', which handles disputes submitted to the 'ordi- nary arbitration procedure', and the 'Appeals Arbitration Division', which handles disputes submitted to the 'appeal arbitration procedure', i.e. disputes arising from deci- sions taken by sports bodies. ³

Prior to 1994, the CAS Statutes and Regulations⁴ provided for only one procedure for all disputes submitted to the CAS, whatever the nature of such disputes. The CAS was not divided into two different divisions, as it is today. Under the then applicable rules, the Claimant had to file its request with the CAS, together with the arbitration agreement. The request was then examined by a 'Requests' Panel', which ruled on the admissibility of the request,⁵ subject to a final decision⁶ by the panel of arbitrators which would then be called on to hear and rule on the dispute. ⁷ The procedure before the panel was, to a large extent,

*Gabrielle Kaufmann-Kohler is Professor, Geneva University Law School; Attorney at law, Partner with Schellenberg Wittmer, Geneva; President of the Swiss Arbitration Association and Philippe Bartsch is Attorney at Law, LL.M. (Harvard Law School), Associate with Schellenberg Wittmer, Geneva.

l The Code is divided into two parts: the Statutes of bodies working for the settlement of sports-related disputes (Arts. S 1 to S26) and the Procedural Rules (Arts. R27 to R69). Since its entry into force on 22 November 1994, the Code was amended slightly in 1995 and in 1999 (the 1999 amendments are highlighted in the second edition of the Code published by the TAS in January 2000). Sorne more important amendments have been made in 2003 'to incorporate certain long-established principles of CAS case law or practices consistently followed by the arbitrators and the Court Office'. (Reeb, M., 'The Court of Arbitration for Sport: History and Operation', in Digest of CAS Awards III (2001-2003) (Kluwer, The Hague 2004) p. xxxi. The revised version of the Code (published in the third edition of the Code published by the TAS in January 2004) came into force on 1 January 2004.

2 Under Art. S 11 of the Code, the mission of the CAS is to establish operation panels to provide for the resolution by arbitration and/or mediation of sports related disputes.

3 In addition to the ordinary arbitration procedure and the appeal arbitration procedure, the Code also pro- vides for an advisory procedure (which is non-contentious and allows certain sports bodies to seek advisory opinions from the CAS) and a mediation procedure.

4 The first Statutes and Procedural Regulations of the CAS were adopted by the !OC in 1983 and came into force on 30 June 1984. Bath were modified slightly in 1990. The Statutes applicable prior to the 1994 reform (hereinafter referred to as 'the previous Statutes') are available on the internet at <http://www.aafla.com/

OlympicinformationCenter/OlympicReview/1983/ore193/0RE193p.pdf> (last visited on 20 January 2005).

5 See Art. 20 of the previous Statutes.

6 Thus, the parties remained free to continue their action despite a rejection decision by the Requests' Panel.

7 It should be noted that the proceedings could begin with an attempt at achieving conciliation, either at the proposai of the parties or by decision of the CAS President if he considered that the dispute was suitable for a conciliation attempt (Arts. 29 et seq. of the previous Statutes).

l.S. Blackshaw, R. C.R. Siekmann and; W. Soek ( eds. ), The Court of Arbitration for Sport 1984-2004

© 2006, T·M·C-ÀSSER PRESS, The Hague, The Netherlands and the Authors

70 GABRIELLE KAUFMANN-KOHLER AND PHILIPPE BARTSCH

similar to the procedure usually followed in international commercial arbitrations ( exchange of written submissions, oral proceedings). As for the costs, the Statutes provided that the proceedings were free of charge, except in cases of pecuniary claims, where the parties had to contribute to the costs required for the settlement of the dispute, according to a propor- tion to be agreed upon between the parties and the President of the panel at the outset of the proceedings. ⁸

In 1994, with a view to making a clear distinction between disputes arising out of con- tracts and disputes arising from decisions taken by sports bodies,⁹ two separate divisions of the CAS with different procedural rules were created. This dual regime obviously gives rise to the question as to what disputes are submitted to which division. This question and the main features of the ordinary arbitration procedure before the Ordinary Division of the CAS are the focus of the present chapter.

2. THE ÜRDINARY DIVISION: MISSION, COMPOSITION AND APPLICABLE RULES

2.1 Mission

The mission of the Ordinary Division of the CAS is set forth in Article S20(a) of the Code:

'The Ordinary Arbitration Division constitutes Panels, whose task is to resolve disputes sub- mitted to the ordinary procedure, and performs, through the intermediary of its President or his deputy, ail other functions in relation to the smooth running of the proceedings conferred upon it by the Procedural Rules.' (Art. R27 et seq.)

While the Ordinary Arbitration Division is entrusted with the formation of panels called upon to resolve disputes under the ordinary arbitration procedure, the Appeals Arbitra- tion Division is entrusted with the formation of panels called upon to rule under the ap- peal arbitration procedure (Art. S20(b) of the Code).

The Court Office is responsible for assigning the disputes submitted to the CAS to one of these two divisions, according to their nature (Art. S20(2) of the Code). Without antici- pating the more detailed comments that will be made below (see section 3.2), the Court Office seems to limit the application of the appeal arbitration procedure to disputes arising out of decisions of sports bodies, which are of a disciplinary nature, and to submit all other types of disputes to the ordinary arbitration procedure. This being so, initially the ordinary arbitration procedure was meant for commercial sports-related disputes¹⁰ arising out of contracts which contain an arbitration clause¹¹ in favour of the CAS, or for which the par- ties have agreed, after the dispute has arisen, to submit the dispute to CAS arbitration.

8 See Art. 72 of the previous Statutes. This provision further stipulated that the proceedings could not be started before the signature of the agreement regarding the parties' contribution to the costs of the proceedings.

9 Kaufmann-Kohler, G., 'Réforme des structures et révisions des règles d'arbitrage', in International Confer- ence Law and Sport, 13-14 September 1993, Lausanne 1994, pp. 56-60, at pp. 58-59.

10 Art. R27 of the Code specifically mentions that the Procedural Rules only apply if the parties have agreed to refera 'sports related dispute' to the CAS. In this respect, it should be noted that since its creation, the CAS has never declared itself to Jack jurisdiction on the ground that a dispute was not related to sport (see Reeb, p. xx:xiii).

li The CAS recommends the following standard clauses for ordinary arbitration procedure: '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.'

