must be established by law. In general, should operate at all in the arbitral The first source of concern is that the it would seem, this requirement is not sphere. But if the Court is of the view CAS is funded by such organisations. Is hard to meet. After all, the same law that the requirement fully applies, a this a sufficient reason to question its that obliges the parties to arbitrate their more rigorous analysis ought to be independence? The Court answered in disputes will directly or indirectly refer entertained. Indeed, arbitral tribunals the negative. As the Swiss government Home to the pertinent adjudicative bodies in of the traditional kind, which rest on had argued by way of analogy during charge of the cases. What happens, the consent of the contracting parties, the proceedings, state courts are also Editorial however, when arbitration is forced have typically generated awards that funded by the states, and the European on the weaker party by the stronger are equivalent to judicial decisions Court of Human Rights itself is funded contractual party, but is not imposed by in many respects, yet no one has by the member states of the Council of Insight the law? This was the situation of Ms seriously maintained that those arbitral Europe, and yet no partiality objection When arbitration is not voluntary: the case of Mutu Pechstein, according to the Court. In tribunals are established by law. The can persuasively be raised against and Pechstein v. Switzerland this context, it seems rather contrived law is in the background, of course, these tribunals, even if they handle to require that the arbitral tribunal be but the tribunals cannot be regarded disputes that involve states. The Court Global Briefing established by law. as having been established by law. reasoned that the mere fact that the The impact of The Belt and They are instead set up by the parties, CAS is funded by sports organisations Road Initiative on investment In a surprising turn, the Court insisted or by the arbitral organisations the does not taint its impartiality from a arbitration on this requirement, but embraced an parties select. Similarly, in spite of all its structural point of view. “What’s in a name?”: NAFTA extremely flexible conception of what complexity, the CAS is the creature of to USMCA and what this it means for an arbitral tribunal to be an organisation of a private law nature. The second concern is that the parties change means for investment protection established by law. We should bear in No state legislation is responsible for to a dispute can only select arbitrators mind that the CAS is the creature of a its creation. from a list drawn by the International In Focus private entity. It is governed by Swiss Council of Arbitration for Sport ("ICAS"), Cultural Heritage law, but no state law has created it. Independence and impartiality most of whose members (12 to be Considerations in The Court, nevertheless, reasoned that precise) are directly appointed by sports International Investment the awards rendered by the CAS are The second requirement the European organisations and these are the members Arbitration equivalent to judicial decisions. The Court of Human Rights addresses relates who choose four further members. Those Smart Contracts and Court cited the jurisprudence of the to the independence and impartiality 16 members then in turn choose the International Arbitration: Swiss Federal Supreme Court in support of tribunals. In this case, the Court final four members. The Court explicitly Friends or Foes? of this proposition. The European Court examined a number of allegations, the acknowledges that sports organisations The Achmea decision: thus concluded that the CAS meets the most important of which is of a structural exert a real influence on the nomination significant uncertainties linger “established by law” requirement. nature. Ms Pechstein had complained process. Yet, the Court declined to find This conclusion is controversial. It that the sports organisations had too that this is a sufficient ground to deny Investment Arbitration: is not clear why this requirement much influence on the arbitral regime. the capacity of arbitrators to decide in Contact Lawyers an impartial manner. This conclusion Over the years the ICAS has reviewed its structurestriggered the partly concurring and partly dissenting opinion of judges Keller and and rules of order, to strengthen the independenceSerghides, who were of the view that of the CAS, in light of the objections that have the CAS falls short of the independence and impartiality standards that the traditionally been made Convention embodies. www.uria.com 5