England and Wales Cricket Board Ltd v Kaneria [2013] EWHC 1074 (Comm)

Case No 2013-Folio-329[2013] EWHC 1074 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
COMMERCIAL COURT
Venue The Rolls Building, 7 Rolls Buildings, Fetter LaneDate Thursday, 21 March 2013
London EC4A 1NL
Before
THE HONOURABLE MR JUSTICE COOKE
Between
ENGLAND AND WALES CRICKET BOARD LIMITEDApplicantDANISH KANERIARespondentENGLAND AND WALES CRICKET BOARD LIMITEDApplicant/ClaimantDANISH KANERIARespondent/Defendant
Digital Transcript of Wordwave International Ltd (a Merrill Corporation Company)8th Floor, 165 Fleet Street, London, EC4A 2DYTel No: 020 7421 4036  Fax No: 020 7404 1424Web: www.merrillcorp.com/mls Email: courtcontracts@merrillcorp.com(Official Shorthand Writers to the Court)
MR I MILL QC and MR N DE MARCO (instructed by Onside Law) appeared for ClaimantMR T MOLONEY QC and MR J BUNTING (instructed by Time Solicitors) appeared for Defendant
Judgment
[1]I have to decide one issue only on this application for a witness summons under section 43 of the Arbitration Act 1996, namely whether the proceedings before the appeal panel of The England And Wales Cricket Board Limited constituted under the disciplinary regulations of that board (to which I shall refer as the ECB) are arbitration proceedings within the meaning of the Arbitration Act.[2]The Oxford English Dictionary defines “arbitration” as:
“The settlement of a question at issue, by one to whom the conflicting parties agree to refer their claims in order to obtain an equitable decision.”
[3]The ECB is a company limited by guarantee with members. The object clause in its Memorandum of Association states that its objects are:(1) to be the governing body of all cricket in England and Wales;(2) to promote and exploit cricket commercially at all levels;(3) to administer the game of cricket at all levels and further to encourage and regulate the relations between cricketers and those who employ them. Their other functions relate to membership of the International Cricket Council and the fulfilment of roles previously carried out by prior bodies to which it is, effectively, the successor.[4]I am concerned only with the appeal proceedings under the ECB’s disciplinary regulations but Mr Moloney QC who appeared for the Defendant submitted that regard must be had to the whole of the disciplinary regulations and the totality of the complaints procedure in those regulations including the summary procedure and the provisions relating to the disciplinary panel hearings, because these appeal proceedings arise from such a hearing by a disciplinary panel.[5]I accept that the appeal proceedings provisions must be read in context and against the background of the other parts of the complaints procedure but there is no difficulty in my judgment, in theory or practice, in having an appeal procedure that does constitute arbitral proceedings when the initial disciplinary proceedings do not, although the terms of the provisions as a whole may suggest one conclusion or other.[6]Here, the only significant difference in procedure between the CDC disciplinary panel hearings and the appeal panel hearings appears to lie in the absolute right in the case of the latter to legal representation for the respondent as opposed to a discretionary right to such representation in the case of the former.[7]I see little difficulty in such a distinction between arbitral proceedings on the one hand and internal proceedings on the other if that is the conclusion to which the facts and law necessarily lead.[8]Mr Moloney QC submits that it is for the ECB to show that there is an unequivocal agreement to arbitrate and that the proceedings when looked at as a whole have the necessary characteristics of arbitration.[9]Mr Mill QC for the ECB accepts that burden in relation to the ECB’s appeal procedures and submits that he discharges that burden by reliance upon:(1) an undertaking signed by the Defendant;(2) the ECB Cricket Discipline Regulations, i.e., the Regulations of the Cricket Disciplinary Commission (the CDC);(3) the constitution of the CDC and;(4) the ECB Articles of Association. These, he submits, show an unequivocal agreement by the Defendant to abide by the rules and regulations, directives and resolutions of the ECB including the CDC Regulations and that this includes the procedure for disciplinary panel hearings and appeal panel hearings, the latter of which constitute arbitration proceedings (whether or not the former do), in the light of the dicta of Thomas J, as he then was, albeit obiter in Walkinshaw v Diniz [2000] 2 All ER (Comm) 237.