Hallmarks of arbitration confirmed - England and Wales Cricket Board v. Kaneria

The “hallmarks” of arbitration previously identified by Thomas J (obiter) in Walkinshaw v Diniz  [2000] 2 All ER (Comm) 237 over ten years ago, have been endorsed by the Commercial Court in the context of sports disciplinary proceedings. The court’s view was that the ECB’s disciplinary procedures were an arbitration for the purposes of the Arbitration Act 1996 (the “Act”), despite the regulations making no reference to the arbitration. Whilst the decision provides some clarity on a developing area of law, it could have significant consequences for those involved with the regulation and governance of sport in this country.

The ECB’s first instance disciplinary panel found Danish Kaneria guilty of match fixing and imposed a lifetime ban. On appeal, the ECB faced a difficulty in that Mervyn Westfield, the ECB’s key witness, and the alleged recipient of the bribe, refused to give evidence. The ECB sought to characterise its appeal proceedings as an arbitration and looked to take advantage of section 43 of the Act, which allows parties to arbitral proceedings to apply to the court for a witness summons (the court acting in support of the arbitration). Mr Kaneria’s representatives argued that the process constituted internal disciplinary procedures. 

In line with established authorities (Stretford v The Football Association [2007] EWCA Civ 238), the court had no difficulty in finding that upon signing his undertaking to abide by the ECB’s rules and regulations Mr Kaneria had agreed to be bound by the ECB’s disciplinary and appeal procedures. 

However, in this case, unlike Stretford, there was no reference to ‘arbitration’ or ‘arbitrator’, instead  words such as ‘prosecutor’ could be found, which Mr Kaneria argued were more akin to internal disciplinary proceedings. Stretford is authority for the fact that a ‘clear and unequivocal agreement to arbitrate’ must be present where there is a waiver of the right to a public hearing required by Article 6 of the ECHR. Mr Justice Cook was satisfied that this waiver was present because there was no expectation that the hearing would be public and the ECB’s regulations do not state that it would be. He was of the view that the proceedings must either be internal disciplinary proceedings or an arbitration, both of which would be held in private. 

The court looked to the judgment of Thomas J in Walkinshaw for guidance as to when a process constitutes an arbitration; namely whether, to use his words, the “process [is] a procedure to determine the legal rights and obligations of the parties judicially, with binding effect, which is enforceable in law, thus reflecting in private proceedings the role of a civil court of law”, regardless of the terminology employed to describe it.

The court then endorsed the ten factors identified obiter dicta in Walkinshaw, the presence of which can indicate that the function of a body is in substance arbitral. 

In this case, particular weight was placed by the court on the following features of the process:

1. the appeal procedure allowed for a complete re-hearing and in so doing provided the parties with the proper opportunity of presenting their case;
2. no unilateral communications were to be received by the appeal panel and all relevant communications should have been disclosed between the parties;
3. the procedure provided for the proportionate provision and receipt of evidence through the right of both parties to rely upon documents and call witnesses; and
4. the appeal procedure conferred upon the subject of the proceedings an absolute right to legal representation. This was in contrast to the initial disciplinary proceedings, under which the right to legal representation was discretionary.

The court observed that the characteristics identified in Walkinshaw as indicative of an arbitral process are all features of dispute resolution operating in accordance with principles of procedural fairness and, therefore, are also common characteristics of judicial determinations. On the basis of the presence in the ECB’s appeal procedure of the Walkinshaw hallmarks, the court had no difficulty in finding that the appeal proceedings constituted an arbitration for the purposes of the Act, notwithstanding the lack of any express agreement in the ECB’s disciplinary regulations to arbitrate or be bound by the Act, or any clear reference in the regulations to the concept of arbitration. The court held further that proceedings can be binding in nature (as required by Walkinshaw) without the need for an express mention of finality.

The court was also not concerned with the particular composition of the appeal panel, as long as its constitution displayed impartiality. Mr Kaneria’s argument that the panel could not be impartial because it contained people associated with the sport and not solely independent lawyers was rejected; the court was concerned with impartiality rather than independence.

Points arising from the Decision

The decision is a significant one as it endorses the much discussed obiter dicta of Thomas J in Walkinshaw and clarifies the position on when a process which is silent as to whether it is an arbitration or an internal disciplinary proceeding will be considered arbitral for the purposes of invoking the court’s jurisdiction under the Act. The importance of this lies in the ability of the parties to apply to the courts for assistance with procedural matters, such as a witness summons, and the ability of the parties to challenge the final decision in the courts. The grounds to challenge an arbitral award under the Act are narrower than the grounds of challenge available against a decision reached following internal disciplinary proceedings (over which the court exercises a supervisory jurisdiction). 

It is now clear that proceedings are not required to be labelled an arbitration for them to be held to be an arbitration. Rather, when they are silent as to whether or not they are arbitral, the presence of procedural safeguarding features and obligations of fairness will usually be indicative of an arbitral process. The decision also reaffirms the court’s approach to supporting arbitration in sport. 

• Arbitration Cricket Disciplinary