64 Clause 1 is concerned with the subject of "Jurisdiction". It commences in cl 1.1 with a recitation of the rights of appeal to the Tribunal and to the CAS pursuant to cl 7.1 of the Selection Agreement between the AOC and the JFA. Although cl 1.3 uses the formulation "agree … to refer the dispute", it was not intended by the parties to that document to constitute a "reference". The operative words in cl 1.3 are found in the words "on the terms and conditions". These words refer to the provision for the conduct of the arbitration set out in cls 2-14 of the Order of Procedure. The Order of Procedure is not, in our opinion, an agreement to refer, within the definition of "arbitration agreement" in s4(1) of the Act. The Order is, as it purports to be on its face, an agreed set of steps for the conduct of an arbitration.
65 The law recognises that several interlocking documents may evidence or constitute a multipartite contract (Clarke v Earl of Dunraven [1897] AC 59). That case concerned two participants in a yacht race each of whom had executed a document with the race organiser but not, in form, with each other. Lord Herschell said (at 63):
I cannot entertain any doubt that there was a contractual relation between the parties to this litigation. The effect of their entering for the race, and undertaking to be bound by these rules to the knowledge of each other, is sufficient, I think, where those rules indicate a liability on the part of the one to the other, to create a contractual obligation to discharge that liability.
See also Cheshire and Fifoot's Law of Contract 7th Australian ed (1996) par [3.7]; McCannell v Mabee Maclaren Motors Limited (1926) 36 BCR 369 (motor dealers contracting with manufacturer held bound to each other by the terms of their agreement).
66 A framework of mutual promises was contained in clause 7 of the Selection Agreement and those parts of the Code which embodied an agreement to arbitrate or stipulated its vital terms (including "seat"). The framework was not set in concrete, but that presents no juridical obstacle to a valid contractual regime (Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11, 110 per McHugh JA). In fact there were no variations to the vital terms of the mutual submissions to arbitration or their attendant exclusion agreement.
67 Beyond AOC and JFA the framework was open-ended as to parties, initially. However, after selection on the Shadow Team, individual athletes were invited to adhere to the Selection Agreement through execution of Nomination Forms and Team Management Agreements. By these means, each adherent promised in favour of the others that he or she would abide by the rules attending the contest in which they were engaged, ie for Olympic nomination and selection. Such a multipartite agreement is enforceable, notwithstanding traditional notions of offer and acceptance (Clarke v Earl of Dunraven, Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 at 80ff, Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 at 177ff). In Integrated Computers McHugh JA said (at 11, 117) that:
… a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words … The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement.
68 The JFA's offer to embark on the nomination process in accordance with the Selection Agreement if the athletes in turn submitted to the arbitration conditions was consideration for the multipartite agreement. The mutual promises to submit to arbitration were also consideration passing from each athlete to the other.
69 The relevant documentation is variously described by the use of the words "agreement" and "form". It creates a range of separate and interlocking contractual arrangements between and amongst the AOC, the JFA and individual athletes. In our opinion, the relevant arbitration agreement is multipartite. So too is the exclusion agreement. Each agreement is constituted by a number of interconnected documents, which satisfy, for purposes of the definition of "exclusion agreement", the requirement of writing. Persons became parties to the two agreements by conduct, sometimes including acts of signature on documents.
70 The umbrella agreement is the Selection Agreement dated 27 September 1999 between the AOC and the JFA. That document annexes each of the other relevant documents as well as the Nomination Criteria and Participation Criteria the construction of which was the primary issue in dispute on the merits before the arbitrator.
71 When it was executed on 27 September 1999, the Selection Agreement bound only its parties, the AOC and the JFA. In its totality it continued to bind only those parties. However, the Agreement - clause 7 (Appeal Process) in particular - offered the comprehensive framework for a two tiered arbitration process, providing both an agreement for arbitration and (as we shall demonstrate below) an "exclusion agreement". AOC and JFA bound themselves to accept that framework so far as it touched their interests.
72 Clause 7 of the Selection Agreement purported to confer, regulate and restrict the rights of athletes to pursue nomination disputes, including rights inter se. The drafters of that Agreement obviously contemplated problems with the law of privity of contract, because other provisions in the Selection Agreement addressed the way in which athletes would adhere legally to its contractual regime.
73 First, copies of the Selection Agreement with its annexed specimen Nomination Form and Team Membership Agreement were to be sent to members of the JFA's selected Shadow Team.
74 Secondly, the JFA committed itself to AOC that an athlete would not be nominated for the Olympic Team unless he or she had previously submitted a signed Athlete Nomination Form (4.1(4)). This occurred as regards Ms Raguz on about 14 April 2000 and Ms Sullivan some time in June 2000.
75 Thirdly, the JFA committed itself to recognise that AOC selection of an athlete to the Olympic Team was conditional upon that athlete having previously signed the Team Membership Agreement (5.3(1)). The evidence shows that JFA then set about ensuring that likely candidates for selection did sign the Team Membership Agreement. Ms Raguz did so on 14 March 2000. The evidence does not record if or when Ms Sullivan signed (although she almost certainly did so), but that is not critical to the case because the proceedings before the CAS, and in this Court, were concerned only with the nomination phase of the process. The relief sought by Ms Sullivan, and granted by the arbitrator, was an order requiring the JFA to withdraw its nomination of Ms Raguz and to nominate Ms Sullivan. On this basis the Team Membership Agreement, which is directed to the process of selection by the AOC, is not engaged in the present issue.
76 The Nomination Form signed by Ms Raguz adverted to the Selection Agreement and independently reiterated the critical provisions which were both an arbitration agreement and an exclusion agreement.
77 By the various documents signed by them, the two athletes, the JFA and the AOC severally committed themselves to the arbitral regime provided for in clause 7 of the Selection Agreement and the Code of Sports-related Arbitration. That commitment preceded Ms Sullivan's invocation of the appellate jurisdiction of the CAS. Indeed it was because of that commitment (by JFA and AOC) that she was able to invoke that jurisdiction.
78 Ms Sullivan appealed from her "non nomination" in terms of her Nomination Form. Ms Raguz had agreed in her Nomination Form to an identical regime with respect to "any dispute regarding" her own "nomination". The two documents merge into a single agreement. At a time which it is not necessary to decide, but in any event no later than the signature on the Nomination Form, each athlete by her conduct agreed to become a party to the relevant agreement.
79 The parties to the arbitration agreement and the exclusion agreement are the same. In the context of the umbrella nature of the Selection Agreement, there is not, in our opinion, a separate "arbitration agreement" and a separate "exclusion agreement" between each athlete and the JFA and the AOC.
80 Each athlete knew that every other member of the Shadow Team would both be shown the Selection Agreement and be required to execute the standard Nomination Form (and subsequently the standard Team Membership Agreement). This was plainly intended to be an integrated scheme, particularly in a context where a claim by one athlete to a right of nomination (or selection) may, and in the present case must, have the consequence, of denying nomination (or selection) to another.
81 Significantly the agreement of each Athlete to refer disputes to arbitration was concerned not only with her own "non-nomination" - in which case the signatory would be the aggrieved party - but extended expressly to her "nomination" - in which case the signatory would be a third party. Each nominated Athlete understood that each other Athlete could only appeal her omission - and therefore the nominated Athlete's inclusion - in the stipulated manner.
82 In our opinion the arbitration agreement and the exclusion agreement constituted by these documents is a single agreement between the JFA and the AOC, on the one hand, and all the relevant athletes, on the other.