What is an “arbitration”?

Are proceedings before the AFL Anti-Doping Tribunal an “arbitration” for the purposes of the Commercial Arbitration Act 2011 (Vic) such that ASADA is entitled to subpoenas pursuant to section 27A of the Act requiring witnesses to attend and produce documents before the Tribunal?

Chief Executive Officer of the Australian Sports Anti-Doping Authority and the Australian Football League v 34 Players and One Support Person

Background

In December 2014, the Australian Sports Anti-Doping Authority (‘ASADA’) and the Australia Football League (‘AFL’) made an application to the Supreme Court of Victoria for a subpoena under section 27A of the Commercial Arbitration Act 2011 (Vic) (‘the Act’).

The order was sought to require certain persons to attend a hearing before the AFL Anti-Doping Tribunal to give evidence and produce documents in ASADA’s prosecution of Essendon football players for allegations of use of a banned peptide. There was considerable urgency as the hearing before the AFL Anti-Doping Tribunal was about to commence. This was the first application made in the Supreme Court of Victoria Arbitration List following the promulgation of a new Arbitration List Practice Note[1] and Arbitration Rules.[2]

The paramount issue before the Court was whether the proceedings before the Tribunal could be characterised as a “domestic commercial arbitration”, thus empowering the Supreme Court to grant the orders sought?

Supreme Court Findings

Croft J considered that for a subpoena order to be made under s 27A of the Act the proceeding pending in the AFL Anti-Doping Tribunal must be characterised as a ‘domestic commercial arbitration’, thus falling within the scope of the Act. If the Court was so satisfied, in accordance with section 27A, it may order a subpoena requiring a person:

(a) to attend for examination before the arbitral tribunal;
(b) to produce to the arbitral tribunal the documents specified in the subpoena; or
(c) to do both of those things.

Croft J concluded that the proceedings before the Tribunal were domestic, but could not be characterised as ‘commercial’.[3] Determination whether the AFL Anti-Doping Tribunal process amounted to ‘arbitration’ was not so straightforward.

The applicants cited a definition of arbitration given in Mustill and Boyd’s text Commercial Arbitration in England, which listed the essential qualities of an arbitration process.[4] Two deserve mention.

The first requirement is that there is an agreement to arbitrate which is an enforceable agreement to refer a particular dispute to arbitration.

The second requirement is that the agreement must contemplate that the rights of the parties will be determined in an impartial manner with an equal obligation of fairness upon both sides. An arbitration is in effect an inquiry in the nature of a judicial inquiry.[5]

The Mustill and Boyd characterisation was adopted by Justice Thomas in the English decision in Walkinshaw v Diniz, who added three further requirements.[6]

Croft J considered that a critical requirement was that the outcome of an arbitration – namely, an arbitral award, is binding and has preclusive effect, in line with principles of res judicata and issue estoppel, as in the case of court judgments.[7]

The AFL Anti-Doping Tribunal is established in accordance with Regulations to which a player becomes bound upon signing a contract to play in the AFL.

Decisions of the Tribunal are subject to appeal to the Appeals Board of the Tribunal, and are enforceable by the AFL. Croft J concluded that the decisions of the Tribunal do not have the necessary preclusive effect.[8]

In the result, Croft J held that the Anti-Doping Tribunal was not an arbitral tribunal but, rather, its arrangements were indicative of a domestic disciplinary tribunal. The Tribunal was established and operated under regulations to which players are required to submit. Decisions of the Tribunal arose under a contractual framework and were not enforceable in the Supreme Court of Victoria as arbitral awards under the Act. Accordingly, the Court was not empowered to make the subpoena order, and the application was dismissed.

Implications of the Decision

This high profile decision explains the distinction between arbitral tribunals and domestic disciplinary tribunals.

It emphasises the importance of the preclusive effect of the relevant decision before it can be characterised as an arbitral award.

 


 

[1] http://assets.justice.vic.gov.au//supreme/resources/78928aa8-743a-4be9-b116-3df4736baa85/practice+note+8+of+2014+commercial+arbitration+business.pdf

[2] http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/b05145073fa2a882ca256da4001bc4e7/484724691AEABBA2CA257D820013D0CC/$FILE/14-205sra%20authorised.pdf

[3] ASADA v 34 Players and One Support Person [2014] VSC 635 (19 December 2014), [47]-[58].

[4] Mustill and Boyd, The Law and Practice of Commercial Arbitration in England (2nd ed., Butterworths, London and Edinburgh, 1989), 41-42.

[5] ASADA v 34 Players and One Support Person [2014] VSC 635 (19 December 2014), [41]-[42].

[6] [2000] 2 All ER (Comm) 237. The three requirements are that proper opportunity is given to each party to present their case, a negative requirement against unilateral communications to arbitrators, and a requirement that evidence be give properly and proportionately.

[7] ASADA v 34 Players and One Support Person [2014] VSC 635 (19 December 2014), [10]. The ‘preclusive’ requirement, cited by Croft J in his judgment, is derived from and further explained in Williams and Kawharu, Williams & Kawharu on Arbitration (LexisNexis, Wellington, 2011), 5, [1.1.3].

[8] ASADA v 34 Players and One Support Person [2014] VSC 635 (19 December 2014), [29].

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