How “Amicus Curiae” Works At The Court Of Arbitration For Sport

Amicus Curiae
Friday, 09 December 2022 By Madalina Diaconu

Anybody could use a friend, including the Court of Arbitration for Sport (CAS). An amicus curia (literally, ‘friend of the court’) may also be of valuable help for the parties and their counsels, notably in arbitration proceedings involving wider issues such as human rights, employees’ rights, environmental concerns, etc.

Introduced in the CAS Code in 20131, the amicus is a traditional concept for common law countries, in the US, in particular, where it was borrowed from the English, and also, Roman law2. However, despite its old age, this notion remains rather nebulous3, and recourse to it in CAS proceedings has been limited so far.

Generally speaking, amici’s status is not homogeneous across legal cultures. Sometimes they are appointed by the courts themselves, in other cases they ask to be admitted to the proceedings (similarly to intervenors: they are also sometimes called “supportive” amici). In the CAS jurisprudence, there were even situations where a party (the Appellant) had formally asked the court to request an amicus brief from an international federation (FIFA)4. Finally, rare cases have been recorded where the court even became its own friend: for example, in a 19th-century case, a judge had appointed himself as amicus curiae5.

The amici’s exact role and procedural prerogatives are also varied; in some US federal district courts, besides filing a brief, the amicus has been permitted to present oral arguments, to examine witnesses, to introduce evidence and even to enforce previous court orders6.

In international sports arbitration, notably before the CAS, the enduring ambiguity of the amici’s role is explained, in our opinion, by two factors: firstly, the CAS Code does very little to explain this notion and to contour its precise scope; secondly, case-law on this matter is still quite scarce, even if the number of CAS amici is progressing.

In this context, this article examines amicus curiae. Readers will learn about its origins and its current use is different proceedings at national and international level. Special attention is given CAS arbitration proceedings, where it tries to clarify, with examples, the status and prerogatives of different CAS amici and the conditions in which they may be admitted to the proceedings.

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Madalina Diaconu

Madalina Diaconu

A Swiss qualified lawyer and an academic, Dr. Madalina Diaconu specializes in European and International Economic Law, with an emphasis on Sports Law; Gambling Law and on Human Rights. She has over twenty years’ experience in the practice of law, having worked notably for the International Olympic Committee, the European Court of Justice, the Swiss lottery and the UEFA Control, Ethics and Disciplinary Body.

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