(CAS) Bulletin - Tribunal Arbitral du Sport / TAS

According to Article 17.4 “If any document is expressed in
a language other than the language(s) of the arbitration and no
translation of such document is submitted by the party relying
upon the document, the Arbitral Tribunal or (if the Arbitral
Tribunal has not been formed) the LCIA Court may order
that party to submit a translation in a form to be determined
by the Arbitral Tribunal or the LCIA Curt, as the case may
be”. The language of the contract is simply one factor
among others for the tribunal to take into account 15 .
The previous version of Article 17 LCIA Rules 16
imposed that an arbitration should be conducted
in the language of the document(s) containing the
arbitration agreement if the parties could not agree on
any other. However, this lack of fl exibility frequently
entailed unnecessary costs for the translation and
interpretation of documents 17 .
II. Determination of the language of the procedure
before the constitution of the panel
A. Determination of the language of the
procedure by means of an order
on language
Usually, in cases where there is no agreement as to the
language of the procedure before CAS, the President
of the – ordinary or appeals- Division of CAS issues
an “ Order on language ”. Generally, the circumstances
that are taken into consideration for the determination
of the language of the procedure include “the choice of
the applicable law and the language of the contract, the language
of other principal documents, the mother tongue of likely fact
and expert witnesses and the availability of suitable arbitrators
and counsel with the necessary language skills ” 18 .
In most cases, the order is only meant to clarify the
issue of language. However, as we can see from the
indicative Figure (II) listing the orders on language
at the end of this text, in some cases the President of
the Division issues the order on language at the same
time with an order on provisional measures 19 ; it can
also resolve other matters, such as the appointment
of arbitrators, if they have not been appointed by
the parties (as it was the case in CAS 2005/A/1003,
Order of 7 April 2006), or decide on the admissibility
of the case (CAS 2006/A/1163, Order on language
and admissibility of 2 November 2006).
At this point we should note that the Orders on
Language issued by the CAS are procedural orders
15. See also Article 16 ICC Rules.
16. Article 8,1 of the 1985 edition of the LCIA Rules.
17. See Nesbitt S., op.cit., p. 433.
18. See REED/PAULSSON/BLACKABY, Guide to ICSID Arbitration,
Kluwer 2004, pp. 30 – 31; see also CAS 2008/O/1661, order on language
issued on 13 November 2008.
19. See CAS 2006/A/1155, Order on provisional measures and on the
language of the proceedings of 27 September 2006.
and not awards; as such, they cannot be challenged
in court pursuant to Article 190 Swiss PILA (see
also CAS 2009/A/1743 MP2); furthermore, they are
ordered without costs 20 .
B. Criteria for the determination of the
language of the procedure
1. Choice of English or French in the absence of
agreement between the parties
In case of disagreement between the parties, Article
R29 CAS Code does not provide for the possibility
to the President of the panel/the President of the
Ordinary or Appeals Division of CAS to choose
a language other than English or French (“[the
President] shall select one of these two languages as the language
of the arbitration at the outset of the procedure”). In TAS
2005/A/760 21 the Panel held that by inserting an
arbitration clause acknowledging CAS’ jurisdiction
into the statues of the federation, said federation
also accepts that the CAS Code be applied 22 .
Notwithstanding the clear provision of Article R29
CAS Code, some parties do request the use of another
language. In principle, CAS shows some fl exibility,
either by granting an additional deadline in order to
translate the submissions or by allowing parties to
express themselves orally in both languages.
In CAS 2006/A/1155 the Appellant was of Brazilian
nationality and, at the time of the appeal, was
registered with a Spanish football club. He appealed
against a decision issued by the FIFA Appeal
Committee and named FIFA as the Respondent. In
the “Order on provisional measures and on the language of
the proceedings” of 27 September 2006, the President
of the Appeals’ Division decided on the application
for a stay of the appealed decision and, on the same
time, on the language of the arbitration 23 . The
Appellant had requested to choose Spanish as the
language of the proceedings, by arguing that Spanish
is an offi cial language of FIFA and, in addition, the
appealed decision was drafted in Spanish. FIFA
objected by stating that Spanish was an offi cial FIFA
language (according to Article 108 para. 1 FIFA
Disciplinary Code, FDC), but not an offi cial CAS
language. Therefore, the procedure should take place
in English; moreover, the Appellant’s representative
had a good command in English.
The President of the Appeals’ Division concluded
20. See e.g. the Order on language in TAS 2005/A/950, order of 27
September 2005.
21. See TAS 2005/A/760, para. 28.
22. Including Article R29 providing for the two CAS working languages:
see also CAS 2009/A/2014 paras. 91 f.
23. See the CAS 2006/A/1155, Order on provisional measures and on
the language of the proceedings of 27 September 2006, paras. 40 ff.
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