Islj 2009 3-4 - TMC Asser Instituut

To secure the appreciation of CAS it was needed to improve its
integrity, which was achieved in 1994 with the signing of the so-called
Paris Agreement. It included the installation of an extra body between
the IOC and CAS, dealing with ordinary arbitration and also in
charge of the CAS administrative and financial matters, so as to distance
and guard CAS sufficiently against IOC interference.
This newly installed entity is the International Council of
Arbitration for Sports (ICAS). The preamble of the Paris Agreement
reads as follows: “with the aim of facilitating the resolution of disputes
in the field of sport, an arbitration institution entitled the “Court of
Arbitration for Sport” (hereinafter the CAS) has been created, and that,
with the aim of ensuring the protection of the rights of the parties before
the CAS and the absolute independence of this institution, the parties
have decided by mutual agreement to create a Foundation for international
sports-related arbitration, called the “International Council of
Arbitration for Sport” (hereinafter the ICAS), under the aegis of which
the CAS will henceforth be placed”. 61
The ICAS and the CAS together, have over 300 arbitrators from 55
countries, chosen for their specialist knowledge of arbitration and
sports law. CAS tribunals try an average of 200 cases annually, 62 apply
Swiss law and most of the time following the stare decisis principle 63 ,
observing previous decisions in similar cases. However, CAS tribunals
frequently also decide ex aequo et bono. 64 In addition, both the ICAS
and the CAS take into account the fundamental doctrines of international
Sports Law, viz. Access - Fair play - Olympism - Commerce 65 .
4.3. Legal options in an eventual dispute with the IOC
The basic rule is that all parties recognized by the IOC have accepted
the Olympic Charter, of which Rule 15.4 declares the CAS to be the
only instance to hear disputes. Both institutes are operating under the
Code of Sports-related Arbitration. Among other information, this
Code indicates that the CAS has two instances, the Ordinary Division
and the Appeal Arbitration Division. Based on the CAS Rule R45 parties
to a dispute can decide to the applicable law and in absence CAS
may apply Swiss law. 66 It is also mentioned that in rare instances, CAS
decisions can be appealed to the Swiss Federal Tribunal. In addition
to the described courts, the CAS also operates Ad Hoc Panels at
Olympic sites. Since these are not relevant to my Thesis, I further disregard
them.
In the event that an eligible party wants to file a case at the CAS, it
is not compulsory to hire a lawyer for this 67 . However, from reports
and listening to a few who have been in procedures at this tribunal, it
is advisable to have a lawyer because the knowledge of arbitration and
Sports Law, a non codified law system, to great extend related to
International Law, referred to as Lex Sportiva, considered a lex specialis.
68 Its principles contain among others the principles of good
faith and fair play, considered firm doctrines in sports globally. The
more arbitrational style of the CAS courts calls for specific expertise,
most regular lawyers do not master.
The CSF is not yet a party to the Olympic Charter, so it does not
fall under the sphere of action of Rule 15.4, and as a consequence it
cannot unwillingly be bound by the Charter. However, in accordance
61 http://www.tas-cas.org/en/
infogenerales.asp/4-3-237-1011-4-1-1/
5-0-1011-3-0-0/.
62 www.faqs.org/sports-science/
Ce-Do/Court-of-Arbitration-for-Sport-
CAS.html.
63 I. Blackshaw. International Sports Law
Journal, Volume 1-2 (2008), p. 20.
64 Ex aequo et bono in Latin means
“according to the right and good “ also
“from equity and conscience”, it is a
legal term often used in arbitration , it
refers to the room to arbitrators for dispense
with consideration of the law and
to decide on solely what they consider to
be fair and equitable in a case.
65 O. Olatawura. International Sports Law
Journal. Volume 3-4 (2008), p.130-143.