THE ORDINARY ARBITRATION PROCEDURE OF THE CAS 71

2.2 Composition

The Ordinary Arbitration Division of the CAS is headed by a President. The President has a deputy, who can replace him in case he is prevented from carrying out his functions (Art. S6.2 of the Code). Bo th of them are appointed by the International Council of Arbi- tration for Sport (ICAS).¹²

The main role of the President of the Division is to take charge of the first steps once the arbitration is initiated but before the panel of arbitrators is constituted. Specifically, the President may have to rule on requests for interim relief (Art. R37(2) of the Code) or may have to appoint arbitrators in case one of the parties fails to appoint its arbitrator or in case the two party-appointed arbitrators fail to appoint the President of the panel (Art. R37(2) of the Code). The President must also confirm the appointment of arbitrators designated by the parties or by the party-appointed arbitrators (Art. R40.3 of the Code). Once their ap- pointment is confirmed, the arbitrators take charge of the arbitration procedure.

The ICAS is responsible for establishing the list of CAS arbitrators, ¹³ i.e. the persons who may be called upon to serve as arbitrators on panels. The arbitrators are not attached to a particular CAS Division and can therefore sit on panels called upon to rule under the ordinary procedure as well as those ruling under the appeal procedure.

2.3 Applicable mies

Ordinary arbitration proceedings are govemed by the Procedural Rules (which form an integral part of the Code), especially by Articles R27 to R37 (general provisions) and by Articles R38 to R46 of the Code (special provisions applicable to the ordinary arbitration procedure only).

As will be explained in more detail below, the rules applicable to the ordinary arbitration procedure grant the parties relatively broad autonomy. In particular, the parties are free to choose the method of appointment of the arbitrators¹⁴ (Art. R40.2 of the Code), they have autonomy with respect to the determination of the procedure to be followed before the panel1⁵ and they are free to choose the substantive law to be applied by the panel (Art. R45 of the Code).

lt should be noted that because the seat of the arbitration is

în

12 The CAS is placed under the aegis of the ICAS. The ICAS's main mission is to 'safeguard the indepen- dence of the CAS and the rights of the parties' and to look 'afterthe administration and financing of the CAS' (Art.

82 of the Code). The ICAS is composed of 20 members who are appointed by the International Federations, the Association of National Olympie Cornmittees, the International Olympie Committee, and co-opted from among people representing the athletes' interests, and from among individuals who are independent of any sports organi- zation but closely related to international arbitration practice (see Art. S4 of the Code).

13 The approximately 250 CAS arbitrators are appointed by the ICAS for a renewable period of four years.

Article Sl4 of the Code provides that the ICAS shall cal! upon 'personalities with 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 of the CAS working languages'. The procedure for the appointrnent of CAS arbitra- tors is similar to the procedure for the appointrnent of ICAS members (see Art. S14 of the Code and n.14 below).

14 Failing an agreement in this respect, the Procedural Rules provide for the number of arbitrators and for the method of their appointrnent.

15 In this respect, see section 5 below.

16 Art. R28 of the Code.

72 GABRIELLE KAUFMANN-KOHLER AND PHILIPPE BARTSCH

ary¹⁷ (on this issue, see section 4 below). Chapter 12 of the PIL Act is the so-called 'law of the arbitration' or' lex arbitri' .¹⁸ It addresses issues such as the validity of arbitration agree- ments, the availability of court assistance in support of the arbitration, due process, and the rules on setting aside of arbitral awards (grounds for setting aside and competent courts).

3. INITIATION OF ARBITRATION, AssIGNMENT TO THE ÜRDINARY DIVISION AND FORMATION OF THE PANEL

3.1 Initiation of arbitration

A party wishing to have recourse to CAS arbitration must file a request for arbitration with the Court Office of the CAS. Pursuant to Article R38 of the Code, the request for arbitration must contain: (a) the name and address of the Respondent; (b) a brief state- ment of the facts and legal arguments including a statement of the issues to be submitted to the CAS for determination; (c) the Claimant's request for relief; (d) a copy of the con- tract containing the arbitration agreement or of any other document providing for arbitra- tion in accordance with the Procedural Rules; and ( e) any relevant information about the number and choice of arbitrators.

Upon filing its request, the Claimant must also pay a Court Office fee of CHF 500 minimum, failing which the CAS will not proceed (Art. R64.l of the Code).

Once the request for arbitration is filed, the Court Office must assign the dispute to one of the two divisions of the CAS, depending on its nature (see section 3.2 below).

If the dispute is assigned to the Ordinary Division, Article R39 of the Code pro vides that unless it appears from the outset that no arbitration agreement referring to the CAS exists, the Court Office must tak:e the appropriate steps to set the arbitration in motion (Art. R39 of the Code). Specifically, it must communicate the request for arbitration to the Respondent and set time limits for the Respondent to submit any relevant information about the number and choice of arbitrators, as well as to file an answer to the request for arbitration. Such answer must contain a brief statement of defense, any defense of lack of jurisdiction ¹⁹ and any counterclaim (Art. R39 in fine of the Code).

17 As will be explained below, in cases where the seat of the arbitral tribunal is in Switzerland and where both parties have their domicile or habituai residence in Switzerland, Chapter 12 of the PIL Act does not apply. Such arbitrations are considered as domestic arbitrations within the meaning of Swiss law and are governed by cantonal law, which is embodied in the Intercantonal Treaty on Arbitration of 1969 (IAC, also known as the 'Condordat').

18 See for instance Kaufmann-Kohler, G., 'Identifying and Applying the Law Governing the Arbitration Procedure - The Role of the Law of the Place of Arbitration', in Improving the Efficiency ofArbitration Agree- ments and Awards: 40 Years of Application of the New York Convention, ICCA Congress Series No. 9 (The Hague 1999) pp. 336-365, at p. 337 (hereinafter Kaufmann-Kohler, 'Law governing the Arbitration Procedure'); Rüede, T. / Hadenfeldt, R., Schweizerisches Schiedsgerichtsrecht, 2nd ed. (Zurich 1993) p. 6, para. 3.I.

19 Under Art. 186(2) PIL Act, any objection to the arbitral tribunal's jurisdiction must be raised prior to any defense on the merits. Art. 186(2) PIL Act is mandatory. The parties can, however, by way of establishing proce- dural rules, specify until which point an objection to the arbitral tribunal's jurisdiction is deemed to be timely (see e.g. Wenger, W., in Berti, S., ed., International Arbitration in Switzerland, An Introduction to and a Commentary on Articles 176-194 of the Swiss Private International Law Statute (The Hague 2000) p. 474, n. 39 re: Art. 186 PIL). For CAS ordinary arbitration proceedings, a defense of lack of jurisdiction must therefore be raised in the answer, failing which it will be considered untirnely.

