Arbitration procedures at the Court of Arbitration for Sport (CAS) lend themselves to a number of interesting and challenging situations for legal practitioners. One example of such a situation is a party’s use of expert witnesses and testimony.[1] As much as any good attorney may pride themselves on being able to study and become extremely well-versed in the subject at hand for a case, sometimes there is no substitute for having someone who is truly and intimately familiar with the subject to discuss it before the Panel, someone who can ideally offer technical knowledge that can only be acquired through years of specialization.
When it comes to proffering expert witnesses and testimony at CAS, it falls upon the attorney(s) to be aware of what rules do (or do not) apply, whether there are certain practices established through the jurisprudence regarding taking of evidence, and how to navigate some of the situations one can expect to encounter when you put your expert, who may or may not be an attorney themself, in the hot seat.
An Overview of the Applicable Rules
As far as the applicable rules are concerned, the authors note that there is no defined body of rules of evidence at CAS to express what does or does not constitute an expert, what does or does not constitute expert testimony, or precisely how a Panel should treat it. The third paragraph of Article R44.1 of the Code of Sports-related Arbitration (CAS Code) introduces the possibility of relying on expert witnesses and their testimony, requiring the party who offers such evidentiary measure to state the expert witness’s area of expertise and, as with factual witnesses, to provide a brief summary of the expected testimony in its written submissions. Article R44.2 states that the Panel may limit or disallow an expert’s appearance during a hearing and/or their testimony on the basis of relevance. However, no further guidance may be found in the CAS Code.
Naturally, the conclusion from the above should not be that,...
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