England and Wales Cricket Board Ltd v Kaneria

Six Members who have been validly put forward or elected as members by the First Class County Clubs and then approved as such by the members of the CDC;

Two Members who have been validly put forward or elected as members by the Recreational Assembly and then approved as such by the members of the CDC;

One member who has been validly put forward or elected as a member by the Professional Cricketers’ Association (PCA) and then approved as such by the members of the CDC;

One member who has been validly put forward or elected as a member by the MCC and then approved as such by the members of the CDC;

One member who has been validly put forward or elected as a member by the First Class Umpires and then approved as such by the members of the CDC;

Up to Six Members Nominated by the Chairman following discussion with the Deputy Chairmen and then appointed as such by the members of the CDC. Such appointments to take place from time to time as appropriate.

The Chairman and Deputy Chairmen shall apply the Membership Criteria in respect of persons to be appointed and shall consider any further matter they consider relevant, including but not limited to geographical or professional deficits or imbalances within the existing membership.

If any person put forward or elected is not approved as a member by the CDC then the body or person which put forward or elected that person shall promptly put forward or elect another person for approval of the CDC.”

In the CDC Regulations themselves, the following definitions appear:

“1.1

‘Accused’ means any person or body (whether or not incorporated) against whom a Complaint is made;

1.4

‘Appeal Panel’ means, in relation to any appeal against a decision of the Disciplinary Panel, the panel appointed pursuant to regulation 10.5 below to deal with that appeal;

1.7

‘CDC’ means the Cricket Discipline Commission;

1.8

‘CDC Chairman’ means the chairman from time to time of the CDC;

1.11

‘Complaint’ means an alleged breach of the ECB’s rules, regulations or directives from time to time in force (except for an alleged breach of the Anti-Doping Rules or the Anti-Corruption Code) which is notified to either the chief executive from time of the ECB and/or the CDC Chairman provided that such allegation is made by:

1.11.1

any Member;

1.11.2

the chairman and/or the chief executive of the ECB from time to time;

1.11.3

the chairman from time to time of any ECB committee or ECB sub-committee; and/or

1.11.4

the CDC Chairman;

1.26

‘Prosecutor’ means the person presenting the Complaint to a Disciplinary Panel Hearing and/or responding to an appeal in relation to that Complaint (and, as the context permits, includes any lawyer to whom the Prosecutor may have delegated any of his duties under the CDC Regulation).”

The Regulations go on to provide, in paragraph 2, for jurisdiction and, in paragraph 2.1, in respect of any Complaint the CDC is to have jurisdiction over cricketers who are registered in accordance with the ECB’s qualification and registration regulations and cricketers involved in any match.

Paragraph 4 sets out the complaints procedure which is to apply to all or any breaches of the ECB’s Rules or Regulations or Directives except for breaches of the Anti- Doping Rules or Anti-Corruption Code and sets out the way in which that is to operate, by reference to the CDC chairman who has the ability to decide whether to initiate a summary procedure under paragraph 5 or to refer the matter for a disciplinary panel hearing under paragraph 7.

Paragraph 5 provides for a summary procedure for less serious or admitted offences, with the potential of agreement on penalties and costs between those involved. It is paragraph 7, however, which sets out the disciplinary panel hearings procedure.

The appeals procedure is set out in paragraph 10.

It is clear, therefore, that the appeal procedure, which differs in one particular respect from the disciplinary procedure in relation to the right to representation, includes features which make for dispute resolution in accordance with principles of procedural fairness that are generally considered applicable to judicial determinations. The prosecutor is to be independent of the CDC. The prosecutor is to give proper notice of the complaint and to prepare any papers necessary in that regard for service on the accused. The accused is entitled to be represented by lawyers and accompanied by his club chairman or chief executive. There is a requirement for production of documents and the ability for both the prosecutor and the accused to call witness evidence. The deciding body is to reach conclusions and is able to draw inferences from various failures by the accused.

In Walkinshaw, to which I have already referred, Thomas J, as he then was, set out the facts which he considered relevant when considering whether or not the body with which he was concerned in that case was an arbitral body and whether the proceedings were therefore arbitration proceedings. He referred to a dictum of Hirst LJ in an earlier decision where the latter stated:

“To my mind the hallmark of the arbitration process is that it is a procedure to determine the legal rights and obligations of the parties judicially, with binding effect, which is enforceable in law, thus reflecting in private proceedings the role of a civil court of law.”