ORDINARY ARBITRATION PROCEDURE OF THE CAS 73 3.2 Assignment of a dispute to the Ordinary Division

As already mentioned, the Court Office assigns arbitration proceedings submitted to the CAS to one of the two divisions 'according to their nature'. In addition to Article S20 of the Code, which sets out the mission of the Ordinary Arbitration Division and of the Ap- peals Arbitration Divisions, the two following provisions of the Code are also of rel- evance with respect to such assignment:

Article R27 of the Code stipulates that

'[T]hese procedural Rules apply whenever the parties agreed to refera sports-related dispute to the CAS. Such dispute may arise out of an arbitration clause inserted in a contract or regula- tions or of a later arbitration agreement (ordinary arbitration proceedings) or involve an appeal against a decision rendered by a federation, association or sports-related body where the stat- utes or regulations of such bodies, or a specific agreement provides for an appeal to the CAS (appeal arbitration proceedings).'

- Article R47 of the Code provides that

'[A]n appeal against the decision of a federation, association or sports-related body may be filed with the CAS insofar as the statutes or regulations of the said body so provide or as the parties have concluded a specific arbitration agreement and insofar as the Appellant has ex- hausted the legal remedies available to him prior to the appeal, in accordance with the statute or regulations of the said sports-related body.'

Hence, the Code distinguishes between challenges to last instance decisions of sports bodies (which are submitted to the appeal arbitration procedure) on the one hand, and other sports-related disputes which arise out of an arbitration agreement (which are sub- mitted to the ordinary arbitration procedure) on the other hand. But the recent practice of the Court Office seems to limit the application of the appeal arbitr~tion procedure to dis- putes arising out of last instance decisions of sports bodies, which are of a disciplinary nature. 20 In other words, un der the recent Court Office' s practice, all other types of dis- putes, including disputes arising out of last instance decisions of sports organizations, which are not of a disciplinary nature (e.g. decisions regarding the official recognition of events or the qualification of athletes), are submitted to the ordinary arbitration proce- dure.21

The Secretary General of the CAS has summarized the distinction between disputes submitted to the ordinary arbitration procedure and the appeal arbitration procedure as follows:

'Generally, a dispute may be submitted to the Court of Arbitration for Sport only if there is an arbitration agreement between the parties which specifies recourse to CAS. [ ... ]

In principle, two types of disputes may be submitted to the CAS: those of a commercial nature, and those of a disciplinary nature.

The first category essentially involves disputes relating to the execution of contracts, such as those relating to sponsorship, the sale of television rights, the staging of sports events, players

20 See e.g. the decision rendered in the Fulham FC v. Olympique Lyonnais case (in which the Fulham FC challenged a decision of the FIFA relating to the transfer of a player of the Olympique Lyonnais), which reads as follows: '[A]s the dispute between Fulham and OL is not of a disciplinary nature, the CAS Court Office has assigned it to the Ordinary Arbitration division and is to be dealt with accordingly.' (CAS 2003/0/486, Fulham FC v. Olympique Lyonnais, pp. 9 and 32). For a detailed analysis of the Court Office's practice, which is not always consistent, see in particular Rigozzi, A., L'arbitrage international en matière de sport (Helbing & Lichtenhahn, Basle 2005) p. 475, nn. 925-926, with references (including references to CAS awards which are not published).

74 GABRIELLE KAUFMANN-KOHLER AND PHILIPPE BARTSCH transfers and relations between players or coaches and clubs and/or agents (employment con- tracts and agency contracts). Disputes relating to civil liability issues also corne under this cat- egory (e.g. an accident of an athlete during a sports competition).

Disciplinary cases represent the second group of disputes submitted to the CAS, of which a large number are doping-related. [ ... ]. In addition, disciplinary cases accounted for 40% of the total number of cases handled by the CAS, with commercial/contractual disputes representing 30%. '²² [emphasis added]

Given the clear wording of Articles S20, R27 and R47 of the Code, which do not distin- guish between disciplinary decisions and other types of decisions taken by sports bod- ies, 23 several commentators have rightly criticized the restrictive interpretation of the Court Office.²⁴ The correct application of the Code requires that all cases in which a Claimant challenges a decision of a sports goveming body be submitted to the Appeals Division, whether the decision under challenge deals with disciplinary matters or not. For instance, challenges of decisions regarding the official recognition of events or the quali- fication of athletes should be handled by the Appeals Division.

There are good reasons for the wording of Articles S20, R27 and R47 of the Code.

Indeed, by nature, the procedure for handling an appeal or a first instance case is not the same, which explains why man y rules in appeal procedure are different ( e.g. different rules on the appointment of arbitrators,²⁵ on the question of the applicable substantive law,²⁶ on the confidentiality of the proceedings²⁷). Hence, the impact of the Court Office' s decision is important.

According to Article S20 of the Code, the assignment by the Court Office of a dispute to one of the two divisions 'may not be contested by the parties or raised by them as a cause of irregularity'. If the parties are not satisfied with the Court Office' s decision, and ask the

21 Reeb, p. xxxiii.

22 According to the statistics of cases submitted to the CAS available on the CAS website, 61 cases submitted to ordinary arbitration procedure and 46 cases submitted to the appeal arbitration procedure were filed with the CAS in 2003. Sin ce 1995, 110 cases submitted to the ordinary arbitration procedure and 285 cases submitted to the appeal arbitration procedure have been filed with the CAS (statistics available at <http://www.tas-cas.org/en/stat/

frmstat.htm>, last visited on 31January2005).

23 The Court Office' s practice is also in contradiction with the wording of the Guide to Arbitration issued by the CAS, which specifically mentions that disputes arising out of disciplinary decisions as well as other types of last instance decisions of sports bodies are submitted to the appeal arbitration procedure (p. 10).

24 See e.g. Rigozzi, pp. 476-478, nn. 927-930.

25 On this issue, see section 3.3. Unlike under the appeal arbitration procedure, the parties are free to deter- mine the method of appointrnent of the arbitrators (Art. R40.2 of the Code) as well as the number of arbitrators (Art. R40.l of the Code). Under the appeal arbitration procedure, the parties' freedom is limited to the question of the number of arbitrators, but even in this respect, the parties' freedom is more limited that under the ordinary arbitration procedure (see Arts. R50, R53 and R54 of the Code).