66 www.tas-cas.org/d2wfiles/document/
281/5048/0/
3.1%20CodeEngnov2004.pdf
67 www.tas-cas.org/d2wfiles/document/
281/5048/0/3.1%20CodeEngnov2004.pdf
68 O. Olatawura. International Sports Law
Journal. Volume 3-4 (2008), p.130-143.
69 www.tas-cas.org/d2wfiles/document/
281/5048/0/3.1%20CodeEngnov2004.pdf
70C.F. Amerasinghe. Principles of the institutional
law of international organization
(1996) , p. 226-229.
71 en.wikipedia.org/wiki/
List_of_active_autonomist_and_
secessionist_movements.
with the CAS Procedural Rule R27 69 the CSF has the option to file
the case at CAS, which is a far less costly institute than Federal Swiss
Courts. Note that the CAS is an arbitration tribunal, applying internationally
accepted principles of arbitration, constitutionally available
to hear and decide every sports related dispute presented to them,
provided the parties comply with the regulations of the Code of
Sports Related Arbitration.
The other option is to file the case at the Swiss Federal Court, following
the lex loci delicti commissi principle of international private
law 70 , which means the jurisdiction where the conflict arises ( if the
CSF request will be denied, this will be Lausanne - Switzerland ) is
indicative for the choice of forum and applicable law. It must be clear
that based on this international law principle mentioned, it is impossible
for the CSF to take the case to our Court in Curaçao upon rejection
by the IOC.
Churandy Martina, after his 200 mtr race in Beijing in 2008.
Churandy is from Curaçao, affiliated to and trained by a CSF member
federation. It is time his chest reads Curaçao.
Or will he be forced to carry the Stateless flag ??
5. Rule 31.1 and our Autonomy
The previous information contained the more formal frame of the
Olympic organization and has mentioned the available legal provisions
in the specific case of IOC recognition denial. In anticipation of
a possible arbitration or lawsuit procedure by the CSF, it was also
emphasized that as early as the initial application for recognition,
experienced legal support will be crucial.
In this Section I will mention why Charter Rule 31.1 was included
in the Charter and elaborate on the conceptions independent and
autonomous state as described in international public law literature
and customaries, explaining also how little difference there is today
between these two conceptions.
5.1. Originating background of Rule 31.1
This Rule has been altered in 1996 following years of increasing political
pressure on IOC regarding several requests for recognition. Until
that date, recognition was not linked to the status of a country as can
be seen on the IOC answer hereunder. According to verbal information
received from officials of the IOC Legal Affairs Department, the
IOC was confronted with a number of conflicting requests in the
early 80’s. The majority of these applications came from rebellious
groups occupying part of an existing country trying to declare a state
and looking around for supportive recognition by other countries.
These efforts of state recognition appeared not so easy and as a result,
many of these separation movements creatively thought to have found
a better way by applying for Olympic recognition. Among them were
well-known groups like ETA (Basque - Spain) , Polisario (West-Sahara/
Morocco), IRA (North Ireland - Great Britain), FARC (Colombia),
and many other groups from all over the world. 71
In addition, there were also countries and cities which declared
themselves independent, dissociating from their authentic country.
Most were, and some still are, in the middle of tensional conflicts with
their country of origin, among others: Taiwan and Macau (both
China); a number of new Soviet countries; Yugoslavia fractions; other
former Eastern European countries with internal separation conflicts
and the PLO in the Middle East. I have contacted IOC on the origin
of Rule 31.1 and received the following answer. (see page 48)
IOC had to adjust its regulations otherwise the organization would
largely be misused by several of these parties, de jure not in compliance
with the internationally accepted standards of statehood. I have
tried to get my hand on the preparatory notes of the proposal for the
alteration of Rule 34 , renumbered to 31.1, but was unsuccessful.
On page 48 at the right is the text of page 5 of the minutes of
Session 105th of 1996 held in Atlanta.The additional remark of the
Chairman of the IOC Legal Commission Judge H.E. Kéba Mbaye
gives a good indication that political struggles were influential in the
altering.
A RT I C L E S
2009/3-4 53