Written by Alexander Pio Lopes
Introduction
In October 2023, the Asian International Arbitration Centre (‘AIAC’) introduced the Asian Sports Arbitration Rules 2023 (‘ASAR 2023’). The Rules can be accessed here.
For all intent and purposes, the author will be using terminology that has been used in ASAR 2023.
In Malaysia, AIAC has emerged as a hub for sports arbitration when it introduced ASAR 2023, designing it for the unique requirements of the sports industry. AIAC aims to be an international hub for arbitration matters. This is also supported in our legislation Arbitration Act 2005 where it supports ADR and recognises both domestic and international arbitration.
Commencing Arbitration
Just like all arbitration procedures, ASAR 2023 requires an “Arbitration Agreement” in order for parties to initiate an arbitration proceeding (Rule 1).
Model Arbitration Clause
For convenience, AIAC has also provided Model Arbitration Clause of ASAR 2023 and have been attached below:
The following Model Arbitration Clause may be adopted by the parties:
Any dispute, controversy, or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof shall be settled by arbitration in accordance with the Asian Sports Arbitration Rules of the Asian International Arbitration Centre.
At the option of the parties, the following may be included in the Model Arbitration Clause:
- The seat of arbitration shall be [City, Country].
- The Asian Sports Tribunal shall consist of [one/three] arbitrator[s].
- The language to be used in the arbitral proceedings shall be […]. (e.g. English)
- The arbitration [clause/agreement] shall be governed by […]. (e.g. the laws of Malaysia)
Where there is an agreement made, and a party wishes to initiate arbitration. The Party will have to request for arbitration in writing accompanies with details per Rule 2 (‘the Request’).
The date of commencement will be on the date AIAC received the Request (Rule 6) and as such, the other party will be given 30 days to give a response to AIAC and all other parties in writing along with details and statements per Rule 3.
The party initiating the arbitration can make a defend a counterclaim (if any) within 30 days of receipt of the written notification of the tribunal by AIAC (‘Defence to Counterclaim’) – Rule 4.
Arbitrators
Number of arbitrators
A Tribunal shall consist of one (1) or three (3) arbitrators. Parties can choose to agree in writing, the number of arbitrators. In the absence of such agreement, the Director of AIAC (‘the Director’) will make the decision (Rule 7.1 and 7.2).
Impartiality of the Tribunal
Rule 9 deals with the impartiality and independence of the tribunal. Where a party believes in the circumstances there is a justifiable doubt as to the independence of the tribunal or arbitrator, his independence can be challenged as per Rule 10.
Arbitration Proceedings
Rule 13 deals with the conduct of the arbitration where the Tribunal can conduct the arbitration in any appropriate manner, this includes making decisions on preliminary issues, that parties are treated with equality and given the right to be heard.
The Rule also provides that procedures must be done promptly and to avoid unnecessary delays. As such, the use of electronic communication is allowed.
Written communication must be done through methods such as registered mail, email or by hand through courier (Rule 14).
The proceedings will go on as per agreed terms of the Arbitration Agreement (if any). This will include the seat of arbitration, language of the arbitration and applicable law (Rules 15 – 17).
Emergency Arbitrator
An emergency arbitrator can be appointed by the Director where there is a situation of emergency (Rule 23).
Termination of Proceedings
At the end of Arbitration, a final award will be given within thirty (30) days from the date of the close of proceedings unless there is an extension of time requested (Rule 30).
Parties can request for interpretation of the award or to correct any clerical errors within fifteen (15) days after receipt of an award (Rule 31).
Appendix I
Appendix I deals with all the fees relevant to the arbitration. This is a fee schedule which includes, registration fees, case management fees and all other expenses and fees.
Appendix II
Appendix II deals with disputes on selection and or eligibility. Here, the difference is that it is an expediated process where the Tribunal is now a Special Panel.
The difference here however is that Clause 4 states that the proceeding shall be conducted in English or a language determined by the Special Panel. The seat of arbitration shall be Kuala Lumpur (Clause 5).
Communication and notification from AIAC or the Special panel will be done by delivery and or electronic methods to the address stated in the application. Where there is no confirmation in writing, communication is deemed valid if the addressee had actual knowledge of it (Clause 7).
Because this process is expediated, a challenge of the arbitrator must be made as soon as the reason for the challenge becomes known and the Director of AIAC will decide on the challenge immediately (Clause 9).
Proceedings before the Special Panel
Any defence of lack of jurisdiction of the Special Panel must be done by the start of hearing (Clause 11.1).
The hearing method will be done in the form where the Special Panel deems more appropriate. The Special Panel will summon the parties to a hearing on very short notice immediately upon receipt of the application. If the Special Panel considers itself sufficiently informed, the Special Panel can decide not to have a hearing and render an award immediately (Clause 11.3).
The Special Panel does not need to wait for a party who fails to appear or comply with any injunctions or summonses, they may proceed with the proceeding (Clause 11.5).
Time Limit
The Special Panel is also required to give a decision within forty-eight (48) hours from the time of lodging the Application (Clause 13).
Enforceability and Scope of the Decision
The Special Panel after deliberation can decide to give a final award or a referral to arbitration. Where a referral is given, the Special Panel will stipulate a time limit for claimant to bring the dispute before AIAC in accordance with Rule 2 above.
Cost Free
According to Clause 17, the facilities and services of AIAC, including the provision of Special Panel to parties are free of charge.
Conclusion
In conclusion, as sports arbitration continues to evolve into a prominent dispute resolution mechanism in Asia, the AIAC’s ASAR 2023 stands as a pivotal framework guiding this growth. By providing clear and structured rules, it plays a crucial role in steering Asian sports arbitration towards a more cohesive, efficient, and organised system of dispute resolution.
We previously wrote about the ASAR, read it here.