26 On this question, see section 7 below. Whereas under the ordinary arbitration procedure the panel must apply the mies of law chosen by the parties or, failing an agreement, Swiss law (Art. 45 of the Code), under the appeal arbitration procedure the panel must apply the applicable regulations of the sports body whose decision is challenged and the rules of law chosen by the parties, or failing such an agreement, the law of the country in which the sports body has its business domicile (Art. 58 of the Code). It does not make sense to submit disputes arising out of last instance decisions of sports organizations, which are not of a disciplinary nature, to the ordinary proce- dure and hence to Swiss law. Rather, in such a case, the application of the applicable regulations of the sports body involved is appropriate.

27 On this issue, see section 10 below. Whereas the ordinary arbitration procedure is confidential (Art. R43 of the Code), which is appropriate in commercial disputes, the appeal procedure is not. The reason for reversing the confidentiality rule for the appeal procedure is the public interest of dispute resolution involving sports bodies in sports matters. Such interest does not only exist in disciplinary matters. This is another reason not to apply the ordinary arbitration procedure to disputes arising out of last instance decisions of sports organizations, which are not of a disciplinary nature.

THE ORDINARY ARBITRATION PROCEDURE OF THE CAS 75 Court Office to submit the dispute to the other division, the question arises whether the latter may reconsider its decision. If both parties agree to subrnit their dispute to the other Division, the Court Office should modify its decision. ²⁸ If only one party consents, the question is more difficult but it is submitted that there is no reason why the Court Office could not reconsider its decision. ²⁹

3.3 Formation of the panel

Unlike under the appeal arbitration procedure,³⁰ the parties are free to determine the method of appointment of the arbitrators (Art. R40.2 of the Code) as well as the number of arbitrators (Art. R40.1 of the Code) under the ordinary arbitration procedure.

As for the number of arbitrators, Article R40. l of the Code provides that the panel 'is composed of one or three arbitrators. If the arbitration agreement does not specify the num- ber of arbitrators, the President of the Division shall deterrnine the number, taking into account the amount in dispute and the complexity of the dispute'. Although Article R40.l of the Code only contemplates the parties' choice on the number of arbitrators 'in the arbi- tration agreement', it is subrnitted that the parties can also agree on the number of arbitra- tors subsequently, at least as long as the President of the Division has not made a decision in this respect. ³¹

As for the method of appointment of the arbitrators, the only lirnit to the parties' au- tonomy is that they must choose their arbitrators among the personalities listed on the list of CAS arbitrators established by the ICAS.³²

Failing an agreement between the parties on the method of appointment of the arbitra- tors, the arbitrators are designated as follows (it being specified that specific procedures, which will be discussed below in section 7, are applicable for the designation of arbitrators in multi-party arbitrations):

If, by virtue of the parties' agreement or a decision of the President of the Division, a sole arbitrator is to be designated, the parties may select him or her by mutual agree- ment within a time lirnit of 15 days set by the Court Office upon receipt of the request for arbitration. Failing an agreement within that time limit, the sole arbitrator is desig- nated by the President of the Division.

If, by virtue of the parties' agreement or a decision of the President of the Division, three arbitrators are to be appointed, each party appoints its arbitrator. The Claimant designates its arbitrator in its request for arbitration, while the Respondent designates its arbitrator within the time limit set by the Court Office upon receipt of the request

28 In particular because under Art. 182 PIL Act, the parties are free to deterrnine the procedure applicable before the arbitrators.

29 Rigozzi, p. 479, n. 932 (of the opinion that the Court Office can reconsider its decision if so requested by one party or even on its own motion).

30 See Arts. R50, R53 and R54 of the Code. Under the appeal arbitration procedure, the parties' freedom is limited to the question of the number of arbitrators. But the parties' freedom in tlùs respect is not unlimited.

Indeed, the President of the Division can decide that the dispute is to be submitted to a single arbitrator if it considers that the malter is an 'emergency' (Art. R50 of the Code).

31 Of the same opinion, Rigozzi, p. 481, n. 938.

32 It is difficult to understand why the Code imposes such a limit on the parties. Indeed, there is in our opinion no objective reason not to allow a party to appoint an arbitrator who is not listed on the CAS list of arbitrators.

76 GABRIELLE KAUFMANN-KOHLER AND PHILIPPE BARTSCH

for arbitration. The two party-appointed arbitrators then select the President of the panel by mutual agreement. Failing such designations, the President of the Division appoints the arbitrators and/or the President of the Panel.

The arbitrators selected by the parties or by other arbitrators must then be confinned by the President of the Division, who verifies that the arbitrators fulfil the independence and qualification requirements set out in Article R33 of the Code and that they appear on the list of arbitrators drawn up by the ICAS. lt is only once this confirmation is made that the Court Office takes notice of the formation of the panel³³ and that it transfers the file to the arbitrators (Art. R40.3 of the Code).

The Code also provides for a challenge mechanism falling within the powers of the ICAS or its board (Art. R34 of the Code), to guarantee the independence of the arbitrators after the preliminary control made by the President of the Division. The main features of the challenge mechanism³⁴ can be summarized as follows:

As for the grounds justifying the challenge of an arbitrator, Articles R33(1) and R34(1) of the Code provide that every arbitrator 'shall be and remain independent of the parties and shall immediately disclose any circumstances likely to affect his inde- pendence with respect to any of the parties' and that an arbitrator may be challenged 'if the circumstances give rise to legitimate doubts over his independence' .³⁵ This standard applies to both the party-appointed arbitrators and to the President of the Panel.

The Code uses the same wording as the rule on challenge of arbitrators contained in Chapter 12 of the PIL Act.³⁶ Thus, it is useful to review the Swiss Supreme Court prac- tice in this respect.³⁷ Like Article R33(1) of the Code, Article 180(1)(c) PIL Act only refers to independence of the arbitrators and not to their impartiality (as most other arbi- tration laws or rules do³⁸). But according to the drafters of Article 180(l)(c) PIL Act, im- partiality can be considered as the corollary of the independence of an arbitrator or, at least, usually results from such independence.³⁹ Under Swiss case law, circumstances that give rise to justifiable doubts as to the independence of an arbitrator must be based on concrete facts which can justify, objectively and reasonably, a lack of confidence on the part of a person reacting in a reasonable manner.⁴⁰ The criteria of independence must therefore be construed on a case-by-case basis, taking into account the objective circum- stances. Because the standard is based upon objective circumstances, it is not necessary

33 This is generally done in a first procedural order prepared by the Court Office.

34 For a detailed review of the challenge procedure and of the challenge grounds, see in particular Rigozzi, pp. 483-500, N. 945-977.

