... And a conference on Private Military Companies

As a quick follow up to my earlier post, a conference that may be of interest to readers - particularly Francophone readers - of the GAL blog has been brought to my attention:

Colloque
Université d’Auvergne - Faculté de droit de Clermont-Ferrand

Lucrum in bello:
Les entreprises militaires et de sécurité privées dans le monde contemporain

Clermont-Ferrand

4-5 mars 2010

The full programme is available here (and here). There is clearly much that will be of real interest from a GAL perspective, with individual sessions on "le cadre juridique des entreprises militaires et de sécurité privées" and "les questions de responsabilité naissant de l'activité des entreprises militaires et de sécurité privées" (both of the Companies themselves and of the entities that make us of them); and a round table on the issue of "Quel contrôle exercer sur les entreprises militaires et de sécurité privées?".

As far as I can see, registration is free - just contact christiane.baroukh@u-clermont1.fr. Looks like a very interesting event, for those linguistically and geographically able...

New publication on private military companies...

The issues surrounding the use of private military companies have long been of more than tangential interest to the field of global administrative law; it represents in many ways the paradigmatic example of "outsourcing" of public functions (indeed, the public function par excellence) to private actors.

The recent volume edited by Simon Chesterman and Angelina Fisher, Private Security, Public Order: The Outsourcing of Public Services and its Limits (OUP, November 2009) deals squarely with the GAL aspects of this issue. The introductory chapter is available in full here. This is the second edited volume emerging from New York University School of Law's Institute for International Justice project on private military and security companies; the first, From Mercenaries to Market: The Rise and Regulation of Private Military Companies, edited by Chesterman and Chia Lehnardt, was published by OUP in 2007.

Here is the (edited) blurb from the new volume:

Private actors are increasingly taking on roles traditionally arrogated to the state. Both in the industrialized North and the developing South, functions essential to external and internal security and to the satisfaction of basic human needs are routinely contracted out to non-state agents. In the area of privatization of security functions, attention by academics and policy makers tends to focus on the activities of private military and security companies, especially in the context of armed conflicts, and their impact on human rights and post-conflict stability and reconstruction...

[This volume] looks at the transformations in the nature of state authority. Drawing on insights from work on privatization, regulation, and accountability in the emerging field of global administrative law, the book examines private military and security companies through the wider lens of private actors performing public functions. In the past two decades, the responsibilities delegated to such actors - especially but not only in the United States - have grown exponentially. The central question of this volume is whether there should be any limits on government capacity to outsource traditionally "public" functions. Can and should a government put out to private tender the fulfillment of military, intelligence, and prison services? Can and should it transfer control of utilities essential to life, such as the supply of water? This discussion incorporates numerous perspectives on regulatory and governance issues in the private provision of public functions, but focuses primarily on private actors offering services that impact the fundamental rights of the affected population.

And the table of contents:

Introduction — Simon Chesterman & Angelina Fisher

Part I: Accountability gaps
1. The privatization of violence — Michael Likosky
2. The responsibility of states — Olivier De Schutter
3. Accountability to whom? — Angelina Fisher

Part II: Lessons from other sectors
4. The privatization continuum — Daphne Barak-Erez
5. Private prisons and the democratic deficit — Alfred C. Aman, Jr.
6. Regulatory choices in the privatization of infrastructure — Mariana Mota Prado
7. Human rights and self-regulation in the apparel industry — Rebecca DeWinter-Schmitt

Part III: Limits
8. Police informants — Jacqueline Ross
9. Intelligence services — Simon Chesterman
10. Peacekeeping — Chia Lehnardt

11. Conclusion: Private security, public order — Simon Chesterman & Angelina Fisher

Essential reading for those working in this particular field, and well worth a look for anyone interested in the public/private nexus within the field of GAL.

Spot the GAL...

GAL is everywhere; or at least, the demand for it is. From the fantasy football world of the UEFA Champions League (via the Guardian):

The Arsenal striker Eduardo has been banned for two Champions League matches by Uefa having been found guilty of diving during the second leg of their play-off against Celtic.

