Legal Opinion on whether Article 10.2 of the World Anti-Doping Code is compatible with the Fundamental Principles of Swiss Domestic Law / Claude Rouiller. - World Anti-Doping Agency (WADA), 2005
Contents:
I. THE EXPERT
II. THE FRAMEWORK OF THE MANDATE
1. The mandate
2. The documents provided
3. Customary disclaimer
III. THE OVERALL LEGAL CONTEXT OF THE CONSULTATION
1. Preamble
2. The European Convention of November 16, 1989
3. The World Anti-Doping Agency and the World Anti-Doping Code
(a) The World Anti-Doping Agency
(b) The World Anti-Doping Code
4. The UNESCO Convention of October 19, 2005
(a) The adoption of the Convention and its preamble
(b) The Convention and the World Anti-Doping Code
IV. DISCUSSION
1. Preamble
(a) The rules under discussion
(b) The status quaestionis
2. The interpretation of Article 10.2 of the Code and the legal nature of the sanctions it provides for
(a) The interpretation of Article 10.2 of the Code
(b) The legal nature of the sanctions provided for
3. The content of the fundamental rights and general principles of autonomous Swiss law that could be applied by arbitrators reviewing the application of Article 10.2 of the Code and that could come into play in the context of a limited review by the Federal Tribunal
(a) Introductory note
(b) Personal liberty
(c) Economic liberty
(d) Brief outline of fundamental rights practice
(e) The relative practical similarities between the modalities of application of Article 36 Cst. and the modalities of application of Article 27 SCC
(f) Informal examination of the compatibility of Article 10.2 of the Code with fundamental rights and the concrete standard of Article 27, paragraph 2 Cst.
4. The scope of the means of defence available to persons seeking to allege that a sanction based on Article 10.2 of the Code and its confirmation by arbitrators is injurious to their interests legally
protected by these rights and principles of autonomous Swiss law, and the definition in Swiss law of the concepts of arbitrariness and public policy
(a) The right of appeal to an arbitral tribunal
(aa) The ordinary appeal to the Court of Arbitration for Sport (CAS)
(bb) Appeals to arbitral tribunals established on an ad hoc basis pursuant to Article 13.2.2 of the Code or to the CAS acting as a domestic arbitrator
(b) The subsequent recourse to the Swiss Federal Tribunal to quash an arbitral award (recourse available under public law)
(aa) Introductory note concerning the recourse available under public law in an arbitration matter
(bb) Appeal from an award rendered by a domestic arbitrator
(cc) Appeal from an “international” arbitral award
(dd) The capacity to challenge an award before the Federal Tribunal
(ee) The concept of arbitrariness under Article 36, letter f of the Intercantonal Concordat on Arbitration
(ff) The concept of public policy under Article 190, paragraph 2, letter e PILS
(c) The consequence of the limits of the Swiss Federal Tribunal’s power of substantive review of arbitral awards for the question at hand
V. THE ANSWER
