Race to the Courthouse

It is symptomatic of the 2007 Formula One season that the last venue where the championship was decided was not on a racetrack but in the splendid conference room of Sidley Austin in London, where the FIA's International Court of Appeal (ICA) ruled that the results at Interlagos would stand and that Kimi Raikkonen would be crowned the 2007 world champion.

And who is Sidley Austin? A successor to Lord Austin's Motor Company perhaps, or to sports cars marque Austin-Healey?

Sadly, no. Sidley Austin is an Anglo-American law firm of 1,600 lawyers - more team members even than Vodafone McLaren Mercedes - and McLaren's challenge to the outcome of the 2007 Brazilian Grand Prix was heard there because Sidley Austin is the FIA's law firm.

Hear Ye! Hear Ye: The New Rules of the Supreme Court of Racing

You have probably heard more than you want to this season about the Supreme Court of Racing, the FIA's International Court of Appeal (ICA). But for better or worse, due to recent rule changes made by the FIA, it appears that the ICA is about to become even more of a force in our sport than it is currently.

The ICA's province has traditionally been to review infringements of the FIA's rules happening on the track, taking up on appeal the decisions of the Stewards of the Meeting that were challenged by the teams or the national sporting authorities.

Prior to late October 2007, Article 1 of the Rules of the ICA as to jurisdiction - "Competence with Regard to Disputes" in the ICA's jargon - stated the FIA's limited jurisdiction as follows:

"The ICA shall judge definitively any dispute or conflict resulting from the application of the FIA Statutes, of the Statutes of the FIA body governed by Swiss law, or of the rules decreed by the FIA, settle any dispute of a sporting nature arising between members of the FIA and to consider any matter of a sporting nature which may be submitted to it by the President of the FIA." (Emphasis added.)

In accordance with its limited jurisdiction, the ICA contented itself with ruling on all the cases that have come down to us as part of the legend of the sport, many of them associated with Michael Schumacher, the ICA's best customer - at least until the McLaren team this year.

Ross Brawn and Michael Schumacher © LAT

In 1994, Schumacher and his Benetton team were punished for all manner of technical violations (wooden skid block too worn, ignoring a black flag, and a forbidden launch control system), but still won the 1994 world championship.

In 1997, Schumacher was punished for trying to use his Ferrari 310B as a dodgem car to punt Jacques Villeneuve's William-Renault FW19 off the road at Jerez in a championship showdown.

Then, in 1999, the most effective legal counsel ever to appear before the ICA - non-lawyer Ross Brawn - saved Schumacher's and Ferrari's bacon in the bargeboard controversy, the case of the 'Malaysian Millimetre Muddle' that Brawn explained away to the ICA's satisfaction.

Until now, other controversies in Formula One such as Jenson Button's perennial struggles with employment contracts, were not within the jurisdiction of the ICA.

Driver contract disputes were the responsibility of the Contracts Recognition Board (CRB), a dispute resolution body provided for as part of the Concorde Agreement, the Constitution of Formula One, which in its current form expires on December 31, 2007.

Indeed, as recently as November 2007, GP2 Champion Timo Glock had a possible overlap between his contracts with BMW Sauber and Toyota and the CRB was the entity that resolved that dispute, permitting Glock to join the Panasonic Toyota Formula One team in the 2008 season.

But on Friday, October 26th 2007, barely a week after Raikkonen's victory in Brazil, the General Assembly of the FIA, in its traditional post-season convocation, modified the Code of Procedure and Rules of the ICA in significant ways, a development that has gone entirely unnoticed.

One significant change is that the jurisdiction of the ICA has been expanded: Article 1 of the new rules expands the nature of the disputes that the ICA can entertain to include "competitors or drivers." The new Article states in full:

"The ICA shall judge definitively any dispute or conflict resulting from the application of the FIA Statutes, of the Statutes of the FIA body governed by Swiss law, or of the rules decreed by the FIA, settle any dispute of a sporting nature between members of the FIA, competitors or drivers or consider and settle any matter of a sporting nature which may be submitted to it by the President of the FIA." (Emphasis added.)

What this expansion of jurisdiction means in including "competitors and drivers" in Article 1 is not self-evident. Does it mean that if Button wants to bolt from Honda he goes to the ICA this time around and not the CRB? After all, if the Concorde Agreement expires on New Year's Eve this year, where does that leave the CRB?

Does it mean that a contretemps such as Bobby Rahal's attempt in 2001 to hire Adrian Newey away from McLaren could now come before the ICA instead of going to the High Court in London?

Lewis Hamilton and Fernando Alonso in the pitlane during qualifying at Hungary © Reuters

Or if competitor Renault F1 believes that competitor McLaren has defamed it, is that now a matter within the ICA's competence in the first instance?

Or the next time Fernando Alonso feels he is brake-tested or Lewis Hamilton feels disadvantaged because he is held up by a teammate taking matters into his own hands, do they complain to the ICA?

Another thrust of the new ICA Rules is a bias toward "alternative dispute resolution", an orientation that prevails is the legal community worldwide as a preferred way of resolving issues in lieu of expensive and time-consuming litigation in the courts.