Uefa's disciplinary panel made the ruling after a teleconference. The panel said the Brazil-born Croatia forward deceived the referee when he was awarded a penalty after a challenge by Artur Boruc, the Celtic goalkeeper, last Wednesday.

Arsenal this evening condemned the "arbitrary" nature of Uefa's decision, but have not yet revealed whether they will contest the ban. A statement on their website read: "The club is disappointed with Uefa's decision to suspend Eduardo. We have been informed that we will receive a "reasoned decision" from Uefa by Thursday of this week. Once we receive Uefa's rationale, we will make a decision on the next steps.

"We have been deeply frustrated by the perfunctory and apparently arbitrary process that Uefa has followed in this instance. We believe it is imperative that Uefa's explanation for its decision provides clear and comprehensive standards that will be consistently enforced. It is also critical that Uefa provides specific details of the processes it plans to adopt in reviewing all games under its jurisdiction."

Anyone interested in the actual incident that has caused this controversy can see it here. Seems a pretty clear cut case of "simulation" (the preferred euphamism of the Italians for this particular form of cheating); Arsenal's point, however - which seems to be that given the prevalence of this sort of thing in the sport, UEFA are going to have a busy time in the future in their efforts to adopt a consistent and coherent line on this - is both true and interesting...

GAL fun in the world of international cricket...

I have been meaning to post for a while now on some of the always entertaining (and often GAL/relevant) machinations of international cricket governance. An interesting storm is brewing in this field once again: the Board of Control for Cricket in India (BCCI) - a hugely important actor in this sector given the popularity of cricket in India and the vast sums of money that can now be generated there around the sport - has decided that it will side with the views of its elite players and refuse to become a signatory to the WADA Code.

Interesting issues of public/private governance are raised here. The WADA is a formally private body, but its Anti-Doping Code is of major public significance, not least after having been formally incorporated into the UNESCO International Convention Against Doping in Sport. According to Gordon Farquhar of the BBC, the Indian Sports Minister and its Olympic association are lobbying the BBCI to change its mind. The BCCI is, however, preparing to propose instead to the International Cricket Council that all cricketing bodies leave the WADA system and adopt a cricket-specific anti-doping code. This seems an unlikely outcome, but given the extraordinary popularity and finaces of the new 20/20 Indian Premier League, I suppose that anything is possible. Will be watching this space over the next few weeks, in any event..

More on the ski-jumping...

I am currently in summer mode, in a mountain retreat, hence the lack of action on here of late (no posts for a month! Worse than I had thought...): I actually have to go into the next town to get online. While my world has regressed to the stone age, however, that of GAL continues apace, and as such I will be making an effort to post at least once a week from now on – if only to cut down on the catching up I will have to do when I get back to the real world.

Talking of catching up, here’s something I should have posted a few weeks ago: a quick follow up to the controversy in Canada over the IOC’s decision to exclude women’s ski-jumping events from the next Winter Olympics, despite the fact that it has organised equivalent men’s events (see my previous post here). On the July 10th, the Supreme Court of British Columbia in Canada handed down its judgment: perhaps unsurprisingly, there will be no women’s ski jumping at the next Winter Olympics. More surprising, however, and of no little interest from a GAL perspective, is the judge’s reasoning in coming to this judgment.

The arguments, put briefly, were as follows: the complainants alleged that the decision to hold men’s but not women’s events in ski-jumping constituted unlawful discrimination under the Canadian Charter of Rights and Freedoms. They recognised the the International Olympic Committee was not subject to the Charter; however, they argued that the Vancouver Organising Committee (VANOC) was (despite the fact that it is a formally private body), and that as such it could not organise an Olympics on Canadian soil that had one event but not the other. They also recognised that VANOC did not have the power itself to organise the inclusion of a women’s event (only the IOC can decide on which events are included), but that a finding that VANOC was acting unlawfully would in effect compel the IOC to take remedial action. Thus, in effect ,the claim was that a domestic court should make a “bottom-up” demand for GAL within a private global administrative body.

As noted above, VANOC is formally a private body, although with signficant government involvement from the federal, state and local levels. The judge first inquired as to whether VANOC could be held to be “controlled” by the Canadian government (and there is an interesting review of the Canadian jurisprudence on the requirements of this for those interested) – holding, ultimately, that it could not. Despite significant input into decision-making and funding, the day-today running (“effective control”) was clearly that of the IOC.