An argument was run before Thomas J that, because clause 15 of schedule 11 of the contract in question there referred expressly to arbitration in Lausanne under ICC rules for matters not referred to the body with which he was concerned (the Contracts Recognition Board) whereas there was no reference to arbitration or arbitrators in the context of that board, the language used showed that the proceedings before that board could not be arbitral. That was a submission which he rejected. He said:

“These are powerful arguments, particularly as the schedule is a document which was clearly drafted with the greatest care by lawyers. But in my view, terminology, though a pointer, can be no more than that. It is necessary to examine the substance of whether the Contract Recognition Board’s function was an arbitral one or some other function.”

In looking at the substance of the function of the body concerned he also looked at the question whether the duty of the body was to apply the law and also at the procedure adopted. He then ran through a series of factors, each of which was taken up in the ECB submissions and applied to the CDC in this case. I take up those factors myself.

“(i) It is a characteristic of arbitration that the parties should have a proper opportunity of presenting their case.”

“(ii) It is a fundamental requirement of an arbitration that the arbitrators do not receive unilateral communications from the parties and disclose all communications with one party to the other party.”

“(iii) The hallmarks of an arbitral process are the provision of proper and proportionate procedures for the provision and for the receipt of evidence.”

The judge went on to refer to a number of considerations set out in the then current version of Mustill and Boyd in “The Law and Practice of Commercial Arbitration”. I continue by reference to those particular features using the same numbering sequence.

“(iv) The agreement pursuant to which the process is, or is to be, carried on (“the procedural agreement”) must contemplate that the tribunal which carries on the process will make a decision which is binding on the parties to the procedural agreement.”

“(v) The procedural agreement must contemplate that the process will be carried on between those persons whose substantive rights are determined by the tribunal.”

“(vi) The jurisdiction of the tribunal to carry on the process and to decide the rights of the parties must derive either from the consent of the parties, or from an order of the court or from a statute, the terms of which make it clear that the process is to be an arbitration.”

“(vii) The tribunal must be chosen, either by the parties, or by a method to which they have consented.”

“(viii) The procedural agreement must contemplate that the tribunal will determine the rights of the parties in an impartial manner, with the tribunal owing an equal obligation of fairness towards both sides.”

“(ix) The agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law.”

“(x) The procedural agreement must contemplate a process whereby the tribunal will make a decision upon a dispute which has already been formulated at the time when the tribunal is appointed.”

The Defendant made limited points only in answer to these submissions on the part of the Claimant because the primary submission being advanced was that Stretford v The Football Association Ltd [2007] EWCA Civ 238 was the governing authority here and that Thomas J’s decision did not provide the answer to the question that I have to decide. I will come to Stretford in a moment, but in this context Mr Moloney submitted that there were four other crucial features of the procedure which militated against the procedure amounting to arbitral proceedings.

First he said that the chairman of the CDC panel, which found against the Defendant was the person responsible for choosing the appeal panel. Second, he said that the panel at the disciplinary hearing and the appeal panel are both comprised of persons with strong connections with cricket and with the ECB. A witness statement descended into considerable detail as to the biographical background of those involved. Four out of five of the appeal panel members are said to be committee members of the ECB, unlike in Walkinshaw where three international lawyers of repute were selected who had no connection to Formula 1 at all. Moreover, they were all appointed by the ICC, which was plainly an independent arbitral body. Thirdly, the member who was nominated by the Professional Cricketers’ Association, that is a body of which the Defendant was a member and which effectively acted as his trade union, did not counterbalance that feature because the Professional Cricketers’ Association had, in fact, supported and helped Mr Westfield, in his mitigation when he himself pleaded guilty to spot fixing. He was the chief witness against the Defendant at the disciplinary hearing and is the person in respect of whom the witness summons is being sought for the appeal hearing. Fourthly, it was said that the Defendant had no say in the appointment of the CDC on the appeal panel.

Despite the efforts in the witness statement to show a close connection between members of the CDC and the appeal panel with the ECB, the position is clear. The position is that the membership of the CDC, from which the panels are derived, is entirely separate from the membership of the committees of the ECB. Under the Articles of Association of the ECB, paragraph 6(i) provides that the ECB is to establish an executive committee, a credit committee, an audit and risk management committee, a commercial committee, a nominations committee and a cricket discipline commission.