[10]Put shortly, Mr Moloney contends that the passages upon which Mr Mill relies in Walkinshaw are obiter, which undoubtedly they are, and that the governing principles appear in the Court of Appeal decision in Stretford v The Football Association [2007] EWCA Civ 238. He submits that these principles require an unequivocal agreement to arbitrate which refers sufficiently clearly to the concept of “arbitration” as such and to the finality of the decision-making process to be employed.[11]At the outset, it should be pointed out that the characterisation of the appeal panel proceedings can only, it is common ground between the parties, be that of arbitration on the one hand or that of an internal disciplinary procedure on the other, that “internal disciplinary procedure” being that of a body to which the Defendant has voluntarily subscribed.[12]Both parties accept that the situation is, so far as the structure is concerned, akin to that found in Stretford and the position of the Football Association in the context of the regulation of that sport in this country.[13]Although Mr Moloney referred at various stages in his submissions to the ouster of the court’s jurisdiction, the choice is, in my judgment, just as I have described it. If the appeal panel proceedings are in the nature of an arbitration, then remedies for serious irregularity in those proceedings and rights of appeal or recourse to the court are expressly governed and limited by the Arbitration Act 1996 and, in particular, sections 67 to 69 and the provisions ancillary to them. If these proceedings are “internal proceedings”, then the court could act only if there was either:(1) a breach of human rights or;(2) a breach of contract in the shape of a breach of some implied term as to the conduct of those proceedings, in the absence of some overriding public policy element such as unreasonable restraint of business or trade or;(3) some form of judicial review was found to be available.[14]On 28 April 2009, the defendant signed an undertaking to the ECB in the following terms:
“I, Danish Prabhar Shanker Kaneria hereby undertake and confirm that I will abide by the Laws of Cricket, the present Rules, Regulations, Directives and Resolutions of the England and Wales Cricket Board (the ECB) and any further Rules, Regulations, Directives and Resolutions brought to my notice during the season 2009 and acknowledge that I have seen and read ... (b) the Cricket Discipline Regulations and (c) the current Directives of ECB … which are set out in ECB Rules and Regulations 2009.”
[15]The CDC Regulations refer to the CDC itself. The Constitution of the CDC sets out its terms of reference thus:
“3.1 To operate in all manners and in respect of all of the functions and powers set out herein at arm’s length from the ECB save in so far as in so doing would hinder the proper administration and exercise of the ECB’s functions and powers or the CDC’s functions and powers. 3.2 To administer ECB’s Disciplinary Procedure Regulations (‘DPR’) and to exercise on behalf of ECB as the CDC thinks fit all powers and discretions of the Board or of the CDC contained or referred to therein. 3.3 To administer any and all other Rules, Directives or Regulations of ECB or the CDC as they relate to discipline and to exercise on behalf of the ECB as the CDC thinks fit all powers and discretions of the Board or of the CDC contained or referred to therein.”
[16]The criteria for membership, to quote paragraph 4.2 of the Constitution, state:
“4.2 ... no member shall be appointed and/or elected to the CDC who fails to meet the said Criteria. 4.3 With effect from the Effective Date the CDC shall consist of not less than 11 members on the following basis (and, where relevant put forward or, if there are more candidates than there are vacancies, elected by the relevant body identified below.”
[17]There then follows a list under paragraph 4.3 setting out that CDC membership as follows: 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.”[18]Paragraph 5 provides for a chairman of the CDC who is to be elected by a majority vote of the members of the CDC from nominees, and there are also to be two deputy chairmen.[19]The membership criteria for the CDC are set out in Schedule A which requires that appointments are to be made having regard to the following criteria:
“Judicial or quasi-judicial experience, or Cricketers with First Class or Senior Cricket experience or umpires with similar experience or senior administrative experience with cricket background. In all appointments, regard will be had to geographical spread.”
