Arguendo

Arguendo is the Core Project in the Lex Coterie Group of Organizations.

Sunday, 14 June 2015

OFFSIDE: A LOOK INTO THE INTERNATIONAL COURT OF ARBITRATION FOR SPORT

                   In the era of globalization which has witnessed countless disputes involving interests of multiple Countries and as such disputes become prominent, a profusion of international tribunals have been brought into existence in order to meet the demands of dispute settlement in a manner which is in accordance with the common principles of natural justice so as to deliver justice to the aggrieved party. However in reality such tribunals are at best seen as a work in progress.

All hope is not lost, there exists, at least in my opinion, a single international court which rises beyond the obstacles that plague its more herald brethren such as the International Court of Justice (‘ICJ’) and International Criminal Court (‘ICC’) in form of the Court of Arbitration for Sports or in short ‘CAS’.
The visionaries behind CAS sought the concerned body to become the ‘Supreme Court’ for all sports related disputes. In reality the CAS has attained the status for which it was conceived[1].  On 30th June 1983 upon ratification of the statute of the CAS by the International Olympic Committee (‘IOC’) did the presence of the CAS become official. The CAS is headquartered in Lausanne, Switzerland[2] and has decentralized offices in New York, United States of America as well as in Sydney, Australia[3].
The CAS enjoys jurisdiction over most sports governing bodies such as WADA, FIFA[4], IOC, NBA, UEFA, IWF, IAAF and other regulatory sports authorities. Hence cementing its status as a broadly accepted and recognized Court for dispute resolution.  
A major hindrance to the recognition of the achievements of the CAS as a widely recognised dispute resolution body is that the body purely caters to disputes which pertain to medals or games, rather than disputes involving basic human rights or territorial matters. The scope of sports related disputes have been held in low esteem by several criticizers of the success of the CAS. Critics have seem to forgotten that sports arouses the deepest emotions in the ardent fans irrespective of the kind of game being played. A few noticeable examples of such are the numerous clashes between fans during the local derby between Mohun Bagan and East Bengal in India, the Heysel Stadium Disaster in which close to 50 spectators lost their lives as well as upwards of 600 spectators were injured due to a stampede caused by unruly fans in Brussels, Belgium in 1985[5] and lastly the actions of angry fans beheading a referee in an act of revenge for giving an incorrect decision during a match in Brazil[6]. In short, cynics are simply mistaken when they denigrate the importance of sports. Sports can inspire our passions, capture our hopes and give us a reason to dream[7].

 Jurisdiction of CAS:

Principally CAS adjudicates over disputes involving either a commercial element or pertaining to disciplinary issues.
By commercial element reference is made to disputes essentially revolving around the execution of contracts, such as those relating to sponsorship, the sale of television rights, the staging of sports events, player transfers and relations between players or coaches and clubs and/or agents (employment contracts and agency contracts). Disputes relating to civil liability issues also come under this category (e.g. an accident to an athlete during a sports competition).
Disciplinary cases on the other hand represent the disputes submitted to the CAS, of which a large number are doping-related. In addition to doping cases, the CAS is called upon to rule on various disciplinary cases (violence on the field of play, abuse of referees, etc). ­

             Info Via: Asser International Sports Law blog                      


Along with the prior mentioned disputes the CAS also deals with disputes arising out of contentious results of any tournament[8].
Generally speaking as is the case with any arbitration clause, a specific clause is to be made for reference of any sports related dispute to be referred to the CAS. Thus an arbitration clause stating recourse to the CAS in case of a dispute is a must between parties[9]. In addition to the above the parties may enter into a written agreement post the existence of a dispute stating recourse to CAS for adjudication over the subject matter of the dispute[10]. Lastly as per the code of arbitration for sports related disputes, the Court is empowered to only exercise its jurisdiction over matter connected to sports in some manner or the other[11]. On that note it is pertinent to note that the CAS till date has not dismissed any dispute so referred to it on the grounds that the concerned dispute is insufficiently allied to sports[12].

  Structure of CAS[13]:

             CAS comprises of two divisions, firstly the Ordinary Arbitration Division (‘OAD’) and secondly the Appeals Arbitration Division (‘AAD’). The request for arbitration is forwarded to the concerned division depending upon the nature of dispute between the parties.
-    The OAD sets in motion panels which are entrusted with the task of resolving disputes subject to ordinary arbitration procedure[14]. The AAD on the other hand resolves disputes subject to the appeals arbitration procedure[15].
-          The Ad hoc Division: The CAS ensures its presence during major sporting events[16] in order to hear and to provide swift decisions within a span of 24 hours from the time of filing the appeal by any participating Country or athlete.
-           Parties are also offered to the option to opt for mediation[17] prior to engaging in ordinary arbitration process[18].

