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CAS award set aside for lack of jurisdiction of arbitral tribunal

06 March 2013

Authors: Nathalie Voser, Aileen Truttmann

In a German-language decision 4A_244/2012 of 17 January 2013, published on 26 February 2013, the Swiss Supreme Court set aside an award of the Court of Arbitration for Sport (CAS), on the ground that the arbitral tribunal lacked competence to resolve the dispute submitted to it.

In this case, the Court of Arbitration for Sport (CAS) tribunal concluded that an arbitration clause in an employment agreement was valid, without analysing the interplay with a forum selection clause in the same agreement. The CAS tribunal had also failed to take into consideration the Swiss Supreme Court's case law, according to which a new dispute resolution clause in a settlement agreement replaces the dispute resolution clause contained in the initial contract. The parties had entered into a settlement agreement containing a forum selection clause, but no arbitration clause. Irrespective of whether or not the forum selection clause of the settlement agreement was valid, an objective interpretation led to the only conclusion that the parties intended to have their dispute resolved by a state court.

With this decision, the Supreme Court has confirmed that CAS tribunals must strictly adhere to the general principles of interpretation developed in the Supreme Court's practice. This decision might even be viewed as an indication by the Supreme Court that it is not willing to accept that sports arbitration should detach itself further from the well-established principles of international arbitration in general. (Decision 4A_244/2012).

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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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