In the case of the various ECB committees other than the Cricket Discipline Commission, a director of the ECB is to be chairman. There is thus a clear distinction drawn between these various committees on the one hand and the Cricket Discipline Commission on the other (where there is perhaps significance in the choice of the word “Commission”). The intention is plainly that it should be an arm’s length body distinct from the ECB and its other committees. The chairman of the CDC is in fact an independent lawyer, a Queen’s Counsel. The fact that members of the CDC have a strong connection with cricket and may be members of county cricket clubs or of the committee of such clubs, where such clubs themselves are subject to the ECB regulations, is not a factor which imperils their impartiality or independence for the purpose of decision making. Their knowledge and background as set out in the criteria for membership is clearly thought to be beneficial to the process because of their understanding of the world of cricket and, indeed, of the pressures to which players are subject, most of the members of the CDC being former professional players themselves.

I note in passing that in paragraph 39 of the Court of Appeal’s decision in Stretford the following appears:

“As to independence we note from paragraph 101 of the Departmental Advisory Committee (“DAC”) Report on the Arbitration Bill that the DAC expressly considered whether to include justifiable doubts as to the independence of the arbitrator as grounds for his removal. It decided not to do so because arbitration is consensual and “lack of independence, unless it gives rise to justifiable doubts of the impartiality of the arbitrator is of no significance”. It added that there would be no point in adding lack of independence as a separate ground unless it could entitle the court to remove an arbitrator where the lack of independence did not give rise to justifiable doubts about the impartiality of the arbitrator. Thus lack of independence is only relevant if it gives rise to such doubts, in which case the arbitrator can be removed for lack of impartiality.”

I am unable to accept Mr Moloney’s submission that Stretford is the governing authority for my consideration of the question at issue as opposed to the tests set out in Walkinshaw. If Thomas J’s criteria fall to be applied here there is no doubt that the appeal procedures bear all the hallmarks of arbitration. Although Thomas J’s criteria were obiter, he outlined the kind of factors which are plainly material to the consideration of whether or not proceedings are truly arbitral in nature. In most cases there will rarely be any doubt about that. But where doubts arise then these are the indicia of arbitration.

The decision in Bradley v The Jockey Club [2005] EWCA Civ 1056 adds nothing because there two members of the tribunal were Jockey Club members and no one even thought to argue that the proceedings were arbitral in nature.

The issues in Stretford did not, in fact, concern any doubt about whether a particular form of words or procedure constituted arbitration or an arbitration agreement. The question the Court of Appeal had to decide related to Rule K of the Rules of the Football Association, which unarguably contained an agreement to arbitrate. The issue there was whether the clause itself was incorporated in the contract and whether, if it was, it conflicted with Mr Stretford’s Article 6 rights to a fair trial, in particular because the hearing was in private and the agreement to arbitrate was therefore said to be null, void and inoperative. The Court of Appeal concluded that there was a valid incorporation of the clause which referred expressly to final resolution by arbitration. That is, however, of no assistance in the present case and it cannot be the basis for saying that there must be either an express reference to the word “arbitration” or to “finality”. In that case the right of appeal was actually excluded where it would not be here if otherwise section 69 Arbitration Act 1996 requirements could be met.

There can be no basis for saying that there has to be an express reference to the word “arbitrator” or “arbitration” in order for an arbitration agreement to arise. Equally there can be no basis for any need for the express mention of finality. This court sees many agreements which amount to arbitration agreements where informality is the key. The word “arbitration” or some abbreviation will usually be found but often nothing more than that.

The Defendant submits that there is a need for a clear and unequivocal agreement to arbitrate. Reference is made to sections 5 to 7 of the Arbitration Act 1996 and the need for the agreement to be in writing or evidenced in writing within the meaning of those sections.

It was further submitted that the judgment in Stretford underlined the need for the parties to waive their rights to a hearing before the courts and waive their right to a public hearing and to a fair trial under Article 6. Reference was made to the Court of Appeal judgment at paragraph 49 where the Master of the Rolls, as he then was, said this:

“In the instant case the inclusion of Rule K was not in any sense required by law or compulsory. An arbitration clause has become standard in the rules of sporting organisations like the FA. The rules regulate the relationship between the parties which is a private law relationship governed by contract ... Clauses like Rule K have to be agreed to by anyone, like Mr Stretford, who wishes to have a players’ licence, but it does not follow that the arbitration agreement contained in them was required by law or compulsory. To strike down clauses of this kind because they were incompatible with Article 6 on that basis would have a far-reaching and, in our opinion, undesirable effect on the use of arbitration in the context of sport generally.”