"Alternative dispute resolution" is jargon that covers arbitration and mediation as a substitute for litigation, or as preliminary steps before resorting to litigation.

"Arbitrational Competence" was a subject already in the earlier ICA rules as the old Article 3, but it has been shifted higher up as Article 2 and, like the ICA's jurisdiction itself, the arbitration provision has also been expended. New Article 2 - "Arbitrational Competence" - states as follows:

"Two or more FIA affiliated members wishing to have their disputes of a sporting or statutory nature definitively settled through arbitration may request the FIA President to refer the matter to the ICA, the President of the FIA being free to accept or reject this request." (Emphasis added.)

Note the discretionary power of the FIA President in acting as a traffic cop with respect to applications for arbitration made by covered parties. For example, if differences between sporting federations in India should erupt in the run-up to the future Grand Prix of India, FIA president Max Mosley has the power to shepherd such a dispute off to arbitration and spare the national courts dealing with the problem.

One thing seems clear. The Jordan-Midland-Spyker, Red Bull, STR, Super Aguri battles as to who is a valid Formula One constructor are disputes subject to the ICA's jurisdiction.

A final jurisdictional point is the "Consultative Competence" rule, now Article 3 of the ICA rules, which one can see as the FIA president's right of personal privilege as to whether to refer a matter to the ICA that is not otherwise appealable under the strict application of the rules.

Article 3 solidifies the preeminence of the FIA President in setting the agenda for the ICA. Article 3 - "Consultative Competence" - states as follows:

"The President of the FIA may also refer a matter to the ICA in order to obtain a non-binding interpretation regarding the application of the sporting or statutory rules enacted by the FIA, the parties concerned being summoned in order to provide their explanations. In order to reach an informed interpretation, the ICA may call upon any expert, witness, or person showing proof of relevant and recognized experience." (Emphasis added.)

The revised rule adds the phrase "the parties concerned being summoned in order to provide their explanations."

In all likelihood, this path to the ICA would be used in only the most extraordinary cases. It is what one would term the 'Order to Show Cause' rule, permitting the FIA President to issue an order to a party or parties to explain why they should not be sanctioned for this or that alleged infraction, and bring that matter on to the ICA for ruling.

It is a pretty powerful provision, combining elements of the subpoena power with an Order to Show Cause that requires all parties to gear up speedily rather than litigating at the usual languid pace of most court cases.

The World Motor Sport Council meets in Monte Carlo © FIA

Judges of the ICA

In addition to expanding the jurisdiction of the ICA in subtle but potentially significant ways, the new ICA rules also seem designed to professionalise the personnel of the ICA in ways that match the expected expansion of the ICA's jurisdiction and workload.

Prior to October 26th 2007, the Composition of the ICA tribunal was a maximum of 18 Titular Members of different nationalities to "constitute a body of jurists of international competence, both sporting and legal."

In the new rules, Article 4 deletes the requirement that the members of the ICA be "jurists" or judges, strictly speaking, in whatever countries from which they were nominated.

Instead of the members of the ICA being jurists, Article 6 - entitled "The Counsel to the ICA" - now provides that "the Counsel shall be a jurist, who will be responsible for verifying the regularity of the proceedings and for ensuring that the rights of parties are respected."

Like FIA delegate Jo Bauer, the Counsel to the ICA shall assist "in an exclusively advisory role": in other words, counsel can be heard but judiciously ignored if need be by the members of the ICA, as Bauer was effectively in the recent fuel temperature controversy that developed after the 2007 Brazilian Grand Prix.

Who is on the current slate of members of the ICA, and how did they get there? To begin with, each member is elected for three years by the General Assembly of the FIA, upon nomination by an affiliated member of the FIA.

One third of the 18 members are retired each year; the current group of 18 listed below (and their back-ups) is the group in which will be empanelled for 2008:

      Country         Titular Members            Deputy Members
2009  Australia       David Miles, LLB           John Anthony Keeffe
2008  Austria         Erich Sedelmayer           Thomas Rohracher
2009  Belgium         Philippe Roberti d Winghe  Herve de Liedekerke
2009  Canada          Pierre Tourigny            Jean-Francois Lemay
2009  Czech Republic  Jan Stovicek               Ludek Trykar
2008  France          Jean-Francois Veroux       Robert Lagulhon
2010  Germany         Dieter Rosskopf            Waltraud Wunsch
2010  Great Britain   Anthony Scrivener QC       Edwin Glasgow QC
2010  Greece          Vassilis Koussis           Costis Bakopoulos
2010  Ireland         Reginald Redmond           Cecil Sparks
2009  Italy           Francesco de Beaumont      Salvatore Aleffi
2010  Monaco          Philippe Narmino           Laurent Anselmi
2008  Netherlands     Harry Duijm                Amos Kroll
2008  Portugal        Jose Macedo e Cunha        Joao Luis Rodrigues
2008  Scandinavia     Carl Christian Hansen (D)  Jan Morten Eversten (N)
2009  Spain           Xavier Conesa Ybran        Pedro Romero Requejo
2010  Switzerland     Thierry Julliard           Patrick Raedersdorf
2008  United States   John Cassity               Steve Braga

The Belgian Member is Philippe Roberti de Winghe, previously President of the Royal Automobile Club of Belgium, who has been with the ICA since 1976. In 2005 he was elected President of the Congress of the International Court of Appeal, which led to reforms in the governance of the ICA that we now see in the current rules.