(Incidentally, the judge also noted in passing - para. 14 - that there is a real difference between “effective” and “ultimate” control, dismissing the argument that the Canadian Government had the latter. Someone should really tell the EctHR…)

The other way in which the Charter can become applicable to a formally private body within Canada is if that body is conducting “a truly governmental activity”:

53. The IOC owns the Olympic Games and has control over their delivery, but it does not actually stage the Olympic Games. That is left to others. The question I must answer is whether staging the 2010 Games is a truly governmental activity.

54. In answering this question, I must bear in mind that it is not sufficient for an entity to be performing a public function; nor is it sufficient that the activity can be described as public in nature… In McKinney v. University of Guelph, … La Forest described as truly governmental “activities that can in some way be attributed to government” and “specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government”.

56…. In my view, hosting the 2010 Games is uniquely governmental in nature. The 2010 Games are intended to bring together the nations of the world as the guests of one nation and one city. They are not awarded to a private entity, but to the host city. The 2010 Games are known as the “Vancouver 2010 Olympics”. Historically, governments hosted the Games directly… While the historical role of government is not conclusive, it is one factor that supports the governmental nature of the Olympic Games.

61. Rule 33(2) of the Olympic Charter provides that “[t]he honour and responsibility of hosting the Olympic Games are entrusted by the IOC to a city, which is elected as the host city of the Olympic Games.” Rule 34(3) of the Olympic Charter also requires that:
The National Government of the country of any applicant city must submit to the IOC a legally binding instrument by which the said government undertakes and guarantees that the country and its public authorities will comply with and respect the Olympic Charter.

62. In my view, the IOC would not have awarded the 2010 Games to Vancouver without the backing of all four governments.

63. The governments’ decision to bid for the 2010 Games and to host them is an act of government that could not have been undertaken by any other entity. The staging of Olympic Games in Canada is, in my view, a rare but uniquely governmental activity. The governmental nature of the activity is borne out by Canada’s imposition on VANOC of obligations similar to those imposed by s. 25 of the Official Languages Act…which applies to bodies acting on behalf of the Canadian government. Further, Canada and British Columbia have both imposed procurement policies on VANOC, including those related to the nationality of goods and Canada’s international obligations in relation to procurement. Similarly, Canada has imposed on VANOC its policies in relation to tobacco advertising and restrictions on certain investments. Canada will take part in planning the opening and closing ceremonies to ensure that they reflect Canada’s cultural diversity and linguistic duality; the governments have also imposed on VANOC pay equity and equal employment standards.

Noting, in passing, a 1984 US judgment that held that the the equal protection rights under the Fifth and Fourteenth Amendments of the U.S. Constitution were applicable to the Olympic Games in Los Angeles, despite the fact that these were run by the Los Angeles Olympic Committee (the equivalent of VANOC), the judge thus held that VANOC is carrying out a governmental function, and as such is bound by the provisions of the Charter: “A governmental activity carried out through a private entity that is not controlled by government should be carried out in a manner consistent with the Charter, whether that activity flows from legislation, government policy, or contract.” (para. 72)

The next question, then, was whether there had been discrimination. Here, the judge found in the affirmative: that, even although the women’s event failed to meet the IOC’s universality requirements (i.e. enough countries participating to a high level), this was also the case for the men’s event, which had been given a special exemption due to its historical presence in the games. All agreed, however, that the IOC, albeit the source of the discrimination, could not be brought before the Canadian court under the Charter.

113. The plaintiffs argue that by implementing the direction of the IOC not to plan, organize, finance, and stage a ski jumping event for women, VANOC imports the IOC’s discrimination… It is the plaintiffs’ view that the IOC can make decisions that draw distinctions between the benefits it provides to men and women in its activities in Switzerland, but VANOC cannot implement discriminatory decisions in carrying out the Olympic Programme in Canada.

It is at this final point, however, that the judge disagreed – finding that mere implementation of a decision over which the body in question had no control could not itself create a violation of the Charter:

121. VANOC cannot be held to be in breach of the Charter in relation to decisions that it cannot control. VANOC did not make the decision to exclude women‘s ski jumping from the 2010 Games. VANOC did not support that decision. VANOC does not have the power to remedy it.

