ReSolution Issue 19, November 2018 | Page 47

cases of private adjudication bodies.
The ECHR gave important explanations on parties' right to a fair trial and a court established by law, as well as how these rights may be limited. It reiterated that compulsory arbitration proceedings are lawful, as long as the fundamental rights granted by the Convention are respected. This is of particular importance in the world of sports, given that it seems desirable for all stakeholders to have a uniform way of dispute resolution.
As a consequence of this decision, whenever arbitration is imposed on an athlete, the arbitration bodies will have to apply all guarantees of the Convention strictly. For other areas, and in particular, commercial arbitration, where the arbitration agreement was entered into voluntarily, the premise that, as a matter of principle, the Convention is not directly applicable as an arbitration is a matter between to private parties, still remains valid. The future will show if the notion of "compulsory" arbitration used in this decision will expand to other areas, such as consumer relationships, where it is questionable if there is indeed a free will to arbitrate (that is, if any of the rights granted under the Convention have not been given up freely, lawfully and unequivocally). The strict adherence to the rights granted under the Convention includes the right to a public hearing, and the ECHR made clear that every party has the right to a public trial. Therefore, whenever a sportsperson who is subjected to involuntary arbitration proceedings so requests, the CAS will have to ensure publicity in future. According to the press release issued earlier this month, the CAS is already prepared to implement these adjustments.
Also regarding the criticisms made with respect to the independence of the ICAS and, in turn, of the CAS, it must be noted that the two sets of proceedings were conducted under the old structures of ICAS, which have since have been reviewed and adjusted - in particular regarding the composition of ICAS' list of arbitrators'. However, the dissenting opinion's observations as to the closed arbitrators' list remains valid.
Pechstein and Mutu may still request to bring their dispute before the Grand Chamber of the ECHR, which would add further significant time until a final decision is handed down regarding these issues. Given the strong dissenting opinion, as well as the fact that one of the dissenting judges was of the jurisdiction of the affected state (Switzerland), the chances that a request for leave to refer the matter to the Grand Chamber would be admitted seem realistic.
Case
Mutu and Pechstein v Switzerland (Applications no. 40575/10 and no. 67474/10) (ECHR 324 (2018) (2 October 2018).)

ABOUT THE AUTHORS

Nathalie Voser
Partner

Bejamin Gottlieb
Associate

T: +41 44 215 5252 [email protected]