In all appointments, regard will be had to geographical spread.”[20]It is accepted by the Defendant that the ECB sought to set up a disciplinary commission that was at arm’s length from the ECB itself. It is submitted, however, that it has failed to achieve that end in such a way as to satisfy the requirements needed for this to be an arbitral body, in as much as the CDC remains too closely associated with both cricket and the ECB to be seen as a truly independent or impartial body.[21]This failure, it is submitted by Mr Moloney, is reinforced by the terms of the CDC Regulations themselves and the guidelines issued by the ECB which refer to those regulations. These guidelines are not, however, binding and, in my judgment, add little to the debate, if anything. For the sake of completeness, however, I refer to CDC guidelines 5, 6, 7, 8 and 9:
“5 The summary procedure under regulation 5 permits complaints to be dealt with without a hearing if the case is of moderate seriousness and the CDC chairman (or his authorised deputy) believes there may be a willingness on the part of the “Accused” to admit the matter. Cricketers should note that if they are approached under this procedure, they have the right to consult the PCA who will always be prepared to give help and advice at short notice. Apart from the benefit of speedy resolution, the penalties available under the summary procedure are less than if the matter proceeds to a Disciplinary Panel Hearing 6 A Disciplinary Panel Hearing will normally be chaired by a member of the CDC with legal experience and must take place as soon as is reasonably practicable (see regulation 7.4). In any case against a cricketer, the Disciplinary Panel may sit at a place and at a time that will permit the attendance of that cricketer, notwithstanding that he is involved in a match (e.g., Cricketer X of Gloucestershire may be required to attend a Disciplinary Panel Hearing held at Bristol at 7.30 p.m. on Friday night if involved in a Gloucestershire home game that day). The size of the CDC permits flexibility in the arrangements which it is able to make. 7 The CDC envisages that an Accused who attends a Disciplinary Panel Hearing with a legal representative is unlikely to be refused legal representation but it will only be in the most exceptional case that a hearing date will be adjourned to enable the Accused to obtain legal representation. However, an Accused may be accompanied at the hearing by a friend or representative and cricketers should note that the PCA will be prepared to advise and assist with finding a suitable representative if asked to do so. Further, in the case of a cricketer, the player’s County Secretary/Chief Executive may be present throughout as an observer unless the cricketer objects (see regulation 7.9). 8 The Disciplinary Panel’s powers of penalty are greater than those available under the summary procedure level (see regulation 8). 9 Any appeal is to an Appeal Panel (see regulation 10) and, although an Accused does have the right to legal representation at Appeal Panel Hearings, it is expected that time limits will be rigorously enforced and hearings held promptly so as to avoid delay and unnecessary speculation.” 7 The CDC envisages that an Accused who attends a Disciplinary Panel Hearing with a legal representative is unlikely to be refused legal representation but it will only be in the most exceptional case that a hearing date will be adjourned to enable the Accused to obtain legal representation. However, an Accused may be accompanied at the hearing by a friend or representative and cricketers should note that the PCA will be prepared to advise and assist with finding a suitable representative if asked to do so. Further, in the case of a cricketer, the player’s County Secretary/Chief Executive may be present throughout as an observer unless the cricketer objects (see regulation 7.9). 8 The Disciplinary Panel’s powers of penalty are greater than those available under the summary procedure level (see regulation 8). 9 Any appeal is to an Appeal Panel (see regulation 10) and, although an Accused does have the right to legal representation at Appeal Panel Hearings, it is expected that time limits will be rigorously enforced and hearings held promptly so as to avoid delay and unnecessary speculation.”
[22]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/or1.11.4 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).” 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;[23]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.[24]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.[25]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.25.1 At paragraph 7.1 there is provision that, upon a decision being made to refer the Complaint for a disciplinary panel hearing, the ECB is promptly to appoint a prosecutor who is not to be a member of the CDC but is likely to be an employee of the ECB, that employee having the power to delegate relevant matters to a lawyer provided that the lawyer is not a member of the CDC.25.2 Paragraph 7.3 provides that the CDC chairman or deputy who decides to refer the Complaint to the disciplinary panel hearing is to appoint the disciplinary panel and that he may in fact include himself in that panel. It is usual but not mandatory for the disciplinary panel to include one person from a list of suitable persons nominated by the Professional Cricketers’ Association.25.3 The disciplinary panel has, under paragraph 7.8, discretion as to whether or not to allow the accused to be legally represented at the disciplinary panel hearing and it is made plain that the accused has no right of legal representation, though he does have the right to be accompanied by a friend or helper of his own choice. If he is a cricketer then, under paragraph 7.9, he has the right to be accompanied by the chief executive of his first class county cricket club or his chairman of his minor county cricket club.25.4 Paragraph 7.10 provides that the disciplinary panel can determine its own procedure and that it has the right to require production of documents, whilst paragraph 7.11 provides that the accused and prosecutor are permitted to call witnesses. The panel is entitled to draw inferences under paragraph 7.12 from any failures on the part of the accused, whether in relation to giving evidence or to produce documents.[26]The appeals procedure is set out in paragraph 10.26.1 Paragraph 10.4 provides for the ECB to notify any appeal to the CDC chairman and to such persons it wishes to instruct as prosecutor in relation to the appeal, once again it being the case that no member of the CDC is eligible to act as prosecutor.26.2 The CDC chairman then, under paragraph 10.5, appoints the appeal panel which is to consist of not less than three people. No members of the disciplinary panel are eligible for appointment to the appeal panel. If he was not a member of the disciplinary panel himself, the person making the appointment of the appeal panel can appoint himself to the appeal panel. If the accused is a cricketer it is again usual but not mandatory for the appeal panel to include one person from a list of suitable persons nominated by the Professional Cricketers’ Association. Otherwise the appeal panel comprises members of the CDC.26.3 Paragraph 10.8 provides for the prosecutor’s duties.26.4 Paragraph 10.9 provides for the appeal panel to deal with the appeal by way of a complete rehearing of all the matters raised by the accused’s notice of appeal.26.5 Paragraph 10.10 provides for the appeal panel to determine its own procedure.26.6 In contradistinction to the original disciplinary panel, paragraph 10.11 provides for the accused to have the right to be legally represented at the appeal panel hearing. He is also entitled to be accompanied by the chief executive of the county club of which he is a member.26.7 Once again the accused and the prosecutor are permitted to call witnesses and then there are various other ancillary provisions.[27]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.[28]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.”