Reference was then made by the Court of Appeal to an earlier judgment of its own in Di Placito v Slater [2004] 1 WLR 1605 and the need for a waiver to be made in an unequivocal manner if it is to be effective. So it was submitted that an unequivocal arbitration agreement had to be discerned if there was to be a valid arbitration. It was suggested that something therefore akin to the clear and precise terms of Rule K was required.

In my judgment, there is nothing in these points at all. It is suggested that there is no evidence that the Defendant has unequivocally waived his Article 6 and private law rights. It is suggested that there is no express clause in the CDC Regulations showing that the Defendant has unequivocally agreed to submit any dispute with the ECB to arbitration. It is said that the CDC Regulations could have contained such a clause because, as long ago as 2007, the Master of the Rolls noted that such clauses had become standard in rules of sporting organisations such as the Football Association. It would have been easy for such a clause to be included but it was not, so it is said that the Defendant has not agreed to forego his private law rights or his Article 6 rights. It is further said that the CDC Regulations cannot have taken away his right to a public hearing of the appeal in circumstances where the appeal has not commenced and there is no provision in the CDC Regulations that an appeal hearing must take place in private. There is nothing at all in the CDC Regulations which expressly deals with such a matter.

The answer to their points, in my judgment, is this. In his undertaking the Defendant specifically agreed to abide by the Rules, Regulations and Directives of the ECB (and the CDC Regulations in particular), which he acknowledged that he had both seen and read. He was therefore aware of the disciplinary panel and the appeal provisions and agreed to them, whether they constituted “internal disciplinary procedures” or “arbitration”. Moreover there is no ouster of the court’s jurisdiction for the reasons set out earlier in this judgment. The court has jurisdiction, however limited in practice, in relation to failures in the proceedings either under the arbitration, if it is an arbitration, or as a matter of common law, if it is a matter of private contractual provision only. First, when agreeing to these procedures the Defendant also must be taken to have agreed to them being held in private, as the disciplinary proceedings in fact happened here, without objection on his part. Either way the proceedings would be expected to be in private, and an agreement to arbitrate would carry that requirement in itself and would amount to a waiver of that element of the Defendant’s Article 6 rights, as the Court of Appeal decided was the case in Stretford. Article 6 would otherwise continue to apply in all other respects.

Secondly, if the proceedings were “internal” only, then they would also be in private and would not be open to the world, simply because they were internal to the body and the individual concerned and there would be no basis for any right of the public to be present and no basis for either party requiring there to be a public hearing. Either way, by reason of the agreement between the parties, the proceedings would be in private.

There is therefore an unequivocal agreement to the process and a private process at that, whether it be characterised as arbitration or anything else. That, anyone who applied their mind to the Regulations, would have realised. There is therefore no force in the point that, in order for the proceedings to be seen as “arbitral” in nature, a clear agreement to private resolution of the dispute and waiver of Article 6 rights was required.

Nor is there any force in the submission that, because these proceedings are disciplinary and partake of the nature of a charge made by the “prosecutor” against an “accused”, they cannot readily be the subject of arbitration. Many other sporting bodies adopt arbitration processes for disciplinary offences and there is no reason in principle against the operation of arbitration in such circumstances. The alleged disciplinary offences give rise to a contractual dispute between the ECB and the Defendant, which could be and was referred to the CDC disciplinary panel for adjudication and now at the Defendant’s instigation, onwards and upwards to the appeal panel.

There is, in my judgment, in reality, no room for the argument that a characterisation of the appeal proceedings as arbitral results in any reduction in standards of fairness or in recourse to law. The policy of English law is pro arbitration rather than anti-arbitrate, as is that of Strasbourg, and it may well be thought that recourse to the English courts, as permitted under the Arbitration Acts, is as available, if not more available, than recourse from a contractually agreed disciplinary procedure that is internal only.

I conclude therefore that the appeal panel is an arbitral body and that the proceedings before it are arbitration proceedings, applying the various criteria set out by Thomas J in Walkinshaw, whose reasoning I gratefully adopt. It follows, as it is accepted that the witness in question is a central witness, whose presence is desirable for justice to be done, that I should issue the witness summons.