NEWSLETTER-2019-metin

354 NEWSLETTER 2019 Advance on Costs and Late Payment In order to proceed with a case before the CAS, the advance on costs determined by the CAS Court Office upon formation of the Panel must be paid by the parties. This rule also applies, both to the claims subject to ordinary arbitration procedures, as well as appeals, under the appeal arbitration procedure 4 . Together with the amount of the ad- vance on costs, the CAS Court Office also determines the method and the time limit for the payment. The advance on costs is equally paid by the parties. When a party fails to pay its share of the advance costs, the other party is expected to pay instead. In principle, the proceed- ings are deemed to be withdrawn and terminated in the event that the party bearing the burden of payment does not pay the advance costs, or does not pay in lieu of the party that has failed to pay its share of the advance costs under Article 64.2 of the Code of Sports-related arbitra- tions (“CAS Code”). With this regard, late payment of advance costs in CAS proceed- ings raised specific issues before the Swiss Federal Tribunal (“SFT”), which are as follows: (i) Is the termination order of the CAS panel an appealable decision before the SFT? (ii) Does the termination of CAS proceedings as a result of delay in the payment of the advance costs in CAS proceedings violate the right of the related party to be heard? (iii) Does the termination of CAS proceedings, as a result of delay in the payment of the advance costs in CAS proceedings constitute excessive formalism? The SFT addressed these issues in 2016, in case numbered 4A_692/2016, and examined the challenges in a decision of the CAS, which had deemed the appeal withdrawn after the appellant failed to pay the advance costs. Decision of SFT 4A_692/2016 In 2016, the World Anti-Doping Agency (“WADA”) appealed an agreement, namely, the “Acceptance of Sanction” which was con- cluded between a U.S. gymnast and the United States Anti-Doping Agency (“USADA”). The Acceptance of Sanction was concluded af- ter the USADA penalized the gymnast in order to prevent any further 4 CAS Code Article R64.2.