[29]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.”
[30]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.[31]“(i) It is a characteristic of arbitration that the parties should have a proper opportunity of presenting their case.” As I have already outlined, the CDC Regulations do ensure that the parties are provided with that opportunity. The appeal takes place as a complete rehearing with evidence and documents and determination by the panel in the context of a hearing of those matters.[32]“(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.” Although it was suggested in witness statements that, because the CDC had received material in relation to the disciplinary proceedings regarding the witness in question, this requirement had been breached, I can see no basis for any such suggestion. It is a feature of the appeal process under the Regulations that no unilateral communications are received by the appeal panel and all relevant communications are disclosed and are common to the parties.[33]“(iii) The hallmarks of an arbitral process are the provision of proper and proportionate procedures for the provision and for the receipt of evidence.” These matters I have already referred to in the context of the Regulations - the fact that the appeal panel determines its own procedure, but that nonetheless the parties have the right to call witnesses and there is to be a complete hearing.[34]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.[35]“(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.” It is clear that the decision of the appeal panel is to be determinative of the rights of the parties without any further appeal under those Regulations, and that the parties have accepted the jurisdiction of the appeal panel; indeed it is the Defendant who has instigated the appeal and triggered that jurisdiction. There is no suggestion that its decisions would not be binding.[36]“(v) The procedural agreement must contemplate that the process will be carried on between those persons whose substantive rights are determined by the tribunal.” That is plainly the case here.[37]“(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.” The jurisdiction of the appeal panel here derives from the CDC Regulations which the Defendant accepted and to which he agreed to be subject when he signed the undertaking. There have already been proceedings before the disciplinary panel and, as I have already said, the Defendant has instituted an appeal to the appeal panel.[38]“(vii) The tribunal must be chosen, either by the parties, or by a method to which they have consented.” It is the CDC Regulations and in particular paragraph 10.5 of those regulations which governs the constitution of the appeal panel and those Regulations are ones to which the Defendant agreed.[39]“(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.” Under paragraph 10.5 the appeal panel members are composed of members of the CDC and where the appellant is a cricketer, as here, one person from a list of suitable persons nominated by the Professional Cricketers’ Association. The CDC Regulations provide a number of safeguards, to many of which I have already referred, to ensure that appropriate procedures are followed to ensure determination in an impartial manner with obligations of fairness.[40]“(ix) The agreement of the parties to refer their disputes to the decision of the tribunal must be intended to be enforceable in law.” It has been agreed between the parties that the appeal proceedings are subject to and governed by English law and there is no doubt that on the face of it, because this is a contractual provision, the intention is that the result is an enforceable result.[41]“(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.” Once again, that is clearly the case here, the appeal panel being constituted upon receipt of the relevant notice of appeal which sets out the complaint that the Defendant has against the decision already taken by the disciplinary panel.[42]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.[43]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.[44]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.[45]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.[46]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.” That is illuminating insofar as it emphasises the question of impartiality rather than the question of independence.[47]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.[48]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.[49]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.[50]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.[51]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.[52]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.”
[53]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.[54]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.[55]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.[56]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.[57]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.[58]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.[59]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.[60]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.

Cited in 3 later judgments