The Role of the Swiss Federal Tribunal and Its Impact on the Court of Arbitration for Sport (CAS)

Abstract

The Court of Arbitration for Sport (CAS) is an arbitral institution with its seat in Lausanne, Switzerland. As such, it is subject to the more general legal framework of international arbitration in Switzerland regulated through the Swiss Private International Law Act (Swiss PILA). The Swiss PILA emphasizes the parties’ autonomy in the conduct of the arbitration proceedings and limits the intervention of state courts to the strict minimum. Within this context, arbitral awards are final upon their notification and can only be challenged before the Swiss Federal Tribunal (SFT) on a very limited number of grounds, exhaustively enumerated in Art. 190(2) PILA. Notwithstanding the “limited” role that the Swiss legislator reserves to the SFT, Switzerland’s Supreme Court has so far rendered numerous judgments in motions to set aside CAS awards. In this respect, the SFT plays a major role in the structure and development of CAS: first, the SFT controls both the legality of CAS as an arbitral institution and the legality of CAS awards as such; second, the SFT may confirm, reject or more generally interpret some of the procedural provisions of the CAS Rules and the law applicable to the merits. This working paper provides an overview of how the SFT judgments have two-fold impact on the functioning and development of CAS as an international arbitral tribunal.

Keywords: Court of Arbitration for Sport, arbitration, sports arbitration, Swiss Federal Tribunal, due process, arbitral tribunal, Swiss Private International Law Act, sports law