35 The IBA Guidelines on the Conflicts of Interests in International Arbitration are useful in this respect.

(available at <http://www.ibanet.org/images/downloads/guidelines%20text.pdf>, last visited 20 January 2005).

36 See Art. 180 PIL Act.

37 See Rigozzi, p. 484, N. 948, commenting an ICAS decision which expressly refers to Art. 180(1)(c) PIL Act (CAS 2002/A/383, IAAF v. CBAt & dos Santos, pp. 13 and 41). Moreover, a possible challenge against the award based on the ground that the arbitrators were not independent will be reviewed under Swiss case law in this respect.

38 See e.g. Art. 9 of the Swiss Rules of International Arbitration or Art. 12 of the UNCI1RAL Mode! Law.

39 See Voser, N., / Gola, P., 'The Arbitral Tribunal', in Kaufrnann-Kohler, G. / Stucki, B., eds., International Arbitration in Switzerland -A Handbookfor practitioners (The Hague 2004) pp. 33 et seq., at p. 42, with refer- ences.

40 See e.g. Swiss Supreme Court Decisions reported at ATF 113 la 407, ATF 188 II 359.

ORDINARY ARBITRATION PROCEDURE OF THE CAS 77 for an arbitrator to actually be biased, but only for there to be circumstances giving rise to the appearance of partiality and risk of bias.⁴¹ An arbitrator may objectively appear to be biased if, for example, he or she has a relationship of subordination with a party (the arbitrator is an executive of a party or member of the law firm representing a party), sub- stantive economic affiliations (the arbitrator is a member of the board of directors of a party or of an affiliated company) or ongoing professional connections (the arbitrator is a regular advisor of a party) exist. In a recent decision, the Swiss Supreme Court dismissed a challenge of a CAS award based on the alleged lack of independence of the arbitrators in the following terms.⁴²

'Under Art. 180 para. 1 (c) of the LDIP, an arbitrator may be challenged if the circumstances permit legitimate doubt about his independence. An arbitrator' s independence means that he should not be linked in any way to the party which appointed him [ ... ]. It can only be evaluated on a case-by-case basis; there are no absolute grounds for a challenge. Doubts about the inde- pendence of an arbitrator must be based on the existence of objective facts which are likely, for a rational observer, to arouse suspicion concerning the arbitrator's independence. On the other hand, the purely subjective reactions of one party should not be taken into account. The prin- ciples developed by the Federal Supreme Court on the basis of Art. 58 para. 1 (a) (now Art. 30 para. 1) of the Constitution concerning the challenge of State judges also apply to member of arbitral tribunals. However, account should be taken of the different context of the relations be- tween a State court judge or an arbitrator on one hand, and the parties and their lawyers on the other. For those involved in private arbitration, these relations are more frequent due to eco- nomic and professional necessities, with the result that they alone should not be considered a ground for a challenge [ ... ]. It has even been ruled that the friendship (use of familiar form of address plus mutual recommendations) between an arbitrator and the lawyer of one of the par- ties was, in principle, insufficient grounds for a challenge [ ... ].

Generally speaking, a judge cannot be challenged simply on the ground that he dealt with one of the parties in a previous case [ ... ]. The same should apply to the field of arbitration, particu- larly international arbitration [ ... ]. In the small world of international arbitration, individuals of- ten find themselves working together on different cases; as the IOC points out, it is not uncommon for the same person to be an arbitrator in one particular case and the counsel to a party in another case, pleading in front of one of his fellow arbitrators from the previous case.

Such contact will inevitably become even more regular if, as in the CAS, the arbitrators appear on a closed list and need to have legal training as well as recognised competence with regard to sport. The fact that each member of the Panel that dealt with the plaintiffs' cases was, during the Olympie Garnes, part of the CAS ad hoc division alongside the lawyer of one of their oppo- nents (IOC) or the associate of the lawyer of their other opponent (FIS) is therefore not, in it- self, likely to permit legitimate doubt concerning their independence, particularly since [the three] arbitrators [ ... ] have all been part of Panels that have rendered awards unfavourable to the IOC. Additional circumstances would be required if these arbitrators were to be challenged.

Those mentioned by the plaintiffs - that the arbitrators shared meals together, probably stayed at the same hotel and travelled together - are certainly not sufficient. Given the type of people involved, it can be assumed that these contacts are unlikely to affect their independence of mind and opinion. In fact, according to the case law of the Federal Supreme Court, it should be linked to their appointrnent when they are required to render concrete decisions in the discharge of their duties.

Therefore, the challenge of the arbitrators who formed the Panel appears clearly unfounded.

By dismissing it themselves, the arbitrators concerned did not in any way infringe procedural public policy.'

41 See e.g. Swiss Supreme Court Decisions reported at ATF 114 la 50, 53; ATF 117 la 184; ATF 120 Ia 184.

42 Swiss Supreme Court of 27 May 2003, reported at ATF 129 III 445. An English translation is reported in Digest of CAS Awards III (2001-2003), pp. 674 et seq., at pp. 691-692 (emphasis added).

78 GABRIELLE KAUFMANN-KOHLER AND PHILIPPE BARTSCH As already mentioned, the challenge procedure falls within the exclusive powers of the !CAS or its board (Art. R34(2) of the Code). lt should be noted that in the case quoted above, the panel decided itself on its own challenge. The Swiss Supreme Court ruled that the fact that the panel decided on its challenge did not violate proce- dural public policy and emphasized that according to case law, a tribunal which is challenged en bloc may itself declare the request inadmissible if it is unreasonable or clearly unfounded, even though the applicable procedural rules provide that the deci- sions should be taken by another authority.

The challenge procedure must be brought in writing within seven days after the ground for the challenge has become known (Art. R34(1) of the Code).⁴³ As men- tioned by the Swiss Supreme Court quoted above, this refers both to the grounds for a challenge that the party concemed was actually aware of and to those it might have become aware of if it had paid sufficient attention.

The ICAS or its board rules on the challenge after the other parties, the challenged arbitrator and the other arbitrators have been invited to submit written comments. It provides brief reasons for its decision (Art. R34(2) of the Code).

4. SEAT AND LANGUAGE

4.1 Seat or place of the arbitration

Article R29 of the Code provides that the seat of the CAS and of each arbitration panel shall be in Lausanne, Switzerland. Article R29 of the Code further stipulates that, if cir- cumstances so warrant and after consultation with the parties, the President of the panel (or, if he or she has not yet been appointed, the President of the relevant Division) may decide to hold a hearing in another place. The choice of a Swiss seat in Article R29 has three legal consequences.

