General Souhail Khoury, General Mowafak Jomaa v. Olympic Council of Asia (OCA)

At a glance

Parties

General Souhail Khoury and General Mowafak Jomaa v. Olympic Council of Asia (OCA), as represented by Mr Raja Randhir Singh; third party: the OCA as represented by Sheikh Talal Fahad Al-Ahmad Al-Sabah

Case no.

CAS 2023/A/10129

Forum and rules

Court of Arbitration for Sport, appeals arbitration under the Code of Sports-related Arbitration; Swiss law applied subsidiarily

Treaty

Arbitration clause: Article 34 para. 4 of the OCA Constitution

Tribunal

Mr Jacques Radoux (President), Mr Olivier Carrard, Prof. Luigi Fumagalli

Sector

Olympic sport governance; election of the OCA President

Outcome

Proceedings terminated and removed from the CAS roll after the Appellants unconditionally withdrew their appeal; the Third Party's objection and its request for a stay were rejected (award of 16 December 2024).

Amount

No monetary claims. Arbitration costs, to be set by the CAS Court Office: 40% borne by the Third Party, 60% jointly by the Appellants.

The dispute

On 8 July 2023 the OCA General Assembly elected Sheikh Talal Fahad Al-Ahmad Al-Sabah as OCA President by 24 votes to 20. The IOC refused to recognise the election. Its Chief Ethics and Compliance Officer reported on 10 October 2023 that there had been undue interference by Sheikh Ahmad Al-Sabah, including through Kuwaiti embassies, and recommended that the election be declared null and void. On 19 October 2023 the former OCA Executive Board (2019–2023), convened by Acting President Raja Randhir Singh, approved the report by 14 votes to 4, with one recusal. The Appellants, members of the OCA Executive Board, appealed to CAS to have that decision declared null and void or annulled. The OCA, as represented by Mr Singh, contested the Appellants' standing, and the OCA as represented by Sheikh Talal was admitted as a third party supporting the Appellants.

Key holdings

1. CAS had jurisdiction under Article 34 para. 4 of the OCA Constitution, since no internal remedies were available and no party objected. The appeal was filed within the 21-day time limit and was admissible. ¶¶ 82–88
2. The Appellants' unconditional withdrawal is a waiver of claim (désistement d'action) under Article 241 al. 2 of the Swiss CPC. It has res judicata effect. CAS therefore no longer has jurisdiction over the appeal, and the Appealed Decision became final and binding on the Appellants. ¶¶ 95–97
3. The Third Party's intervention was not a principal intervention under Article 73 CPC. The Third Party did not claim a better right against both parties, and its requests for relief were quasi-identical to the Appellants'. It was an accessory intervention on the Appellants' side. Article R41.4 al. 5 of the CAS Code also covers accessory interventions, in which the intervenor keeps the status of third party (tiers intéressé). ¶¶ 102–108
4. Under Article 76 CPC, an accessory intervenor cannot oppose the withdrawal or waiver of the claim by the party it supports. The withdrawal, accepted by the Respondent, ended the appeal proceedings despite the Third Party's objection. ¶¶ 111–114
5. The Third Party's interest in deciding who validly represents the OCA disappeared once no appeal was pending. Its request to stay the case pending CAS 2023/A/10232 and CAS 2023/A/10233 was contrary to the Appellants' position and was dismissed. The Appellants' Request for Provisional Measures is deemed withdrawn. ¶¶ 115–116
6. Costs: in principle the withdrawing Appellants bear the costs. Under Article 106.3 CPC, however, part may be imposed on an accessory intervenor. The Third Party's objection made a hearing necessary, so it bears 40% of the arbitration costs and the Appellants bear 60% jointly. ¶¶ 119–122; operative part

Procedural history

1. 8 July 2023The OCA General Assembly elects Sheikh Talal Fahad Al-Ahmad Al-Sabah as OCA President.
2. 27 July 2023The IOC Executive Board decides not to recognise the OCA elections until the election process has been reviewed.
3. 10 October 2023The IOC Chief Ethics and Compliance Officer issues her report recommending that the elections be declared null and void.
4. 19 October 2023The former OCA Executive Board approves the report (the Appealed Decision). Mr Singh notifies the decision on 24 October 2023.
5. 9 November 2023The Appellants file a Statement of Appeal and a Request for Provisional Measures with CAS.
6. 4 January 2024The Panel is constituted.
7. 25 January 2024The Third Party reports that the Swiss Federal Tribunal has rejected its appeal against the CAS Court Office's decision on who represents the Respondent.
8. 23 April 2024Order on Request for Intervention: the OCA as represented by Sheikh Talal is admitted as a third party.
9. 5 June 2024The Appellants withdraw the appeal. The Third Party objects on 7 June 2024. A hearing is held by videoconference on 25 June 2024.
10. 16 December 2024Award: the proceedings are terminated and removed from the CAS roll, and costs are split 40/60.

Tribunal, counsel and experts

Decided by

• Jacques Radoux President
• Olivier Carrard Co-arbitrator — appointed by the claimant
• Luigi Fumagalli Co-arbitrator — appointed by the respondent

For the respondent

Kellerhals Carrard

For other participants

Shahram Dini · Alexandre Zen-Ruffinen · Alexandre Karsegard

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Keywords

• Olympic Council of Asia
• OCA presidential election
• IOC Ethics Commission
• election interference
• sports governance
• withdrawal of appeal
• waiver of claim
• désistement d'action
• res judicata
• third-party intervention
• accessory intervention
• principal intervention
• Article R41.4 CAS Code
• Swiss Civil Procedure Code
• Article 76 CPC
• allocation of costs
• standing to appeal

Summary generated with AI from the published documents — refer to the award for the authoritative text.