Non-recognition of Dissenting Opinions in CAS as a Controversial and Unresolved Matter

Abstract

In this article the authors cover the problem of expressly established non-recognition of dissenting opinions (separate opinions) in the Court of Arbitration for Sport (CAS) being uncommon for arbitration institutes. In particular, the authors analyse approaches to dissenting opinions in various national legal systems and arbitration institutes (as well as other dispute resolution bodies) which mainly allow dissenting opinions (as described below). The main focus and goal of this article is to explore possible considerations that might have led to non-recognition of dissenting opinions in CAS proceedings and whether this is common in arbitration and international justice. Having researched this question, the authors conclude that the origins of such a substantive influence on the existing regulation could be: (1) the CAS’s precedent role; and (2) the influence of Swiss law as lex arbitri. The authors also conduct substantial analysis of existing views, asking whether the lack of dissenting opinion is a positive or a negative feature and conclude that the dissenting opinion is still very controversial regarding its impact. The chosen topic is important because the approach of various dispute resolution bodies seems not to be unanimous and there is no global tendency in this respect. The topic is especially timely, considering the recent decision of a Frankfurt Court of Appeal which refused to enforce an International Chamber of Commerce (ICC) award due (among other reasons) to the existing dissent which in the opinion of the court violated public policy. dissenting opinions, separate opinions, concurring opinions, arbitral awards, the Court of Arbitration for Sport (CAS), sports arbitration, international arbitration, decision, award, alternative dispute resolution, arbitrators, deliberation, joint or individual opinions