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| 4 minutes read

Pandemic stops play – will Australia be caught out by its decision to withdraw from 2021 tour to South Africa?

Background

On 17 February 2021, Cricket South Africa (“CSA”) lodged a dispute with the International Cricket Council (“ICC”) following the decision by Cricket Australia (“CA”) to postpone Australia’s three-Test tour of South Africa as a result of COVID-19.

On 2 February 2021, CA announced that it had "no choice" but to postpone the tour scheduled for March 2021 due to the public health situation in South Africa in relation to COVID-19.

The cancelled tour forms part of the ICC’s inaugural World Test Championship, which is set to conclude with a final in Southampton in June 2021. CSA is reportedly seeking compensation for its losses caused by the cancellation of the series, together with the World Test Championship points that would have been up for grabs had the series gone ahead.

Intriguingly, England had an opportunity to send their Ashes rivals into the World Test Championship final if they had beaten India in the final test of their recent series. However, another defeat for England  confirmed a New Zealand v India final, and left Australia in third place and South Africa in seventh place in the World Test Championship. In short, if the dispute between CSA and CA is not resolved amicably, the ICC’s Dispute Resolution Committee will appoint an independent arbitration panel to hear the case. If the panel determines that CA was wrong to withdraw from the tour, then it could award some or all of the points for the series to South Africa thus affecting both South Africa and Australia’s position in the final World Test Championship standings.

So how do proceedings under the ICC Dispute Resolution Committee work? And are there any relevant precedents for a case like this?

ICC Dispute Resolution Committee 

The ICC Dispute Resolution Committee is the authority responsible for resolving disputes between ICC members and was established to help achieve that objective by providing independent panels to hear and resolve disputes through arbitration.

All disputes referred to the ICC Dispute Resolution Committee are governed by the ICC Dispute Resolution Committee Terms of Reference (the “Terms”).

Under Section 6 of the Terms, parties to any dispute within the jurisdiction of the ICC Dispute Resolution Committee must first seek to resolve the dispute by entering into good faith discussions with each other prior to formally referring the dispute to the ICC Dispute Resolution Committee.

If CSA’s notice dated 17 February 2021 was a formal “written notice” under the Terms, then the  parties will reach the end of the 45-day period for good faith negotiations at the end of this week. If no resolution is reached by then, CSA may submit a Notice of Dispute to the Dispute Resolution Committee under Section 7 of the Terms, which is essentially a request for arbitration. The Dispute Resolution Committee will then appoint a Dispute Panel to hear and determine the dispute.

How will the dispute be resolved? 

Australia and South Africa were meant to play each other in March with the goal of reaching a final in England. Ironically, they may be heading towards a legal showdown against each other in England because the Terms provide that any dispute referred to a Dispute Panel shall be resolved by way of a London-seated arbitration.

The key elements of the Dispute Panel process are:

  • Arbitral Status (Section 2.2) – a Dispute Panel formed under the Terms operates as an arbitral tribunal with a seat in London.  The dispute would therefore be subject to the provisions of the  English Arbitration Act 1996 (“the Act”), and the English courts would have supervisory jurisdiction over the proceedings.
  • Formation of Dispute Panel (Section 8) – assuming that CSA files a Notice of Dispute, the Chairperson of the ICC Dispute Resolution Committee would appoint a Dispute Panel to hear and determine the dispute, which usually consists of three current members of the ICC Dispute Resolution Committee (unless the Chairperson decides that the dispute should be heard by one member alone, e.g. where there is urgency or where the parties agree).
  • Governing Law (Section 2.1) – the Terms and all dispute resolution proceedings before any ICC DRC panel are governed by English law.
  • Procedure (Section 9) – the procedure for the remainder of the dispute is then determined by the Dispute Panel according to the circumstances of the case, but may involve written submissions, including evidence, and an oral hearing.
  • Hearing (Section 9.3) – the proceedings shall be conducted in private unless the Dispute Panel decides otherwise.
  • Decision/Appeal (Section 10) – the Dispute Panel’s decision is made by a simple majority and will be accompanied by written reasons in the form of an arbitral award. As such, it may not be appealed by the parties save in the very limited circumstances provided for in the Act (i.e. where the Dispute Panel lacked jurisdiction (Section 67 of the Act) or where there has been a serious irregularity affecting the Panel, the proceedings or the final award (Section 68 of the Act)).

Are there any precedents? 

The ICC Dispute Resolution Committee has only published one previous decision, but it relates to a dispute between two other national cricket authorities regarding the cancellation of a tour:

  • In 2017, the Pakistan Cricket Board (“PCB”) filed a notice of dispute against the Board of Control for Cricket in India (“BCCI”) alleging that India failed to comply with a bilateral cricket series agreement between the PCB and the BCCI.
  • The PCB sought USD70 million in compensation from the BCCI after India did not play two series in 2014 and 2015 in Pakistan pursuant to a memorandum of understanding (“MoU”) signed between the two boards. The BCCI disputed the claim, asserting that the MoU was merely a tentative understanding and not a legally binding contract and that any series to be played would require prior approval of the Indian government, which was withheld by the Indian government. Issues of force majeure were also raised albeit not determinative in the end.
  • Ultimately, a three-member Dispute Panel, applying English law, found in favour of the BCCI on the basis that the MoU was not legally binding, and ordered the PCB to pay 60% of the BCCI’s costs.

Next steps

If the matter proceeds to arbitration, like the PCB v BCCI case, the CSA v CA case is likely to boil down to a contractual dispute with a sporting flavour. The bilateral tour agreement between CSA and CA, and the World Test Championship agreement between the ICC and its members, are not publicly available, but it will be interesting to see whether CA seeks to raise a force majeure-style argument as a justification for its actions.

It remains to be seen whether CSA and CA will manage to negotiate a suitable outcome without the need for arbitration or whether CSA will submit the dispute to the ICC Dispute Resolution Committee for determination.

Tags

sport, uk, cricket, arbitration, icc, south africa, dispute resolution, australia, bbc

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