123. In my view, having found that VANOC is subject to the Charter with respect to ascribed activities that are governmental in nature, it must follow that only those activities and the decisions that VANOC has the ability to make while delivering those activities can be the source of a breach of the Charter. Staging the 2010 Games is a governmental activity. VANOC must therefore stage the Games in a manner consistent with the Charter. However, designating events as “Olympic events” is neither part of that governmental activity nor within VANOC’s control.

124. I acknowledge that there is something distasteful about a Canadian governmental activity subject to the Charter being delivered in a way that puts into effect a discriminatory decision made by others, but it is VANOC’s conduct that is challenged here. It must be remembered that, in addition to not having control of the impugned decision, VANOC supported inclusion of women’s ski jumping and remains ready and willing to host such an event should the IOC change its decision. There may be exceptions to the general principle that a party should only be found to be in breach of the Charter when the impugned decision is within its authority to make and amend, but if they exist they would be extremely rare, and this is not such a case.

132. There will be little solace to the plaintiffs in my finding that they have been discriminated against; there is no remedy available to them in this Court. But this is the outcome I must reach because the discrimination that the plaintiffs are experiencing is the result of the actions of a non-party which is neither subject to the jurisdiction of this Court nor governed by the Charter. The plaintiffs. application is, therefore, dismissed.

An interesting case, then, and much of interest from a GAL perspective, both in terms of the public/private issue and the possibilities of domestic “bottom-up” demand for GAL from domestic courts in relation to global bodies – even if the judged ultimately baulked at the latter. It is also interesting to speculate on what the wider effects of this decision would be, as there is nothing in the judgment to suggest that it should be limited to the Charter’s governance of sports, or indeed of private bodies carrying out governmental functions more generally. For example: in theory, Canada has no formal control over a UN Security Council Resolution mandating the freezing of an individual’s assets on the gorunds of suspected links to terrorist organisations. Would the application of the Canadian Charter of Rights and Freedoms be just as easily circumvented in this context, I wonder? We are told that the ski-jumpers are currently considering an appeal, so it may be tested futher yet...

Transparency and investment arbitration

Ineresting article in The Economist here, on the growing demand for transparency with respect to international investment arbitration. It notes that Canada and the US are pushing strongly for more openness with regard to these proceedings, but that many - in Europe in particular - are very reluctant to follow suit:

However, sticklers for secrecy may not be able to blind the public with legal science for much longer. Luke Eric Peterson, editor of the Investment Arbitration Reporter, a trade publication, expects a “pitched battle” to break out soon between backers and opponents of transparency. In part this will reflect pressure on governments from citizens and NGOs who want to know more. For example, some Germans, at least, want details of the €1 billion ($1.3 billion) arbitration claim that Vattenfall, a Swedish power firm, has brought against their government under the Energy Charter Treaty.

Hat tip to Peter Spiro over at Opinio Juris, who also makes an interesting point about the institutional competitiveness of investment arbitration:

The fact that international arbitration is institutionally competitive adds an element here not present where tribunals have a decisionmaking monopoly (as in the WTO). I’m not sure which way that cuts, though. Over the long run, arbitration platforms that are open and allow broad participation will enjoy greater legitimacy; in the short, corporate and state arbitral litigants might just prefer to keep things quiet.

ICANN, accountability and capture

The folks over at Intellectual Property Watch have a couple of extremely interesting (if not very recent) pieces detailing recent discussions and ongoing controversies regarding participation, accountability mechanisms and the role for - and risk of capture by - governments in the Internet Corporation for Assigned Names and Numbers (ICANN). Key to these seem to be the role of the US Government in overseeing the formally private regulatory body. ICANN itself seems keen to distance itself from this oversight, while many industry actors, on the other hand, see it as essential to providing effective accountability for ICANN decisions, and to staving off the risk of capture by other foreign governments, and thus losing the benefits of genuinely private regulation.

