CAS Arbitration: New Safeguards Seek to Protect Vulnerable Witnesses

The International Council of Arbitration for Sport (ICAS) has come out with certain safeguards, in the form of guidelines, for the protection of vulnerable witnesses including minors, persons with mental disabilities, etc., in CAS arbitrations. The guidelines also seek to incentivise such witnesses to provide their testimonies.

If providing testimony has the potential of “(re)traumatizing the witness, present a threat to personal safety of the witness (and possibly others) or create significant risk to reputation or of retribution”, such witnesses would be considered as vulnerable under the guidelines.

Witnesses should be apprised of procedural accommodations by CAS Panels. The guidelines envisage holding a private hearing when the hearing involves vulnerable witnesses. Accordingly, CAS Panels may provide for remote or anonymous testimonies or prior review of cross-examination questions. The manner of questioning could be modified with due regard to victims of abuse and in certain circumstances, the questions could be asked by the CAS Panel itself, instead of the adverse party. Upon conclusion of the proceedings, the CAS Court Office has to endeavour to protect the identity of the vulnerable witnesses and other sensitive information, by preventing its disclosure in public records. Before an award is published, the CAS Court Office may anonymise the witness’s identity upon receipt of a request in this regard.

However, it has been clarified that any non-compliance with the guidelines by CAS Panels cannot be challenged by parties as they are not “mandatory procedural rules.