Applicable Law:

           As is the case with any ordinary arbitration process the concerned parties have the luxury to come to a consensus as to the relevant applicable law to the dispute. Failure on part of the parties to come to terms as to applicable law results in the Swiss law by default being the applicable law.
With respect to appeal arbitration process the procedure slightly differs in case the parties fail to come to terms as to consensus over applicable law. As per the CAS code[19] the arbitration panel would pass its award as per the rules and regulations governing the body concerned  by the appeal. In simple terms the applicable law in which the concerned body is domiciled.

Award and Appeal:

              Any award passed by a panel with respect to OAD and AAD is binding and final upon the parties. However there exists limited scope for appeal in form of recourse to Swiss Federal Tribunal on grounds of lack of jurisdiction, lack in carrying out basic procedural rules or incompatibility with public policy.  However such an appeal proviso is applicable to associations, bodies or persons having domicile, place of business or habitual residence in Switzerland and when the parties have not expressly excluded further setting aside proceedings in the arbitration agreement[20].




About the Author: 



Abhijeet 'Loki' Andrews, is currently a final year student at Faculty of Law, IFHE, Hyderabad. Abhijeet loves writing about Sports and Environmental Law, whenever he is not busy playing football or skipping across the country adjudicating at Parliamentary Debates.












[1] Ian Blackshaw, Sport’s Court getting right results, Guardian (London), 3rd June 2004 at 31 
[3] Richard H. Mclaren, Introducing the Court of Arbitration for Sport: The Ad Hoc Division at the Olympic Games, 12 MARQ. SPORTS L. REV. 515,520(2001).
[4] In its govening statutes, FIFA has officially recognized CAS, “to resolve disputes between FIFA, Members, Confiderations, Leagues, Clubs, Players, Officials, Licensed Match Agents and Players’ agents.” VIII FIFA Stat. Article 59, Para. 1 (2005).
[7] Daniel H. Yi, “Turning Medals into Metal: Evaluating the Court of Arbitration for Sport as an International Tribunal” (2006). Student Scholarship Papers, Page 24.

[8] See South Korean View on America: From Admiration to Antipathy, KOREA TIMES, 10th May 2003.
[9] Code of Sports related Arbitration, Supra note 22, Article R27.
[10] ibid
[11] ibid
[12] See Matthieu Reebm, The Court of Arbitration for Sport, in DIGEST OF CAS AWARDS III 2001-2003 xxxiii (Matthieu Reeb ed. Kluwer 2004)
[13] See pg. 6, CAS Guide to Arbitration
[14] Mainly those disputes referred to the CAS by way of an arbitration clause.
[15] Mostly disputes arising out of a decision of any sports regulatory authority. Prime example would be the Transfer ban imposed upon FC Barcelona of Spain by FIFA, which in turn was appealed at the CAS.
[16] Few examples are Olympic Games, FIFA World Cup, Commonwealth Games, Asian Games etc.
[17] However such an option is rarely utilized by the parties who prefer to enage in OAP. Statistically since 1999 the CAS has handled only 30 mediation applications.
[19] See, CAS Code of sports related arbitration, Procedural Rules, C R58.
[20] See, CAS Code of sports related arbitration, Procedural Rules, B R46 and C R59.

Thursday, 11 June 2015

People Of Nowhere: Can Malaysia legally send the Rohingya refugees back?

Malaysian officials have taken the position that they will be sending the existing refugees in Pulau Langkawi back to Myanmar. Malaysia also turned away further boats arriving at its shores. Although they were refuelled and resupplied, it was done with the aim of getting them back to Myanmar. Many people, including the Malaysian government, are under the impression that Malaysia can do so as it is not a signatory to the 1951 Refugee Convention.
Rohingya people as ‘refugees’
I don’t think it is possible to argue for a proposition that the Rohingya people are not refugees. These refugees are stateless people in Myanmar who have been denied their right to nationality, freedom of movement, access to education and services and many other fundamental rights. They have suffered grave persecution on grounds of race and religion. In fact, the United Nations (UN) have said that they are one of the most persecuted minorities in the world. 
Principle of non-refoulement
This principle basically states that a state cannot oblige a person to return to a territory where he/she may be exposed to persecution on grounds of race, religion, nationality, membership of a particular social group or political opinion.
The purpose of this principle is to ensure refugees are protected against such forcible returns. It applies both to persons within a state’s territory and to rejection at its borders.
This principle has attained the status of customary international law. What does this mean? In essence, this principle has been practised widely by many states, where it is regarded as a binding rule of law. In other words, all states are bound by it unless they have strongly objected to it. Many people think that only written law in form of conventions and treaties bind states. However, customs such as this also binds states.
Malaysia has adopted the Universal Declaration of Human Rights and the UN Declaration on Territorial Asylum of 14 December 1967, both of which have codified the principle of non-refoulement. It would be grossly contradictory for Malaysia to say that it is not bound by this principle when it had taken a different stance in the UN.
Therefore Malaysia can’t send these refugees back to Myanmar or any other place where they would face persecution. However, can Malaysia do so if it is deplete of resources to keep or accept the refugees?
Policy considerations 

