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Breach of mandatory statutory provisions alone does not automatically constitute violation of Swiss public policy

25 August 2016

Authors: Nathalie Voser; Katherine Bell

The Swiss Supreme Court has rejected a petition to set aside an award rendered by the Court of Arbitration for Sports (CAS) for being incompatible with substantive public policy. The court reiterated that an arbitral award is contrary to public policy if it disregards or is incompatible with fundamental legal principles that constitute the basis of any legal system. In this case, the petitioner had argued that the award disregarded mandatory provisions of French and Swiss statutory law, specifically the provisions governing the maturity of salary payments. The court clarified that because a statutory provision is mandatory, meaning that parties may not deviate from the provision by mutual agreement, it does not mean that it falls within the scope of public policy under Article 190(2)(e) of the Private International Law Act (PILA). Therefore, the court found that the petitioner had misconstrued the concept of public policy. (Decision 4A_132/2016.)

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Published in Practical Law Arbitration

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Elliott Geisinger
Elliott Geisinger

Nathalie Voser
Nathalie Voser

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