This is actually a misrepresentation of what has been stated by several lawyers on here with regard to the possibility of City managing to have the case heard in the High Court, and I think it worth clarifying the point. Under section 68(1) of the Arbitration Act 1996, City would have the right to "apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award."
It's certainly true that many of this board's lawyers commenting on the issue have sought to downplay the chances of City being able to use this provision. After all, challenges under section 68 are meant to be a last resort that's rarely used. Further, in reaching our assessment, we've generally assumed that the panel will be composed of eminent professionals who'll act accordingly during the proceedings, thus neutralising the prospect of their being held to have committed a "serious irregularity".
Frankly, the existence of this provision should be enough to keep the panel honest in terms of the way it conducts itself. It would be humiliating for the PL as a whole, but particularly for the individual members of the panel, if they were to find their award being challenged in the High Court on the ground of it entailing a "serious irregularity". I think we can safely assume that, if the panel offers us anything remotely resembling an opportunity for a High Court challenge, City and our lawyers will be on it like a rat up a drainpipe.
Nonetheless, some posters still fear a stitch-up. These people might well question whether there could be a problem for City owing to the absence in section 68 of a right to challenge an award on the ground of it being perverse, manifestly wrong or whatever. Personally, I don't really think that's an issue, even if the panel were to try to do a number on us by relying on the relatively low standard of proof required (the balance of probabilities) to reach an evidentially questionable verdict.
Why am I so sanguine? Well, section 68(2) lists what constitutes a "serious irregularity" for these purposes, and one of them, pursuant to section 68(2)(a), is where a tribunal fails to comply with section 33 of the same Act, which among other things imposes a duty on a tribunal to "act fairly and impartially as between the parties". In practical terms, I see it as highly unlikely that a tribunal could produce an award that ran counter to the weight of the evidence without falling foul of that provision. The bias will surely shine through in other ways, too, in such a situation, thus rendering a challenge possible.
Admittedly, I can't say that the above would be so in every case, and there must be at least a notional chance of a dubious award being handed down but not being accompanied by the kind of irregularity that gives scope for a challenge. So what happens in this somewhat unlikely but theoretically possible case? I was discussing this with a fellow Blue a month or so ago. My bet is that you'll see court action - it just won't be City that's the litigant.
Remember that, in the CAS proceedings, City pleaded and the panel implicitly accepted that the allegations, if true, would inevitably involve various fraudulent criminal conspiracies between the club, some of its sponsors, their officers, as well as other prominent individuals and entities based in Abu Dhabi. Of course, I may be wrong and I don't claim ITK status on that, but I don't see the Emirate of Abu Dhabi taking that lying down. Simple as that.