4.1.1 The arbitration proceedings are governed by Chapter 12 of the PIL Act whenever at least one party is nota Swiss domiciliary

The first and main consequence of a Swiss seat is that the arbitration proceedings will be governed by Chapter 12 of the PIL Act whenever at least one party is not a Swiss domi- ciliary. Indeed, under Article 176 PIL Act, Chapter 12 of the PIL Act applies whenever the seat of an arbitration is in Switzerland and at least one of the parties did not have its domicile or habitual residence in Switzerland at the tirne of the conclusion of the arbitra- tion agreement.

In other words, Swiss law adopts a subjective test of intemationality dependent on the domicile of the parties, as opposed to an objective test dependent on the nature of the dispute. This means that an arbitration between an athlete who is not a Swiss national but who lives in Switzerland and an International Federation (IF) which is headquartered in Switzerland would be deemed a domestic Swiss arbitration, even if the dispute arises ex- clusively out of a decision taken on the occasion of a competition outside Switzerland. As

43 This is in line with Swiss law, which requires that a party wishing to challenge an arbitrator cite the ground for challenge imrnediately after becoming aware of it (see e.g. Swiss Supreme Court Decisions reported at ATF 128 V 82; ATF 126 III 249).

THE ORDINARY ARBITRATION PROCEDURE OF THE CAS 79 a result, such domestic arbitration would be govemed by the Swiss Intercantonal Arbitra- tion Convention (the IAC), and in the future by Chapter III of the forthcoming Act on Civil Procedure.⁴⁴ Under the IAC, this is an unsatisfactory situation especially because the grounds for setting aside an award are less restrictive than under the PIL Act. Assume two athletes, one domiciled in Switzerland, the other one in France, are banned for doping by an IF based in Switzerland and both challenge the ban before CAS. One athlete's arbitration will be govemed by the PIL Act, while the other one will be subject to the IAC. This is a difference that introduces unequal procedural treatment of the athletes without any objec- tive reason. To avoid this situation under the forthcoming Civil Procedural Act, the Swiss Arbitration Association (ASA) has made certain proposals in the course of the legislative process.⁴⁵ One proposal would be to allow parties to opt out of the domestic act and into the PIL Act. Another one is that the domestic Act adopt the same grounds for setting aside awards than the PIL Act. lt remains to be seen whether the Swiss Ministry of Justice and the Swiss Parliament will follow these proposals.

Article R29 of the Code distinguishes between the seat of the arbitration and the place where the arbitration proceedings are physically conducted, which is in line with Swiss arbitration law. Indeed, Swiss law, like the majority of modem arbitration laws, considers the seat as a legal, immaterial connecting factor between the arbitration and the legal sys- tem of a given country.⁴⁶

The Swiss Supreme Court has stressed the distinction between the legal localization of an arbitration and the convenient geographical locality for hearing in the following terms:

'By choosing a Swiss legal domicile for the arbitral tribunal, the parties manifestly intended to submit their dispute to Swiss arbitration law, not to provide for an exclusive location for meet- ings among arbitrators at the place of arbitration [ ... ] [T]he determination of a given place of arbitration is of significance to the extent that the award is deemed to be rendered at such place.

It is irrelevant that a hearing was effectively held or that the award effectively issued there. '⁴⁷ The distinction between the legal localization of an arbitration and the convenient geo- graphical locality for hearings was also recognized by the Court of Appeal of New South of Wales in the matter of Angela Raguz v. Rebecca Sullivan, relating to a dispute be- tween those two judokas for the selection of the Australian representative for the Sydney Olympie Garnes, dispute which had been resolved in favor of Rebecca Sullivan by a CAS panel. The Court of Appeal upheld the choice of Lausanne as the seat of the arbitra- tion, although the arbitration had been conducted entirely in Australia and the dispute in- volved only Australian nationals, therefore recognizing and emphasizing the 'vital

44 Indeed, it is expected that the IAC will soon be replaced by Chapter III of the forthcoming Federal Civil Procedure Act(' Avant-projet de la commission d'expert et rapport accompagnant l'avant-projet de la commission d'expert', June 2003, available at <http://www.ofj.admin.ch/themen/v-zivilp/entw-zpo-f.pdf>, last visited 30 January 2005).

45 Paper presented by ASA to the Swiss Federal Ministry of Justice, dated January 2004.

46 See e.g. Lalive, P./ Poudret, J.-F. /Reymond, C., Le droit de l'arbitrage interne et international en Suisse (Lausanne 1989) pp. 294-295, N. 5 re: Art. 176 PIL); Bucher, A./ Tschanz, P.-Y., International Arbitration in Switzerland (Basle 1988) pp. 28-29, N. 34-35; Kaufmann-Kohler, Law governing the Arbitration Procedure, pp. 343-346 with references to Swiss judicial practice; Kaufmann-Kohler, G., Le lieu de l'arbitrage à l'aune de la mondialisation -Réflexions à propos de deuxfonnes récentes d'arbitrage, in 1998 Rev. arb., pp. 517 et seq., at pp.

521-524 (hereinafter Kaufmann-Kohler, Le lieu de l'arbitrage à l'aune de la mondialisation).

47 Swiss Supreme Court decision of 24 March 1997, published in 1997 ASA Bull., pp. 316/329-330, writer's translation.

80 GABRIELLE KAUFMANN-KOHLER AND PHILIPPE BARTSCH

distinction between the so-called place (or seat) of the arbitration and the place or places where the arbitration may hold hearings, consultations or other meetings' .⁴⁸

The fact that all CAS panels have their seat in Lausanne makes sense, because all parties involved in CAS arbitrations benefit from a uniform regirne in terms not only of arbitration rules but also of municipal rules applicable to arbitration proceedings^49• Such equal treat- ment in matters of dispute resolution is in line with the equal standards that govem sports competition more generally. Moreover, as noted by several commentators, such uniformity may contribute to the development of a unitary system of sports dispute resolution⁵⁰ and of a universal jurisprudence of sports law. ⁵¹

4.1.2 Jurisdiction of the Swiss local courts in aid and contra! of the arbitral pracess The second le gal consequence of fixing the seat in Switzerland is that it gives jurisdiction to the Swiss local courts in aid and contra! of the arbitral pracess. Under the PIL Act, the courts at the seat of the arbitration, i.e. in Lausanne, have jurisdiction to appoint or remove arbitrators if the parties have not agreed otherwise (Art. 179(2) PIL Act), or to take any other action in support of the arbitration, e.g. by ordering a recalcitrant witness to appear before the arbitral tribunal⁵² (see Art. 184(2) and 185 PIL Act). Although available, such court powers play no role in the practice of CAS arbitrations, mainly be- cause the appointment and removal of the arbitrators is exclusively entrusted to CAS un- der the Code and the other aid functions are most seldom resorted to in practice.

