by Renée Kolar The final award by the AAA/CAS arbitrator(s) may be appealed to the CAS within twenty-one days of issuance of the final reasoned award or when the award is deemed final. United States Anti-Doping Agency, Protocol for Olympic and Paralympic Movement Testing at §15(b) (2009) [hereinafter USADA Protocol]. If the AAA/CAS arbitrators issue a partial, interim or non-final award or an award without reasons such award will be deemed final for purposes of appeal to CAS on the earlier of (a) issuance of the final reasoned award by the AAA/CAS panel, or (b) thirty days from issuance of the partial, interim or non-final award. USADA Protocol at §15(b). Once a CAS appeal is filed with the CAS Administrator, the CAS hearing will automatically take place in the U.S. and CAS shall conduct a review of the matter on appeal which, among other things, shall include the power to increase, decrease or void the sanctions imposed by the previous AAA/ CAS Panel regardless of which party initiated the appeal. Id. The regular CAS Appeal Arbitration Procedures apply. The decision of CAS shall be final and binding on all parties and shall not be subject to further review or appeal. Id. The results of all hearings, including written decisions, shall be communicated by USADA to the Athlete or other Person, the USOC, the applicable NGB, IF and WADA. Id. The NGB and/or USOC shall impose any sanction resulting from the adjudication process. The NGB and/or the USOC shall not impose any sanctions until after the Athlete or other Person has had the opportunity for a hearing. Related Posts: USADA Case against Lance Armstrong | USADA Adjudication Process Part V |USADA Expedited Track, Disputing, July 26, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part IV | The Arbitration Hearing, Disputing, July 25, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part III | The Appointment of Arbitrators, Disputing, July 24, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part II | The Review Board Track, Disputing, July 23, 2012 Armstrong v. Tygart | USADA Files Motion to Dismiss Lance Armstrong’s Suit , Disputing, July 21, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part I | USADA ‘Results Management,’ Disputing, July 19, 2012 Armstrong v. Tygart | Texas Federal Court Will Hear Lance Armstrong Case on August 10, Disputing, July 18, 2012 Armstrong v. Tygart | Lance Armstrong’s Suit and Restraining Order against USADA, Disputing, July 17, 2012 USADA Case against Lance Armstrong | What is the USADA? Disputing, July 16, 2012 USADA Case against Lance Armstrong | USADA Allegations, Disputing, July 13, 2012 Lance Armstrong | The Doping Controversy Continues, Disputing, July 12, 2012 Renée Kolar is a summer intern at Karl Bayer, Dispute Resolution Expert . Renée is a J.D. candidate at The University of Texas School of Law and holds an undergraduate degree in Applied Foreign Languages from l’Université Stendhal in Grenoble, France.  

by Rustam Dubash and Saionton Basu Cross-border agreements into India – the arbitration clause International agreements in most cases will include an arbitration clause, setting out the governing law of the contract and the seat of arbitration. When dealing with an Indian party, this may not entirely prevent litigation before the Indian courts, since judicial intervention in Indian courts could still occur unless specific language excluding the operation of Part 1 of the Indian Arbitration and Conciliation Act 1996 (the Act), which contained the provision for appointment of arbitrators, is drafted into the agreement. The Indian Supreme Court in Bhatia International v Bulk Trading SA(2002) 4 SCC 105 held that Part 1 of the Act applied not just to arbitrations with their seat in India, but also to arbitrations taking place outside India involving an Indian party, unless the parties expressly or impliedly excluded all or any of its provisions. This position was affirmed by the Indian Supreme Court in Venture Global Engineering v Satyam Computer Ltd (2008) 4 SCC 190. Winds of Change? In 2010 (Dozco India Private Limited v Doosan Infracore Company Limited Arbitration Petition No 5 of 2008), the Indian Supreme Court heard a petition where the Indian party sought its intervention in appointing an arbitrator in a cross-border agreement which had provided for arbitration under the ICC Arbitration Rules with the governing law of The Republic of Korea and the seat of arbitration in Seoul. The agreement had not specifically excluded the application of Part 1 of the Act. The petitioner contended that since Part 1 of the Act was not ‘expressly’ or ‘impliedly’ excluded by the parties in the agreement, it continued to apply even if it was an arbitration to be conducted outside India and governed by foreign law. The Supreme Court therefore had to interpret the arbitration clause and decide whether it was clear from the language of that clause that it expressly excluded Part I of the Act. The Indian Supreme Court held that the language in the arbitration clause was sufficiently clear to exclude Part 1 of the Act and therefore did not appoint an arbitrator. It further held that the law laid down in the above two cases did not apply to this case. It appears to us that as long as there is clear language which excludes Part 1 of the Act, the Indian courts are unlikely to intervene in relation to applications filed before it under Part 1 of the Act. Conclusion 2000-2010 saw several interventions by Indian courts in international arbitrations contrary to the principle of minimum judicial intervention in arbitration embodied in the Act. Whilst the Dozco judgement is a welcome change, we would still advocate that when drafting an arbitration clause it should have clear language excluding Part 1 of the Act to avoid satellite litigation in the Indian courts. As Mr Fali Nariman, Senior Advocate, Supreme Court of India and President Emeritus, Bar Association of India, said in a speech earlier this year, ‘the Act must be brought back into conformity with the letter and spirit of the [UNCITRAL] model law which inspired it’.   