In the meantime, to add to this complex set of tensions, some states and other public actors - such as, for example, the UN's International Telecommunications Union - have been highly critical of the current role afforded to governments other than the US through the ICANN's Government Advisory Committee, claiming that its contribution is merely "cosmetic". Which, of course, for the most part suits both industry and the US Government down to the ground.

Few cases exemplify better the "added value" that the shift to understanding global regulation as global administration can bring; or the complexities and tensions of the putatively emerging "global administrative space". We have a formally private body clearly performing a public governance function; its activities are the site of ongoing struggles over the best and most effective way of allocating participatory rights and accountability mechanisms between a wide range of different public and private actors; and its administrative activity - the regulation of the internet - is both evidently a necessarily global endeavour (which simply cannot be accomplished by individual states alone) and one that combines the logics of national security, market efficiency and morality (privacy, fairness, obscenity, etc.) in almost equal measure.

Much more research is needed on this particular topic: the IPWatch articles are, however, a good place to start, as are the chapters by Lorenzo Casini and Bruno Carotti (2.1, 5.4 and 5.5) in the GAL Casebook.

IBM demands GAL at the ISO: Fallout from the OOXML affair

I posted a number of months ago, in April of this year, on the controversy that arose within the International Organization for Standardization around its fast-track procedure for approving Microsoft's Office Open XML (OOXML) standard, and in particular over whether that company had been able to exert undue influence over the procedures of ISO. From today's New York Times, we learn that IBM - obviously one of Microsoft's biggest competitors - has announced (as a direct result of the OOXML affair) that it will "[r]eview and take necessary actions concerning its membership in standards organizations", in terms of its new corporate policy aimed at ensuring that technical standards are adopted as the result of a transparent and fair process.

The press release, entitled "To Encourage Improved Tech Standards Quality and Transparency, and Promote Equal Participation of Growth Markets in Globally Integrated Economy", makes plain the relevance of this move to the broader field of global administrative law:

The tenets of IBM's new policy are to:

- Begin or end participation in standards bodies based on the quality and openness of their processes, membership rules, and intellectual property policies.
- Encourage emerging and developed economies to both adopt open global standards and to participate in the creation of those standards.
- Advance governance rules within standards bodies that ensure technology decisions, votes, and dispute resolutions are made fairly by independent participants, protected from undue influence.
- Collaborate with standards bodies and developer communities to ensure that open software interoperability standards are freely available and implementable.
- Help drive the creation of clear, simple and consistent intellectual property policies for standards organizations, thereby enabling standards developers and implementers to make informed technical and business decisions.

It will be interesting to see how this plays out. On one hand, it seems clear that ISO already views its commitment to transparency and due process as one of the fundamental principles of the ISO system - see, for example, the Code of Ethics of the Organization, which provides, inter alia, that ISO Members are committed to "ensuring fair and responsive application of the principles of due process, transparency, openness, impartiality and voluntary nature of standardization". On the other hand, the controversy over the OOXML standard suggests that this might not be functioning flawlessly; and IBM's move is a timely reminder of how powerful private actors - including multinational corporations - can themselves be major players in increasing demand for the establishment of effective administrative law mechanisms within the institutions of global governance.

Chambers: 2 weeks and counting...

Dwain Chambers has taken his case against the British Olympic Association (BOA) before the High Court in England, seeking a ruling that the Association's by-law banning anyone who has ever tested positive for drugs from competing in the UK Olympic team for life is itself illegal. There have been successful challenges against individual bans; this, however, is the first time that the legality of the rule itself has been challenged. See my previous posts on the subject here and here.

It remains to be seen, however, just how much of GAL-relevance will emerge in this case. His legal team have stated as follows:

The basis of Mr Chambers claim is that the bylaw is an unreasonable restraint of trade in that it goes further than is reasonably necessary for protecting the interests of BOA and the public. And further, that the bylaw is inherently unfair and unreasonable given the surrounding circumstances.

This statement thus seems, at first glance at least, to confine the issues very much to domestic administrative law. The key question for our purposes is, to what extent will the conflicting international rules, embodied in the WADA Anti-Doping Code and supported by the International Association of Athletics Federations (IAAF) and the International Olympic Committee (IOC), feature in the deliberations of the High Court? They provide, in Art. 10.2, for a two year ban for a first offence, with a lifetime ban to follow the second time.