The same is not true of the jurisdiction of the Swiss courts to control the award. The PIL Act affords the parties certain remedies against the awards. Indeed, under Article 190 PIL Act, a party may bring an action to set aside an arbitral award on the grounds that the arbitral tribunal was not properly constituted, had no jurisdiction, ruled beyond the claims submitted to it, failed to decide on certain clairns, failed to grant due process, or rendered an award irreconcilable with international public policy.⁵³ Unless the parties agree otherwise, the setting aside proceedings must be brought before the Swiss Supreme Court (Art. 191 PIL Act).

It should also be noted that Article 192(1) PIL Act allows the parties to an arbitration who are all domiciled outside of Switzerland to waive any challenge to an award (or to exclude certain grounds for challenging the award) rendered by an arbitral sitting in Swit- zerland, provided the waiver is express and clearly refers to the setting aside action under Article 191 PIL Act.⁵⁴

48 Angela Raguz v. Rebecca Sullivan & Ors, 2000 NSECA 240, also reported and discussed in Kaufrnann- Kohler, G., Arbitration at the Olympics -Issues of Fast-Track Dispute Resolution and Sports Law (Kluwer Law International 2001) pp. 51 et seq.

49 On the advantages of having a seat in Switzerland for al! CAS arbitrations, see e.g. Kaufmann-Kohler, G., Le lieu de l'arbitrage à l'aune de la mondialisation, pp. 526-527; Kaufmann-Kohler, Law goveming the Arbitra- tion Procedure, p. 348; McLaren, R., 'Sports Law Arbitration by CAS: is it the Same as International Arbitra- tion?', 2001 Pepperdine Law Review, pp. 101-114, at pp. 104-106; Rigozzi, pp. 237-238, N. 453-454.

so Beloff, M./ Kerr, T. / Demetriou, M., Sports Law (Oxford 1999) pp. 268-269.

51 Pathak, R., 'The CAS Ad Hoc Division at the Olympie Garnes', in CAS Seminar 2001, 6-7 November2001 (Lausanne 2002) pp. 121-135, at pp. 127-128.

52 See e.g. Roney, D., /Müller, A.-K., 'The Arbitral Procedure', in Kaufrnann-Kohler, G. / Stucki, B., eds., International Arbitration in Switzerland -A Handbookfor practitioners (The Hague 2004) pp. 59-60.

53 On setting aside proceedings, see in particular Geisinger, E. / Frossard, V., 'Challenge and Re vision of the Award', in: Kaufrnann-Kohler / Stucki, pp. 135 et seq.

54 For more detailed comments on this issue, see section 7.4 below.

ARBITRATION PROCEDURE OF THE CAS 81 4.1.3 The award is deemed to have been rendered in Switzerland within the meaning of

the 1958 New York Convention

Finally, the fact that the seat of the arbitration is in Switzerland not only triggers the ap- plication of Chapter 12 PIL Act as the law of the arbitration and the jurisdiction of the local courts, but also means that the award is deemed to have been rendered in Switzer- land within the meaning of the 1958 New York Convention on the recognition and en- forcement of foreign arbitral awards (the 'New York Convention').⁵⁵ Switzerland must therefore be considered as the country of origin of CAS awards within the meaning of Article V(e) of the New York Convention.

4.2 Language of the arbitration

Article R29 of the Code provides that the CAS working languages are French and En- glish and that in the absence of an agreement between the parties regarding the language of the arbitration, the President of the panel (or, if he has not yet been appointed, the President of the Division) shall select one of these languages at the outset of the proceed- ings taking into account all pertinent circumstances.

The parties may also choose another language by agreement. But since the choice of another language requires the agreement of the panel, it is recommended to bear this in mind when choosing the arbitrators and to inform the CAS as soon as the proceedings are initiated. lt should also be noted that the use of another language may give rise to additional translation and interpretation costs and that the panel may order that the parties bear all or part of these costs (Art. R 29.2 of the Code).

Finally, the panel may order that all documents submitted in other languages than that of the procedure be filed together with a certified translation in the language of the proceed- ings.

5. PROCEDURE BEFORE THE PANEL

Once the Respondent has filed the answer to the request for arbitration and the panel is constituted, the ordinary arbitration procedure consists, as a general rule, of two succes- sive phases, namely a written phase (section 5.1 below) and a hearing (section 5.2 be- low). The question of the panel's power to order interim measures will be dealt with separately in the next Section (section 6 below).

5.1 Written phase

The main features and the main steps of the written phase of the ordinary procedure are set forth in Article R44 of the Code and can be summarized as follows:

- Upon receiving the file from the Court Office, the President of the panel, if appropri- ate, issues directions in connection with the written submissions in a procedural or- der.

55 Ehrat, F., in Berti, p. 309, N. 17 re: Art. 176 PIL; Lalive / Poudret /Reymond, p. 299, N. 14 re: Art. 176 PIL.

82 GABRIELLE KAUFMANN-KOHLER AND PHILIPPE BARTSCH

As a general rule, there is (in addition to the request for arbitration and the answer to the request for arbitration) one statement of daim and one response.

However, 'if the circumstances so require', a further exchange of written submissions may be ordered (Art. R44.l(l) of the Code).

The parties may raise new daims not contained in the request for arbitration and in the answer to the request for arbitration in the statement of daim and in the response.

Thereafter, no party may raise any new daims without the consent of the other party (Art. R44.l(l) infine of the Code).

As a general rule, together with their written submissions, the parties must file all evi- dence upon which they intend to rely, specify any witnesses and/or experts they in- tend to call, file their witness statements,⁵⁶ and state any other evidentiary measure which they request (Arts. R44.1 (2) and (3) of the Code).

After the exchange(s) of the written submissions, the parties are no longer authorized to produce further written evidence, except by mutual agreement or if the panel so authorizes on the basis of 'exceptional circumstances' (Art. R44.1(2) in fine of the Code).

The Procedural Rules grant the panel the authority to order the production of docu- ments which are in the custody or under the control of one party, either upon request by the opposing party (Art R44.3(1) of the Code) or on its own motion (Art. R44.3(2) of the Code). As is usual in international arbitration,⁵⁷ the party seeking the produc- tion of documents which are in the custody or under the control of the opposing party must establish that the documents are likely to exist and that they are relevant to the outcome of the dispute. It is also necessary that legitimate interests of the party op- posing production be considered by the panel when deciding on a request for produc- tion of documents. It should be noted that even though the IBA 1999 Rules on Taking of Evidence in International Arbitration are not applicable to CAS ordinary arbitrations, they illustrate the standards that have emerged from practice in interna- tional arbitration, so that they may provide useful guidance to CAS panels and par- ties.