Rustam Dubash is the head of Penningtons’ commercial dispute resolution team and also head of the India group. He has been a partner at Penningtons since 1998 and has over 25 years of commercial dispute resolution experience. He has been involved in high value UK and cross border litigation and international arbitration as well as mediations resulting in early resolution of disputes. He also advises clients on pre action strategy, again with the aim of resolving disputes early on. Rustam continues to represent several well known Indian corporates, banks, high net worth individuals and their families. Penningtons is a member of the UK India Business Council and its India group is ranked in the India/foreign firms category in the latest edition of The Asia Pacific Legal 500.   Saionton Basu is a partner in the corporate team and jointly heads the India group with Rustam Dubash. He is an experienced mergers, acquisitions and projects lawyer and advises on international corporate and commercial activities involving a wide range of industries and jurisdictions. His particular areas of specialisation are structuring and executing domestic and cross-border transactions as well as projects focusing on Public Private Partnerships. He advises international clients who are active in India, including banks, corporations, foreign governments and financial institutions as well as Indian companies doing business in the UK and Europe. Saionton was previously the law clerk to the Chief Justice of India, V N Khare. He featured in the up and coming Indian lawyers under 35 list in the India Report 2010 of a leading industry publication. He was also invited to judge the UK Philip C Jessup International Law Moot Court National Finals 2011. Saionton has recently spoken on the legal and regulatory considerations of doing business in the UK/Europe-India corridor at the International Trade Forum and UKTI. He is also involved with the work of the charity CRY (Child Rights and You), which focuses on education sector projects for underprivileged children in India.

by Renée Kolar When the United States Anti-Doping Agency (USADA) determines that a case against an Athlete or other Person might not be concluded prior to the Protected Competition in which that Athlete or other Person is to compete, USADA shall address the case through the Expedited Track. United States Anti-Doping Agency, Protocol for Olympic and Paralympic Movement Testing § 13 (2009) [hereinafter USADA Protocol]. The B Sample shall be analyzed by the laboratory at the earliest practicable time as scheduled by USADA which will be notified to the Athlete. Id. Regardless of the status of any B Sample analysis, within three business days of expiration of the period in which the Athlete or other Person must accept a Provisional Suspension, the Athlete or other Person shall be deemed to have requested arbitration of their case and USADA shall notify the AAA in writing of the initiation of an expedited proceeding by USADA against the Athlete or other Person by filing a request for arbitration with the AAA. Id. The AAA shall immediately form an arbitration panel under the AAA’s expedited procedures. Id. The panel shall complete and close the hearing and issue its written award within the time period identified by USADA as necessary to provide for orderly Participation in Protected Competition by the Athlete or other Person, if eligible, or if no Protected Competition is more imminent, within twenty-one days of formation of the panel. Id. Related Posts: USADA Case against Lance Armstrong | USADA Adjudication Process Part IV | The Arbitration Hearing, Disputing, July 25, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part III | The Appointment of Arbitrators, Disputing, July 24, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part II | The Review Board Track, Disputing, July 23, 2012 Armstrong v. Tygart | USADA Files Motion to Dismiss Lance Armstrong’s Suit , Disputing, July 21, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part I | USADA ‘Results Management,’ Disputing, July 19, 2012 Armstrong v. Tygart | Texas Federal Court Will Hear Lance Armstrong Case on August 10, Disputing, July 18, 2012 Armstrong v. Tygart | Lance Armstrong’s Suit and Restraining Order against USADA, Disputing, July 17, 2012 USADA Case against Lance Armstrong | What is the USADA? Disputing, July 16, 2012 USADA Case against Lance Armstrong | USADA Allegations, Disputing, July 13, 2012 Lance Armstrong | The Doping Controversy Continues, Disputing, July 12, 2012 Renée Kolar is a summer intern at Karl Bayer, Dispute Resolution Expert . Renée is a J.D. candidate at The University of Texas School of Law and holds an undergraduate degree in Applied Foreign Languages from l’Université Stendhal in Grenoble, France.  

