Questioning the (in)dependence of the Court of Arbitration for Sport
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BOOK REVIEW
Questioning the (in)dependence of the Court of Arbitration for Sport Book review: Andrew Vaitiekunas, The Court of Arbitration for Sport: law-making and the question of independence, Sta¨mpfli Verlag, Berne, 2014, 978-3-7272-3114-8, 348 p., CHF 89,00 Antoine Duval1
Published online: 2 December 2015 T.M.C. Asser Instituut 2015
Keywords Lex Sportiva Court of Arbitration for Sport Independence Pechstein Arbitration Transnational law The book under review is the published version of a PhD thesis defended in 2013 by Andrew Vaitiekunas at Melbourne Law School. A PhD is too often the occasion of taking stock of legal developments rather than anticipating or provoking them. This is certainly not the case with this book. Its core subject of interest is the study of the independence of the Court of Arbitration for Sport (CAS)—an issue that has risen to prominence with the recent Pechstein ruling of January 2015 of the Oberlandesgericht Mu¨nchen, Germany.1 The publication of this book could, therefore, not have come at a better time. The fundamental question underlying Vaitiekunas’ research is: ‘‘does CAS have sufficient independence to be a law-maker?’’.2 As many in the field, Vaitiekunas considers the CAS as the key institution in the production of a lex sportiva or transnational sports law. Hence, he thinks that ‘‘the closer CAS’s standards of independence and impartiality are to those that apply to the judiciary, the stronger may be the claim that CAS’s lex sportiva constitutes law’’.3 Although I am myself sympathetic to the idea of the existence of a lex sportiva, I would be cautious in attributing it mainly to the CAS. Instead, I think that the notion of lex sportiva is rather reflecting the complex legal interaction between the rules (and raw political power) of international Sports Governing Bodies (SGBs) and the CAS’s jurisprudence.4 Yet, this should not detract from the value of posing the question of CAS’ independence as a hallmark of its legitimacy. & Antoine Duval [email protected] 1
International and European Sports Law at T.M.C. Asser Institute, The Hague, The Netherlands
The book is relatively slow in tackling this question. The author is keen on providing a comprehensive analysis of the general context of his work in Chapter 2 on the CAS and the lex sportiva,5 his theoretical apparatus in Chapter 3 on the relevant theories of law,6 and of his analytical frame to assess the independence of the CAS in Chapter 4 on independence and impartiality.7 Although these chapters are useful to comprehend the red thread guiding his research, they could also have been synthetized and shortened. Any reader interested mainly in the assessment of the independence of the CAS might be tempted to jump directly to Chapter 5 and 6, which provide the core of the author’s analysis and his most valuable scholarly contribution. Chapter 5 reviews in detail the well-known favourable assessment by the Swiss Federal Tribunal of the independence of the CAS.8 The most important and interesting aspect of the chapter
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