The question arises whether the panel has power to issue orders to third parties. Un- der the Procedural Rules and Swiss law of arbitration, the panel lacks the power to order third parties to produce documents. Could the courts help? For practical rea- sons, not really. It is true that Swiss courts at the place of arbitration have jurisdiction to assist the arbitration process (Art. 184(2) PIL Act). However, such judicial assis- tance is rarely an effective remedy. Indeed, it is unlikely that the third party will be

56 Witness statements have become matter of course in international arbitration. Their purpose is threefold:

first, they enable the parties and the witnesses to narrow down the number of issues to be addressed at the hearing;

second, they assist the parties and the arbitral tribunal in determining whether the testirnony of a specific witness is necessary; third, they assist the parties and the arbitral tribunal in preparing the hearing. On witness statements, see e.g. Lévy, L., 'Witness statements', in De lege ferenda: réflexions sur le droit désirable en l'honneur du professeur Alain Hirsch (Genève 2004) pp. 95-104.

57 On document production issues, see e.g. King, B. / Bosman, L., 'Repenser la problématique de la discov- ery dans!' arbitrage international, au-delà du clivage entre common law et droit romain', 2001 !CC Bull. (Vol. 12, N. 1), pp. 25 et seq.; Jarvin, S., 'Die Praxis der Beweiserhebung in intemationalen Schiedsverfahren B Ein einführender Beitrag zum Thema Disclosure of Documents', in Bockstiegel, K.-H., ed., Beweiserhebung in internationalen Schiedsveifahren (2001) pp. 87 et seq.; Kaufmann-Kohler, G. / Bartsch, P., 'Discovery in interna- tional arbitration: How much is too much?', 2004 SchiedsVZ, pp. 13 et seq.; Sachs, K., 'Use of documents and document discovery: 'Fishing expeditions' versus transparency and burden ofproof', 2003 SchiedsVZ, pp. 193 et seq.

THE ORDINARY ARBITRATION PROCEDURE OF THE CAS 83 within the reach of Swiss courts. Moreover, the 1970 Hague Convention on the tak- ing of evidence abroad in civil and commercial matters is of no assistance, as arbitra- tors are not authorized to resort to the treaty mechanism. Except in rare countries in which courts are empowered to render assistance to arbitrations pending abroad,⁵⁸ it will be difficult, not to say impossible, to compel third parties to submit documents.

The parties are free to agree on different modalities regarding the conduct of the proceed- ings. 59 One example of the parties' autonomy is the possibility for them to agree on an expedited procedure. lndeed, under Article R44.4 of the Code, with the consent of the parties, the panel may proceed in an expedited manner, for which it shall issue appropri- ate directions.

The measures taken by the panel to determine the structure and course of the proceed- ings are generally incorporated into one or several procedural orders. Such procedural or- ders are not considered arbitral awards, so that they cannot be appealed. ⁶⁰

5.2 Hearing

The written phase is generally (but not necessarily) followed by a hearing. Indeed, Ar- ticle R44.2 of the Code provides that as a general rule there is a hearing, but that after consulting with the parties, the panel may decide not to hold a hearing if it deems itself to be sufficiently informed. In practice, it is rather unusual for a panel not to hold a hearing.

If the panel decides to hold a hearing, the President of the panel must issue directions with respect to the hearing and in particular set the hearing date (Art. R44.2(1) of the Code).

Before issuing these directions, the panel might find it useful to convene a pre-hearing telephone or video-conference with the parties, for the purpose of discussing the procedure, schedule, tirne allocation⁶¹ and any outstanding administrative aspect⁶² of the hearing.

As a general rule, there is only one hearing during which the panel hears the parties, the witnesses, and the experts as well as the parties' final arguments (Art. R44.2(1) of the Code). The features and modalities of the hearing can be summarized as follows:

58 So German Courts (see para. 1050 ZPO). By contrast, in the United States, Courts in New York (in NEC v.

Bera Stearns & Co., 165 F.3d 184, 1999 U.S.App. LEXIS 933 (2nd Cir. N.Y. 1999) and in Texas (in Republic of Kazakhstan v. Biedermann !nt'!, 168 F.3d 880, 1999 U.S.App. LEXIS 4252 (5th Cir. Tex. 1999)) have held that local courts would not grant assistance to a foreign arbitral tribunal, as it did not qualify as an 'international tribunal' under the relevant provision of the Federal Rules of Civil Procedure (28 UCC '1782).

59 Under Art. 182(2) PIL Act, determination of the procedure by the arbitral tribunal is subordinate to the arrangements agreed upon by the parties, i.e. the arbitral tribunal is authorized to make such a determination only to the extent that the parties have not made an agreement (in this respect, see e.g. Schneider, M., in Berti, p. 407, N. 33; Kaufmann-Kohler, G., 'Qui contrôle l'arbitrage? Autonomie des parties, pouvoirs des arbitres et principe d'efficacité', in Liber Amicorum Claude Reymond -Autour de l'arbitrage (Litec Paris 2004) pp. 153-165.

60 Schneider, M., in Berti, p. 410, N. 47; Lalive / Poudret /Reymond, p. 423, N. 4 re: Art. 190).

61 As for tirne allocation and tirne management for hearings, panels may adopt different methods, preferably in consultation with the parties. One of the best-known methods used in international commercial arbitration is the eponymous 'Bockstiegel Method', which involves allocating a fixed amount of hearing tirne to each party and then providing the parties with broad autonomy to use their allocated tirne as they wish, for opening statements, examination of witnesses and closing arguments. The tirne allocated to each party is strictly enforced and the arbitral tribunal must be active in order to suppress any form of disruption by counsel, witnesses, or indeed the arbitrators (Paulsson, J., The Timely Arbitrator: Reflections on the Bockstiegel Method, Law of International Business and Dispute Settlement in the 2/st Century (Carl Heymanns Verlag KG, Cologne 2001) pp. 607-614;

Kaufmann-Kohler, G., 'Beyond Gadgetry - Substantive New Concepts to Improve Arbitral Efficiency', 5 The Journal of World lnvestment & Trade (2004) No. 1, pp. 60 et seq., at p. 71.

62 For example if a witness needs to be assisted by an interpreter.