There are two general exceptions to this principle, ie. on grounds of national security or where the refugees’ criminal records constitute a threat to the community. Up until now, the Malaysian officials have failed to sufficiently address if any of the two grounds have been fulfilled (both of which are strictly interpreted). However, this is where I feel it would be unfair to solely blame Malaysia, or any other receiving country. Malaysia has its obligations as a receiving country, but it can only fulfil them to the extent its resources allow it.
This is not a Malaysian problem, an Indonesian problem or a Thai problem; it is a problem of the international community. It is appalling that Asean countries have failed to react promptly to come up with a solution to this humanitarian crisis. Instead, countries are more keen on washing their hands clean of any responsibility.
Even if a state does not have the space to keep these refugees on a temporary basis, it could still provide assistance in other forms. Other countries around the globe could offer to temporarily host these refugees pending a better solution. Instead, pointing fingers and blaming is the only thing States seem to be doing.
It is shameful that Asean countries can work together for economical purposes, but when it comes to the saving of human lives, all form of cooperation seems to have vanished.

About the Author:

Surendra Ananth is an alumni of National University of Malaysia, and the X-President of Asian Law Students Association. He currently writes for The Malaysian Insider. You can read his blog here

Originally Published on The Malaysian Insider HERE 

Tuesday, 9 June 2015

Armed Forces (Assam- Manipur) Special Powers Act: An Overview (Part II)

In May, 2015, after 18 years Tripura became the first State to repeal the controversial Armed Forces Special Powers Act. 
But what was/is this Act? And what makes it so controversial?
For The Sake Of Argument. presents for you its Armed Forces Special Powers (Assam- Manipur) Act Overview Series in two parts detailing the Act, its objectives and criticisms.

Read Part I HERE

Section 1: This section states the name of the Act and the areas to which it extends (Assam, Manipur, Meghalaya, Nagaland, Tripura, Arunachal Pradesh and Mizoram).
Section 2: This section sets out the definition of the Act, but leaves much un-defined. Under part (a) in the 1972 version, the armed forces were defined as "the military and Air Force of the Union so operating". In the 1958 version of the Act the definition was of the "military forces and the air forces operating as land forces". Section 2(b) defines a "disturbed area" as any area declared as such under Clause 3 (see discussion below). Section 2(c) states that all other words not defined in the AFSPA have the meanings assigned to them in the Army Act of 1950.
Section 3: This section defines "disturbed area" by stating how an area can be declared disturbed. It grants the power to declare an area disturbed to the Central Government and the Governor of the State, but does not describe the circumstances under which the authority would be justified in making such a declaration. Rather, the AFSPA only requires that such authority be "of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the Armed Forces in aid of civil powers is necessary." The vagueness of this definition was challenged in IndrajitBarua v. State of Assam[1] case. The court decided that the lack of precision to the definition of a disturbed area was not an issue because the government and people of India understand its meaning. However, since the declaration depends on the satisfaction of the Government official, the declaration that an area is disturbed is not subject to judicial review. So in practice, it is only the government's understanding which classifies an area as disturbed. There is no mechanism for the people to challenge this opinion. Strangely, there are acts which define the term more concretely. In the Disturbed Areas (Special Courts) Act, 1976, an area may be declared disturbed when "a State Government is satisfied that (i) there was, or (ii) there is, in any area within a State extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religions, racial, language, or regional groups or castes or communities, it may ... declare such area to be a disturbed area." The lack of precision in the definition of a disturbed area under the AFSPA demonstrates that the government is not interested in putting safeguards on its application of the AFSPA.
The 1972 amendments to the AFSPA extended the power to declare an area disturbed to the Central
Section 4: This section sets out the powers granted to the military stationed in a disturbed area. These powers are granted to the commissioned officer, warrant officer, or non-commissioned officer, only a jawan (private) does not have these powers. The Section allows the armed forces personnel to use force for a variety of reasons.
The army can shoot to kill, under the powers of section 4(a), for the commission or suspicion of the commission of the following offenses: acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons, carrying weapons, or carrying anything which is capable of being used as a fire-arm or ammunition. To justify the invocation of this provision, the officer need only be "of the opinion that it is necessary to do so for the maintenance of public order" and only give "such due warning as he may consider necessary".
The army can destroy property under section 4(b) if it is an arms dump, a fortified position or shelter from where armed attacks are made or are suspected of being made, if the structure is used as a training camp, or as a hide-out by armed gangs or absconders.
The army can arrest anyone without a warrant under section 4(c) who has committed, is suspected of having committed or of being about to commit, a cognisable offense and use any amount of force "necessary to effect the arrest".
Under section 4(d), the army can enter and search without a warrant to make an arrest or to recover any property, arms, ammunition or explosives which are believed to be unlawfully kept on the premises. This section also allows the use of force necessary for the search.
Section 5: This section states that after the military has arrested someone under the AFSPA, they must hand that person over to the nearest police station with the "least possible delay". There is no definition in the act of what constitutes the least possible delay. Some case-law has established that 4 to 5 days is too long. But since this provision has been interpreted as depending on the specifics circumstances of each case, there is no precise amount of time after which the section is violated. The holding of the arrested person, without review by a magistrate, constitutes arbitrary detention.
Section 6: This section establishes that no legal proceeding can be brought against any member of the armed forces acting under the AFSPA, without the permission of the Central Government. This section leaves the victims of the armed forces abuses without a remedy.