The British Member is Anthony Scrivener QC, a well-known member of the Bar in the UK, who once represented Team Lotus.

The Canadian Member, Pierre Tourigny, is a lawyer at LaFortune Leduc in Montreal, and was a founding member of Canada's national motorsport authority.

The United States Member is John Cassidy, a partner in the international law firm of Baker Botts, LLP, who has a substantial professional sports practice "and is one of the principal legal advisers to NASCAR and the International Speedway Corporation," according to his biography.

Who is chosen and why from the group of Titular Members to hear a particular case? According to the FIA, the Secretary General of the ICA chooses a panel of a minimum of three judges to hear each case, his choice determined by two considerations.

First, the Secretary General wants a judge to come from a country that is not the same as that of an involved party; second, availability for hearings, which are typically held on short notice, is a practical consideration.

As an example, in the case of McLaren's recent appeal on the fuel temperature issue at Interlagos, the four-Member panel was made up of Jan Stovicek (Czech Republic); John Cassidy (United States); Vassilis Koussis (Greece) and Jose Macedo e Cunha (Portugal).

The ICA meets in London © FIA

The Court of Last Resort

Although the ICA met at Sidley Austin's conference room in London for the recent McLaren appeal, that was because of the threats of a transport strike in Paris.

The ICA usually hears its appeals in an elaborate and well-equipped hearing room at the FIA's Headquarters in 8 Place de la Concorde, Paris. ICA hearings on "sporting" cases (not consultations or arbitration cases) are open to the media, who can watch the proceedings on plasma TV monitors outside the courtroom.

The transparency of the ICA is in contrast to the proceedings of the FIA's World Motor Sports Council (WMSC), which are private, although transcripts of the proceedings are sometimes available after the WMSC hearings.

The WMSC is one of the "trial courts" whose decisions are sometimes appealed to the ICA, as are decisions by the Stewards of the Meeting on race weekends.

What happens if a competitor or national sporting authority does not feel it received a fair shake at the Place de la Concorde?

Article 28 of the ICA's rules states explicitly that the ICA is not the only game in town:

"For the avoidance of doubt, nothing in these rules shall prevent any party from pursuing any right of action which it may have before any Court or Tribunal, subject always to any obligations it may have accepted elsewhere first to pursue other remedies or alternative dispute resolution mechanisms.

"By accepting a license, and/or applying to participate in any event listed on the FIA's international Calendar, all competitors and license holders accept and acknowledge the obligation first to use the procedures mentioned in the ISC and in the present Rules.

"Where, notwithstanding and without prejudice to the above, any party seeks to establish an alternative, additional or further right to action before any other body, court or tribunal, such parties acknowledge and agree that they shall only pursue such a right of action having notified the body, court or tribunal of the existence of the obligations contained in this Article, even where they dispute whether those obligations apply.

"Furthermore, any parties seeking to establish any alternative, additional or further right of action before any other body, court or tribunal, shall notify the FIA adequately, a the earliest opportunity, and, at the latest, at the time such action is undertaken." (Emphasis added.)

McLaren boss Ron Dennis © LAT

As a practical matter, on the few occasions when going outside the ICA "system" to a national court such as the High Court in London has been tried, the appellant has generally not been successful, since national courts are understandably inclined to defer to a specialised administrative tribunal like the ICA because of the special expertise a body like the ICA brings to issues arising in the context of motor sport.

Who is the most vocal supporter of retaining the right to resort to the national courts? Not surprisingly, in light of recent events, it is Ron Dennis of McLaren.

Dennis has always questioned the efficacy of the ICA process, even to the extent of writing to the European Commission to make his case for requiring an external route for appeal to national courts and "reasoned decisions" from the ICA.

But significantly, even when a fine of US$100 million was imposed on McLaren in the recent infringement/espionage case, Dennis did not exercise his team's right to challenge the FIA's decisions in the High Court in London, McLaren's national tribunal.

As Mosley has put it, "as a matter of law, it has always been possible to challenge our Court [of Appeal] in the ordinary courts. This has indeed been done on several occasions in France, but never successfully."

The Next Case: Renault?

All French people know that the guillotine stood in the corner of the current Place de la Concorde near the Hotel Crillon, where the statute of Brest can be found today.

It is said that during the Reign of Terror in France, the sheer number of people being disposed of by the guillotine ultimately led to a sense of ennui and disenchantment among the members of the public, who early on showed up in droves for these proceedings, but later on stayed away, the tiresome repetition of the blades dropping and heads being severed having lost its allure.

Flavio Briatore has said, in the wake of the WMSC's decision not to impose a penalty on Renault F1 in the latest alleged espionage case, that Renault is considering bringing a litigation against McLaren for defaming Renault F1.

He might consider the reaction of the French back in the 18th century in tiring of too many executions in the Place de la Concorde...