One issue, then, is whether this sets a minimum standard in the fight against drug abuse, or the definitive balance between the rights of the individual involved and the legitimate public goal of eliminating drugs from sport. Another is whether the rules of global private (the IOC) or hybrid (the WADA) bodies can have "direct effect" over the bylaws introduced by national administrative authorities, whether formally public or private in nature (in the UK, for example, the National Olympic Committee is a private body; in France and in Italy, on the other hand, they are public in nature).

In any event, the High Court will have to act quickly on this; the BOA has to finalise its team by the 20th of July...

** UPDATE **

I wondered if the timescales involved weren't a little too quick. In the pre-Olympic hearing, which will have to rule in time for final team selection in around ten days, Chambers is only requesting a temporary injunction against the BOA bylaw, which, if granted, would be sufficient to allow him to compete in Beijing. A full hearing would then be held later in the year, doubtless at a more leisurely pace. While, then, the forthcoming decision will not be final, it will nonetheless contain much of interest in terms of outlining the directions in which the opposing arguments will be formulated, and a prima facie decision as to their persuasiveness. For more detail, see here.

Radical changes in internet governance approved by ICANN

From the BBC, we learn that "a complete overhaul in the way that people navigate the internet" has been approved by ICANN (the Internet Corporation for Assigned Names and Numbers) during its recent meeting in Paris. The previously strict rules limiting the number of "top-level domain names", such as ".com" or ".co.uk", are to be relaxed, paving the way for more specific suffixes such as, for example ".sport" or ".nyc".

This will create opportunities and risks in equal measure, particularly with regard intellectual property rights. While companies will be able to fully incorporate their brand names within their web addresses, the possibilities for "cybersquatting" - the practice of unfairly registering domain names in order to make money - will be vastly increased. As the Guardian reports, however, the current move will not create anything like a free-for-all; some domain names could cost as much as ₤250,000, and all applications will have to be approved by ICANN.

Increased will of necessity create increased administrative discretion for ICANN; and the increased stakes in play will in turn mean that demands for accountability and transparency from all relevant stakeholders will only grow stronger. Perhaps it was with this in mind that ICANN published, in January of this year, a document detailing its "Frameworks and Principles on Accountability and Transparency". This document is interesting for a number of reasons, not the least of which being that it confronts ICANN's dual role as a private company fulfilling a public governance function, and the ways in which different stakeholders' expectations of accountability can conflict on that basis. In any event, this is clearly of great importance from a GAL-perspective, and deserves detailed attention in its own right; I will blog on it in more detail later in the week.

Can a double amputee compete in the Olympics? Pistorius v. the IAAF before the CAS

Apologies for two sports-related posts in one day, but a fascinating, if slightly strange, decision has just been handed down today by the Court of Arbitration for Sport (CAS) in Lausanne, relating to the right of a double-amputee sprinter to compete, using specially-designed prosthetic limbs, against able-bodied athletes in sporting events sanctioned by the International Association of Athletics Federations (including, of course, the forthcoming Olympic Games in Beijing). Oscar Pistorius, a 21-year old South African sprinter, is already the paralympic world record holder over 100, 200 and 400 metres.

The case before the CAS arose over whether Pistorius' use of the prosthesis known as the Cheetah Flex-Foot contravened IAAF Rule 144.2, which was newly amended in March 2007 (with, in the view of the Arbitration Panel at least, Pistorius' particular case in mind) to prohibit, inter alia,

(e) The use of any technical device that incorporates springs, wheels or any other element that provides the user with an advantage over another athlete not using such a device.

The IAAF then conducted a series of scientific tests on Pistorius in 2007, in order to determine whether his prosthetic limbs did in fact give him such an advantage, culminating, in January 2008, with an IAAF Council Decision (no. 2008/01) that

a. running with these prostheses requires a less-important vertical movement associated with a lesser mechanical effort to raise the body, and

b. the energy loss resulting from the use of these prostheses is significantly lower than that resulting from a human ankle joint at a maximal sprint speed.

