England and Wales Cricket Board Ltd v Kaneria

Proceedings before a sporting disciplinary appeal panel may constitute arbitration even where the initial disciplinary process is merely internal. The court must examine the substance of the procedure and the parties’ agreement, rather than require the express use of the words “arbitration” or “arbitrator”, or an express reference to finality.

Relevant indicia include a fair opportunity to present the case, proper evidential procedures, a binding decision concerning the parties’ rights, consent to the tribunal’s jurisdiction and constitution, impartiality, enforceability, and determination of an existing dispute. Sporting connections do not necessarily undermine impartiality. Disciplinary disputes may be arbitrable, and an agreed private process does not of itself reduce procedural fairness or legal recourse.

The claimant sought a witness summons under section 43 of the Arbitration Act 1996 for proceedings before the ECB appeal panel. The defendant argued that the appeal was an internal disciplinary procedure rather than arbitration. The dispute arose from disciplinary proceedings conducted under the ECB’s Cricket Discipline Regulations.

The central issue was whether the appeal panel proceedings, considered in the context of the wider disciplinary scheme but separately from the initial disciplinary hearing, constituted arbitration proceedings within the meaning of the Act.

1. Disposition. The court held that the ECB appeal panel was an arbitral body and that the proceedings before it were arbitration proceedings. Since the proposed witness was a central witness whose attendance was desirable for justice to be done, a witness summons was issued.
2. The appeal procedure had to be read in context, but it could constitute arbitration even if the initial disciplinary procedure did not. The appeal involved a complete rehearing, an independent prosecutor, notice of the complaint, legal representation, the production of documents, witness evidence, and a power to draw inferences.
3. The court adopted the indicia identified in Walkinshaw v Diniz [2000] 2 All ER (Comm) 237. The relevant considerations included a proper opportunity to present the case; fair and proportionate evidential procedures; a binding decision concerning the parties’ substantive rights; consent to the tribunal’s jurisdiction and method of appointment; impartiality; enforceability; and determination of an existing dispute.
4. No express reference to “arbitration”, “arbitrator” or “finality” was required. The defendant’s written undertaking incorporated the ECB and CDC Regulations and demonstrated agreement to the procedure. The appeal panel’s decision was intended to be binding and enforceable.
5. The court distinguished Stretford v The Football Association Ltd [2007] EWCA Civ 238. That case concerned incorporation of an express arbitration clause and its compatibility with article 6 rights. It did not establish a requirement for particular words before an arbitration agreement could arise. The agreed private nature of the process involved no impermissible ouster of the court’s jurisdiction, and article 6 continued to apply in other respects.
6. The panel’s sporting connections did not establish a lack of impartiality. The CDC was intended to operate at arm’s length from the ECB, and the panel structure contained safeguards designed to secure fairness. Disciplinary disputes could in principle be referred to arbitration.