The Pechstein case: Transnational constitutionalism in inaction at the Bundesgerichtshof

A few months ago, I wrote a piece on this blog entitled ‘The Pechstein case: Transnational constitutionalism in action at the Bundesgerichtshof’, in which I argued that the Pechstein case, then pending in front of the BGH, should be understood as a transnational constitutional matter. Johanna Croon-Gestefeld already picked up on my blog, to argue that Tuesday’s decision of the BGH in the Pechstein case can hardly be understood as exercising a constitutional control on the Court of Arbitration for Sport (CAS). I entirely share her view that this judgment is a missed opportunity and that transnational constitutionalism should look differently. In this blog, I would like to go a bit further and try to explain why the BGH failed to understand the constitutional dimension of this case and especially to properly assess the independence of the CAS.

The first striking element of the press release of the BGH is its difficulty to acknowledge the forced nature of CAS arbitration. In its last paragraph, it starts by stating that “Die Klägerin hat die Schiedsvereinbarung freiwillig unterzeichnet.” This is surely true if you mean that she freely decided to become a professional speed-skater and participate in high-level competitions. Yet, as pointed out by the BGH itself in the following sentence, this ‘consent’ is very much “fremdbestimmt” (decided by a third-party). Can individual consent be deemed free when it is forced by a third-party? The paradoxical reasoning of the BGH betrays its unease with the necessity to acknowledge that CAS arbitration is post-consensual in nature (an unease shared by the Swiss Federal Tribunal (SFT) in its Cañas case). Indeed, arbitration is traditionally legitimated by the free consent of the parties.

But in certain domains, investment arbitration and sports arbitration for example, international arbitration has turned post-consensual ...

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