by Renée Kolar Jurisdiction The arbitrator(s) has the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement. See AAA Supplementary Procedure for the Arbitration of Olympic Sport Doping Disputes, Annex D of USADA Protocol [hereinafter AAA Supplementary Procedure], R-7. The arbitration clause shall be treated as an agreement independent of the other terms of the contract. Id. Procedure Provided the parties are treated with equality and that each party has the right to be heard and is given a fair opportunity to present its case, the arbitrator(s) has the discretion to vary the procedure and may direct the order of proof, bifurcate proceedings and direct the parties to focus their presentations on issues the decision of which could dispose of all or part of the case. Id. at R-27. The arbitrator may take whatever interim measures he or she deems necessary. Id. at R-31 A party can make any new or different claim, before the arbitrator or arbitral panel has been selected. Id at R-5. However, after the arbitrator or panel is appointed, admission of new or different claims is within the discretion of the arbitrator(s). Id. Except as may be mutually agreed by the parties or upon the request of a single party for good cause as may be determined by the arbitrator, the hearing, including any briefing ordered by the arbitrator, shall be completed within three (3) months of the appointment of the arbitrator AAA Supplementary Procedure, R-19. Evidence The arbitrator(s) do not need to conform to legal rules of evidence. Id. at R_28. The arbitrator(s) may only retain an expert or seek independent evidence if agreed to by the parties and (i) the parties agree to pay for the cost of such expert or independent evidence or (ii) the USOC agrees to pay for the cost of such expert or independent evidence. Id. The parties shall have the right to examine any expert retained by the arbitrator and shall have the right to respond to any independent evidence obtained by the arbitrator. Id. Witnesses for each party shall also submit to questions from the arbitrator as well as the adverse party. Id. An arbitrator or other person authorized by law to subpoena witnesses or documents may do so upon the request of any party or independently. Id. Confidentiality USADA shall not Publicly Disclose or comment upon any Athlete’s Adverse Analytical Finding or Atypical Finding or upon any information related to any alleged doping violation (including violations not involving an Adverse Analytical Finding) until after the Athlete or other Person (1) has been found to have committed an anti-doping rule violation in a hearing conducted under the USADA Protocol, or (2) has failed to request a hearing within the time set forth, or (3) has agreed in writing to the sanction sought by USADA. AAA Supplementary Procedure, R-16. However, USADA may provide notification to the USOC, NGB, IF, WADA, an event organizer or team selecting entity (or other sporting body ordering the test) as provided for in the USADA Protocol. Id. Award The award must be a written reasoned award signed by a majority of the arbitrators. Id. at R-39. The arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the World Anti-Doping Code, International Federation Rules, the USADA Protocol or the USOC Anti-Doping Policies. Id. at R-40. In addition to a final award, the arbitrator may make other decisions, including interim, interlocutory, or partial rulings, orders, and awards. Id. Expedited procedure At the request of any party, any time period set forth in the AAA Supplementary Procedure rules may be shortened by the arbitrator(s) where doing so is reasonably necessary to resolve any athlete’s eligibility before a protected competition, while continuing to protect the right of an athlete charged with an anti-doping rule violation to a fair hearing. Id. at R-6. If a request to expedite the adjudication process is made before the appointment of the arbitrator(s), the AAA shall randomly select one arbitrator from the Arbitrator Pool to determine whether the adjudication process shall be expedited and the schedule pursuant to which the process shall proceed. Id. at R-6. This randomly selected arbitrator shall not sit on the panel. AAA Supplementary Procedure, R-6. If the request to expedite the process is made after the arbitration panel has been appointed, the panel shall determine whether the adjudication process shall be expedited and the schedule pursuant to which the process shall proceed. Id. The AAA shall immediately notify the Athlete Ombudsman and the USOC General Counsel’s office of any arbitration that may be or has been initiated under these expedited procedures. Id Related Posts: USADA Case against Lance Armstrong | USADA Adjudication Process Part III | The Appointment of Arbitrators, Disputing, July 24, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part II | The Review Board Track, Disputing, July 23, 2012 Armstrong v. Tygart | USADA Files Motion to Dismiss Lance Armstrong’s Suit , Disputing, July 21, 2012 USADA Case against Lance Armstrong | USADA Adjudication Process Part I | USADA ‘Results Management,’ Disputing, July 19, 2012 Armstrong v. Tygart | Texas Federal Court Will Hear Lance Armstrong Case on August 10, Disputing, July 18, 2012 Armstrong v. Tygart | Lance Armstrong’s Suit and Restraining Order against USADA, Disputing, July 17, 2012 USADA Case against Lance Armstrong | What is the USADA? Disputing, July 16, 2012 USADA Case against Lance Armstrong | USADA Allegations, Disputing, July 13, 2012 Lance Armstrong | The Doping Controversy Continues, Disputing, July 12, 2012 Renée Kolar is a summer intern at Karl Bayer, Dispute Resolution Expert . Renée is a J.D. candidate at The University of Texas School of Law and holds an undergraduate degree in Applied Foreign Languages from l’Université Stendhal in Grenoble, France.