On this basis, then, the IAAF concluded that the Cheetah Flex Foot was a device prohibited under Rule 144.2(e), and thus banned Pistorius from participating in international sporting events that it sanctioned. The case before the CAS raised three points, each of which is of direct and significant interest from a global administrative law perspective (see para. 53 of the Decision):

1) Was the process leading to the IAAF Decision procedurally unsound?
2) Was the IAAF Decision unlawfully discriminatory?
3) Was the IAAF Decision wrong in determining that the use of the Cheetah Flex Foot contravened Rule 144.2(e)?

It's hardly necessary, but to frame this in terms of global administrative law in particular, we have the administrative action of a private global regulatory body (the IAAF) affecting the interests of a private individual (Pistorius) held to account ex post by a private arbitration tribunal (the CAS). In many ways an entirely "private" dispute, then; yet the influence (we may even say the application) of the rules and mechanisms of public administrative law is simply undeniable. The three issues dealt with in the case run the whole range of those commonly raised in terms of court-based oversight of administrative action: the formal, due process question; the human rights-based non-discrimination question; and even the the possibility of a critical re-evaluation of the substance of the administrative decision in question. (Indeed, had counsel for Pistorius not dropped (see para. 55) his initial claim - that the IAAF didn't have the jurisdiction to adopt the decision in the first place - we would also have had a consideration of ultra vires, making a pretty complete set of administrative oversight questions).

Procedure
The actual Panel Decision itself is no less interesting than the facts promised it would be. The Panel spends some time dealing first with the procedural issue (paras. 56-71), and finds it wanting in a number of ways: finding that, for example, the second set of scientific tests was limited to finding only if the athlete had an advantage the part of the race in which he was strongest, and did not consider the balance of advantage and disadvantage over the race as a whole (para. 61); that the scientific experts nominated Pistorius had been denied participation, having effectively been "frozen out" of the testing process (paras 62-63); that the IAAF voting procedure was rushed and otherwise unsatisfactory, in that insufficient and inaccurate information was given to the IAAF Council (paras. 64-67); and that there was evidence of prejudice among some leading IAAF officials (para. 68).

There are two points of great interest in the Panel's Decision in this regard. Firstly, it seems clear that, despite the private nature of all parties involved, there is a public law sensibility being applied to the issue of procedural propriety. There is no attempt to evaluate the conduct of the IAAF according to its own standards (or those of an implied "contract" between that Organization and Pistorius); rather, the evaluation is informed by a more general sense of "fairness" and community expectation:

In the Panel's view, the manner in which the IAAF handled the situation of Mr. Pistorius in the period from July 2007 to January 2008 fell short of the high standards that the international sporting community is entitled to expect from a federation such as the IAAF (para. 77).

The second interesting, if slightly odd, feature of the Panel's Decision on the procedural issue is that, immediately after having made this finding, they go on to conclude that it "makes little difference, if any, to the outcome of the appeal" (para. 78). The proceedings before the CAS in this case were a de novo process, in which the facts are to be evaluated anew, "in a judicial manner", on the basis of the evidence and submissions of the parties in the case. The question remains, then, of why the Panel spent the time it did making the finding that the IAAF process was insufficient, only to find this issue irrelevant to the case...

Non-discrimination
Pistorius also argued that the IAAF Decision breached the legal requirement of non-discrimination, in that they did not seek to find an appropriate alternative solution to allow him to participate in IAAF-sanctioned events on an equal basis with all able-bodies athletes. Interestingly, the Panel deals with this (presumably pursuant to Pistorius' claim) in terms of the newly in force Convention on the Rights of Persons with Disabilities (see my earlier post on this Convention here).

The issue was not, however, whether the Convention was binding directly on the IAAF, but rather (apparently, the Decision isn't very clear on this point) whether it could be said to form part of the law of the Principality of Monaco, to which the IAAF is subject (as it has its seat there). This seems like an extremely weak argument, and was dismissed by the Panel. Not only did the Convention only enter into force in May 2008 (after the contested IAAF Council Decision in January), but Monaco has neither signed nor ratified it. Moreover, the Convention requires only that States "take appropriate measures" with "a view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities". Hardly directly effective, or even particularly mandatory, language; and in any event, the "equal basis" requirement is precisely the question at issue in the contested IAAF Decision. All in all, then, the non-discrimination claim here seems to have been a bit of a non-starter; the attempted reliance on the new Convention is interesting, if a bit... odd.

