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The procedure before the Basketball Arbitration Tribunal is regulated by the BAT rules of arbitration and what distincts it from other court procedures are the rules on one selected arbitrator, resolving disputes on an ex aequo et bono principle, no hearing of parties, limited number of submissions during the procedure and other rules whose immediate goal is to shorten and resolve disputes faster and more efficiently.

One of the most important issues related to the proceedings before the Basketball Arbitration Tribunal is what rules apply during the proceedings. The application of the BAT Arbitration Rules is envisaged, and for other issues not regulated by these rules, the provisions of Chapter 12 of the Swiss Federal Law on Private International Law will be applied accordingly, regardless of the residence or domicile of the parties to the dispute.

Beginning of the procedure
The initial act initiating the procedure is the REQUEST FOR ARBITRATION, with which a non-refundable fee is paid, in accordance with the table on the website of the International Basketball Federation (FIBA), and whose non-settlement leads to procedural consequences in the form of withdrawal of the request for arbitration. The completed request with the paid fee is received by the Secretariat of BAT, which checks the orderliness and correctness of the request itself, and the same, provided that it is correct, forwards it to the President of BAT. The President of BAT has the duty to check two things when receiving the request for arbitration: 1) the existence of the BAT arbitration clause of the contract from which it is the basis for the tribunal’s actions 2) the appropriate subject of arbitration in accordance with the BAT arbitration rules ( the arbitrability of the dispute).

REQUEST FOR ARBITRATION must contain the following:
names of the parties
addresses of the parties
phone number
email addresses of both parties or their representatives
presentation of facts and legal provisions
request of the submitter for resolving the dispute
a copy of the agreement which contain the BAT arbitration clause
all evidence in writing to which the applicant will refer
any request for the examination or examination of a witness

ANSWER TO THE REQUEST FOR ARBITRATION must contain the following:
names of the parties
addresses of the parties
all counterclaims
objection of incompetence
all written evidence
a statement of all facts and legal arguments
all requests to request the examination and examination of witnesses

Important note: The objection of incompetence may be raised at the latest in the response to the request for arbitration.

Following the submission of the request for arbitration and the response of the opposing party to the submitted request, the further course of the proceedings shall be conducted by the arbitrator of the tribunal. He determines the course of the procedure and directs its further course with his actions. The practice is that disputes are generally resolved after the first two letters, and if the nature of the dispute requires additional action, the arbitrator has the authority to determine the implementation of additional necessary action to resolve the dispute.

The arbitrators may propose conciliation or settlement between the parties. The settlement can be proposed by the parties themselves, and then the role of the arbitrator is to assist and direct towards that goal, maintaining the independence and impartiality which is the duty of the arbitrator during the entire procedure before the tribunal.

If settlement isn’t reached, and the parties have pointed out all the facts and legal arguments, and if all the issues have been sufficiently clarified, the arbitrator invites the parties to submit a report on the costs of the proceedings.
The important question is by which law does the arbitrator decide? Which law is authoritative in resolving disputes before an arbitral tribunal? Arbitrators usually decide on the principle of ex aequo et bono (principle of fairness), except in cases where the parties have strictly agreed on the applicable law.

After the conducted procedure, the arbitrators make a written decision, which may be with or without explanation, depending on the value of the subject matter of the dispute. (if the value does not exceed the amount of 100,000 euros, the decision is made without explanation). The BAT secretary informs the party about the decision. The decisions of the arbitral tribunal are final and enforceable and have the status of res iudicata ( the status of an adjudicated matter).

Author: Vasilije Guculj
Trainee Attorney at Law
AKT Todorovic and partners

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