Presentation on theme: "Generic identity in the Advisory Opinions of Sport Arbitration Case Law Giuliana Ladomery, IUSM Rome."— Presentation transcript:
Generic identity in the Advisory Opinions of Sport Arbitration Case Law Giuliana Ladomery, IUSM Rome
Aims of this presentation To show that CAS Advisory Opinions preserve their generic identity though they may present some variance in terms of integrity. The variance examined (as against ECJ Opinions) considers socio-cultural factors in terms of: - participants; - legal cultures; - linguistic mediation related to a multicultural and supranational professional context; - the role of the discourse analyst in the specific context.
Previous research into CAS Advisory Opinions Salmi-Tolonens study (2005) of The Advocate General Opinions at the ECJ posited that judicial opinions could well constitute a genre per se within legal discourse. Based on her analysis and prototypical model, Ladomery (2006 ) examined a set of CAS Advisory Opinions and found no significant variations in the communicative purpose, cognitive structuring and at a semantic level. There were some differences in their pragmatic realizations.
Legal background to the Court of Arbitration for Sport The Court of Arbitration for Sport has existed since 1984. The intent has been to offer a quick and inexpensive procedure to settle sport related disputes. In 1994, the CAS was reformed with the aim of making the institution totally independent from the International Olympic Committee (IOC). The International Council of Arbitration for Sport (ICAS) was set up at the same time to safeguard the independence of the CAS and the rights of the parties. It also looks after the financing and administration of the CAS.
The Code of Sport-related Arbitration In 1994, the 1984 statutes were replaced by the Code of Sport-related Arbitration. It was revised in 2003 to incorporate established principles of case law and came into force in2004. It governs the organisation and arbitration procedures of the CAS. Finally, it also contains a set of mediation rules and ad hoc rules.
Arbitration procedures of the CAS an advisory procedure: it is non-contentious and allows certain sport bodies to seek advisory opinions from the CAS an ordinary arbitration procedure an appeal arbitration procedure a mediation procedure: parties have the option of reaching an agreement with the help of a mediator
The function of Opinions in judicial discourse Written opinions provide answers to specific legal queries before a case is brought to court and are not legally binding. At the Court of Arbitration for Sport (CAS), Advisory Opinions may also examine sport issues that are not necessarily of a strict legal nature. In general they are delivered by one person: the Attorney General in the USA judicial system, the Advocate General at the ECJ. At the CAS, they are delivered either by a panel made up of a president and two members or a sole arbitrator.
When can an Opinion be requested? At the ECJ, the Advocate General is automatically appointed and issues an opinion for each case. At the CAS, the request may only come from recognised institutions and associations and has to be approved by the CAS President (R61 of the Code). The Opinions delivered by the Advocate General are always published, whereas the CAS Advisory Opinions may only be published with the consent of the requesting parties. (R 62)
Examining variance In Worlds of Written Discourse, Bahtia (2004:157) encourages genre analysts to shift their focus from standardised/idealised forms to the realities of professional worlds. Who are the participants issuing the Advisory Opinions? A single arbitrator or two arbitrators and a president, they are Barristers, Attorneys -at-law and/or Law Professors selected from all over the world; -They must be experts in Sports Law.
An example: a formulaic realisation CAS 2005/C/841 CONI ADVISORY OPINION Pronounced by the COURT OF ARBITRATION FOR SPORT Sitting in the following composition: President: Mr François Carrard, Attorney-at-law, Lausanne, Switzerland Members: Mr Massimo Coccia, Professor and Attorney-at-law, Rome, Italy Mr Luigi Fumagalli, Professor and Attorney-at-law, Milan, Italy upon request by COMITATO OLIMPICO NAZIONALE ITALIANO (CONI), Rome,Italy Represented by its President, Mr Giovanni Petrucci
The Panels Opinion 83. In the Panels opinion, therefore, for cases when there is no adverse analytical finding proving the presence of a prohibited substance or its metabolites or markers ……… …… the use or attempted use can be proved by any proof. CAS 2005/C/841 CONI The Panel expresses itself as a collective, authoritative subject. Its members have to agree among themselves and then persuade the parties involved. It has to mediate within different legal cultures and languages. It can thus be defined as a professional community engaged in collaborative practices (after Lave and Wenger :1991 in Bhatia:2004)
Legal cultures The legal background of CAS arbitrators basically stems from two legal traditions: common law and civil law. In the EU, the effort to harmonisation has led to merging elements of common law with civil law both in legislation and court procedures. National legislation in EU countries has followed suit: (British law incorporates elements of civil law and Italian law elements of common law such as precedent); The CAS Code, initially based on Swiss Law, is made up of statutes and rules but incorporates case law as well. Could this be a case of hybridizing legal systems?
Advisory Opinions as Hybrid Texts provisions obliging athletes (and the other subjects of the sporting system governed by FIGC) to adopt a condotta conforme ai principi sportivi della lealtà, della probità e della rettitudine nonché della correttezza morale e materiale in ogni rapporto di natura agonistica, economica e sociale (behaviour in accordance with the sports principles of loyalty, probity and rectitude as well as of moral and material correctness in any relation of competitive, economic and social nature, Panels translation). CAS 2005/C/841CONI Trosborg (1997: 145-146) defines hybrid texts as documents produced in a supranational multicultural discourse community where there is no linguistically neutral ground. In some cases they are translated or re-written.
Power and statistics Legal discourse tends to be self-referential, all the more so at the CAS. At the CAS, information about cases and opinions is never made fully available. looking at the statistics (see handout) rather than a legitimate peripheral participation, the analyst has barely managed to put a foot in the door. However, despite such variance, the sub-genre remains recognisable and realistically integral.