01/08/2023

Arbitration, athletes and appeals: a human right to judicial review of awards?

Last month, The European Court of Human Rights (ECtHR) issued its judgment in Semenya v Switzerland.

The ECtHR upheld complaints by the South African athlete Mokgadi Caster Semenya against the Swiss state. Notably the ECtHR found that the outcome of arbitral proceedings in the Court of Arbitration for Sport (CAS), coupled with the narrow scope of review by the Swiss Federal Court, violated her right against discrimination under article 14 of the European Convention of Human Rights

The case may be heading for the Grand Chamber. Meanwhile the judgment is the latest word on how decision-making in professional sport should address difficult gender-related questions in the context of women’s competitions. Much of the legal interest, though, lies in its broader implications: the way the ECtHR defined the duties of arbitral tribunals dealing with Convention issues and, crucially, what the judgment means for the scope of review of arbitral awards by national courts.

Key takeaways

• The Semenya chamber judgment affirms the growing relevance of the European Convention on Human Rights to arbitral proceedings involving sporting and other private organisations.
• The ECtHR recognised that where article 14 is in play, the state is positively obliged to provide “sufficient procedural and institutional safeguards” to protect individual athletes against discrimination. That includes ensuring that arbitral tribunals give properly reasoned decisions based expressly on the Convention and the ECtHR’s jurisprudence, supervised by a national court with adequate power to set aside awards that fail to meet that standard.
• In English-seated arbitrations, an appeal on a point of law under Arbitration Act 1996 s69 should meet the supervisory requirement, subject to adopting a Convention-compatible reading of the permission provisions and applying the ECtHR’s waiver principles to opt-out rules.
• Council of Europe member states whose law includes no equivalent of s69 will have to find other workarounds to ensure compatibility with the Convention, including potentially a more generous interpretation of ‘public policy’.
• The case may be referred to the Grand Chamber. Meanwhile sporting bodies and other private organisation using arbitration should consider the Convention compatibility of their processes and anticipate a heightened risk of judicial intervention.

Read the full briefing, co-authored by Gordon Nardell KC and Fiona Petersen.