LEGAL ANALYSIS: A CRITICAL OVERVIEW

The Armed Forces Special Powers Act contravenes both Indian and International law standards. This was exemplified when India presented its second periodic report to the United Nations Human Rights Committee in 1991. Members of the UNHRC asked numerous questions about the validity of the AFSPA, questioning how the AFSPA could be deemed constitutional under Indian law and how it could be justified in light of Article 4 of the ICCPR.
There are several cases pending before the Indian Supreme Court which challenge the constitutionality of the AFSPA. Some of these cases have been pending for over nine years. Since the Delhi High Court found the AFSPA to be constitutional in the case of IndrajitBarua and the Gauhati High court found this decision to be binding in People's Union for Democratic Rights, the only judicial way to repeal the act is for the Supreme Court to declare the AFSPA unconstitutional.
It is extremely surprising that the Delhi High Court found the AFSPA constitutional given the wording and application of the AFSPA. The AFSPA is unconstitutional and should be repealed by the judiciary or the legislature to end army rule in the North East. 
The Act contravenes the following:
  • Violation of Article 21 - Right to life: Under section 4(a) of the AFSPA, which grants armed forces personnel the power to shoot to kill, the constitutional right to life is violated. This law is not fair, just or reasonable because it allows the armed forces to use an excessive amount of force.
·         Protection against arrest and detention - Article 22: In its application, the AFSPA does lead to arbitrary detention. If the AFSPA were defended on the grounds that it is a preventive detention law, it would still violate Article 22 of the Constitution. Preventive detention laws can allow the detention of the arrested person for up to three months. Under 22(4) any detention longer than three months must be reviewed by an Advisory Board. Moreover, under 22(5) the person must be told the grounds of their arrest. Under section 4(c) of the AFSPA a person can be arrested by the armed forces without a warrant and on the mere suspicion that they are going to commit an offence. The armed forces are not obliged to communicate the grounds for the arrest. There is also no advisory board in place to review arrests made under the AFSPA. Since the arrest is without a warrant it violates the preventive detention sections of article 22.
·         The CrPC establishes the procedure police officers are to follow for arrests, searches and seizures, a procedure which the army and other para- military are not trained to follow. The Act contravenes the above.
·         The AFSPA grants state of emergency powers without declaring an emergency as prescribed in the Constitution. The measures taken by the military outweigh the situation in the North East, notably the power to shoot to kill. The offences are not clearly defined, since all of the Section 4 offences are judged subjectively by the military personnel. And the AFSPA is a "special jurisdiction" provision.

5. CONCLUSIONS

The Supreme Court has avoided a Constitutional review for over 9 years, the amount of time the principal case has been pending. The Court is not displaying any judicial activism on this Act. The LokSabha in the 1958 debate acknowledged that if the AFSPA were unconstitutional, it would be for the Supreme Court to determine. The deference of the Delhi High Court to the legislature in the Indrajit case also demonstrates a lack of judicial independence.
Irom Sharmila, who is still protesting against the AFSPA for 14 years.
I would end my article with the view of The UN Special Rapporteur on the Independence and Impartiality of the Judiciary, Jurors and Assessors and the Independence of Lawyers, Mr ParamCumaraswamy, who stated in the 51st Session of the Commission on Human Rights on 10 February 1995, at the United Nations in Geneva that,
"The power of judicial review is vital for the protection of the rule of law." He also quoted from Mr L M Singhvi's 1985 report that "the strength of legal institutions is a form of insurance for the rule of law and for the observance of human rights and fundamental freedoms and for preventing the denial and miscarriage of justice."


About the Author:


Sanya Darakhshan Kishwar is a third year BSc.LLB. student from Central University of South Bihar, Gaya. She is currently interning at For the Sake of Argument.She is passionate about books and loves to read case laws in her free time.




[1]AIR 1983 Delhi 513

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