VULNERABLE WITNESSES BEFORE THE COURT OF ARBITRATION FOR SPORT: STRIKING A BALANCE BETWEEN COMPETING RIGHTS

Abstract

The paper deals with the solutions adopted before the Court of Arbitration for Sport (CAS) to deal with a peculiar evidentiary challenge faced in cases concerning corrupt practices, such as match-fixing. In some of them it might happen that a party presenting a witness in support of its case submits that there are reasons not to disclose the identity of the witness, who might be otherwise exposed to threats and dangers. The use of anonymous witnesses, however, impacts on the other party’s right to rebut such evidence, assess its credibility and cross-examine the witness. In such cases, therefore, two rights conflict: the right of the witness to have their life and security protected; and the right to be heard of the other party. The paper examines the attempt to strike a balance between those conflicting rights. For such purposes, some considerations are offered regarding the fundamental role played by the “right to be heard” in the adjudication proceedings. Then, focus is put on the principles and practice relevant to the protection of “vulnerable” witnesses in CAS arbitration, before offering some final considerations.