Brescla Calcio SpA v West Ham United FC Plc
Reference: (2012) ISLR, SLR-40
Court: Court of Arbitration for Sport
Judge: John Coates (President of the ICAS)
Date of judgment: 26 Jun 2012
Summary: Arbitration - football - independence - Court of Arbitration for Sport - CAS rules - barrister arbitrator - advocate from same chambers - whether apparent independence lacking
Instructing Solicitors: Pekka Albert Aho for A; Henri Brandman for W
The appellant (A) appealed to the Court of Arbitration for Sport against a decision of the Single Judge of the FIFA Players’ Status Committee. A nominated a Portuguese attorney as its arbitrator. The respondent West Ham (W) nominated a well-known English QC (B). A Swiss professor was appointed to chair the arbitration. The parties appointed their legal representatives. W’s Counsel (C) was a barrister in the same chambers as B.
A then challenged W’s nomination of B, requiring a fresh nomination, on the grounds that C worked in the same ‘law firm’ as B. W declined to comply with this demand. A petitioned to challenge the nomination of B, contending that the professional link between him and C was a circumstance which gave rise to “legitimate doubts over [B’s] independence’ within the meaning of CAS Code art R.34. A also relied on the International Bar Association’s Guidelines on Conflicts of Interest in International Arbitration approved on May 22, 2004.
W submitted that the nature of barristers’ chambers was such that B was wholly independent of C, and his independence and impartiality could not be seriously doubted. B himself made observations explaining his own position, identifying the key error in A’s challenge as being ‘to equate … chambers with a law firm’. The chair of the arbitrators also responded to the petition, expressing the view that it was totally unmeritorious and risked creating a dangerous precedent inflicting an irreparable harm on the CAS institution. In the chairman’s view, the relationship between B and C as members of the same barristers’ chambers cast no legitimate doubt on B’s impartiality.
Did B’s membership of the same chambers as C justify the challenge to B’s independence for the purposes of the CAS Rules?
Granting A’s petition and requiring W to nominate an alternative arbitrator:
(1) the issue of independence should be considered in the light of (a) the Swiss Federal Code on Private International Law, (b) the jurisprudence of the Swiss Federal Tribunal, and (c) the Guidelines of the International Bar Association, which the Swiss Federal Tribunal had held to be a ‘precious instrument, capable of contributing to harmonization …’ The Board also considered (d) a decision of an ICSID tribunal, upholding a similar challenge in proceedings between a company and the Republic of Slovenia and (e) academic writings suggesting that the ‘independence’ of English barristers from members of their own chambers was not complete, especially in the light of recent changes to the organisation of chambers.
(2) in view of the recent developments in international arbitration, the evolution of the organisation of barristers’ chambers in the UK, and the fact that the parties did not come from the same legal system, although the ICAS Board was convinced that B was a perfectly independent and impartial arbitrator the petition should be granted on the basis of the arguments raised, which objectively case some doubts, at least in appearance, as to the arbitrator’s independence.
A decision which is unappealable and important for CAS and probably other international arbitrations, as well perhaps as some domestic ones. It is remarkable to the eyes of an English barrister. Common membership of sets of chambers for arbitrators and advocates has been quite common to date, and courts here and elsewhere have held this compatible with the requirements of independence and impartiality, relying on the self-employed character of the Bar. This decision appears to have held that for the purposes of assessing objective compliance with those requirements, chambers can in some ways at least be equated with law firms, in which the members share income. It remains to be seen whether other arbitral tribunals and courts adopt such an approach.