Substance
Entertainingly, the Panel derides the amendment to IAAF Rule 144.2 ("without implying any criticism of the draftsman") as being a "masterpiece of ambiguity" (para. 80). In general, however, they find that the advantage conferred must be an overall net advantage; the fact that the prostheses help in one part of the race must be balanced against any part in which they are a hindrance (i.e. the Cheetahs help Pistorius gain speed over the final straight, but they actually impede his speed over the first 200 metres compared to an able-bodied athlete. This must be taken into consideration, and wasn't in the key stage of the IAAF's scientific testing). There was agreement that the burden of proof fell on the IAAF in the case, and that the relevant standard of proof was the "balance of probabilities" (paras. 86-87). On the basis of the scientific evidence available, the Panel concluded that the IAAF Decision had failed to satisfy even this burden of proof; on this basis, it revoked Decision 2008/01 with immediate effect, allowing Pistorius to compete in international IAAF-sanctioned sporting events.

An interesting judgment, then (even if the Panel insisted (paras. 101-104) on limiting any precedential value by stressing that this judgment applies only to this particular athlete using these particular prostheses; and that, moreover, should new evidence come to light, the IAAF would be entirely entitled to reintroduce its prohibition), and one that demonstrates with exceptional clarity the relevance of public, administrative law mechanisms to even ostensibly entirely private realms of global regulatory governance.

Chambers to take case against BOA to High Court

Like him or loathe him, it's great news for GAL: the BBC is reporting that Dwain Chambers has initiated proceedings before the High Court in England against the life ban imposed on him by the British Olympic Association (see my earlier post for more detail), arguing that a life ban for a first offence is illegal under the WADA Anti-Doping Code, which provides only for a two year suspension (with a life ban for a second offence). This will furnish us with an interesting insight into whether the standard-setting of a hybrid public-private global administrative body can be upheld in court as superior to those of a national administrative body (a private body in the case of the BOA, but other national Olympic associations - such as, for example, in Italy - are fully public bodies).

What makes this now particularly interesting is that Chambers has recently begun to cooperate fully with UK anti-doping authorities, providing them with a letter from Balco supplier Victor Conte detailing his precise drugs regime, and how he managed to evade the testers for so long. Whether the BOA will argue that this proves that his first time being caught was not his "first offence", or whether instead they will take it as an opportunity to soften their stance as a reward for "good behaviour", remains to be seen. In any event, we'll be keeping a close eye on this one...

ISO controversy over Microsoft OOXML standard

From Aaron Shaw's Weblog, we learn that Microsoft has, it would appear, won the lengthy battle to have its Open Office XML format designated as "standard" by the ISO, which has in effect reversed a vote it took in September 2007 against such a course of action. New York Times has a (very basic) story here; Shaw's blog deals with it in considerably more critical detail here and here.

The New York Times piece does not, in its passing mention of Microsoft's "intense lobbying campaign" and the "pressure" applied by the company on ISO members, do justice in any way to the scale of the controversy surrounding this decision. The Chair of the Norwegian standardisation body, Standard Norge, wrote to the ISO asking for the "yes" vote of the Norwegian delegation to be suspended, as the decision did "not reflect the view of the vast majority of the Norwegian committee, 80% of which was against changing Norway’s vote from No with comments to Yes". (More detail and links on the Norwegian element of the controversy can be found here). Further, Jomar Silva, a Brazilian delegate (one of the countries that still voted against) has posted his own account of what went on, and how the vote was manipulated in favour of Microsoft.

These obviously raise serious GAL issues in terms of the decision-making processes and procedures at the International Organisation for Standardisation, particularly with reference to the rules and mechanisms that it has, as a private body charged with what is in effect a public (standard setting) regulatory function, established in order to protect itself from the risk of regulatory capture by powerful private interests. The global administrative law of the ISO is something that requires careful research (and, indeed, is receiving just that from some scholars already); after this controversy, one suspects that whatever protections against capture are in place, they might not be sufficient.

**UPDATE** It's official.