중재의 준거법 선택과 당사자 자치의 제한

The Choice of Ap licable Law and the Limitations of Party Autonomy - Focusing on International Sports Arbitration

Sports disputes have specific characteristics compared to disputes that arise in the field of commerce. One particularity is the judicial system in which the CAS plays a key role as the International Supreme Court for sports-related mat ers. The CAS Code ap lies whenever the parties agre to submit a sports-related dispute to the CAS(Art. R27). Once the parties to the arbitration agre ment have decided that the CAS Code should govern their proce dings. The parties’ autonomy is, however, limited to the provisions of the CAS Code that provide for such a cor esponding autonomy. The ap lication of the mandatory rules contained in the CAS Code can ot be excluded. In CAS appeals arbitration proce dings, the Panel shal decide the dispute ac ording to the ap licable sports regulations and, subsidiarily, to the rules of law chosen by the parties(Art. R58). In international sports disputes, the uniform ap lication and interpretation of the relevant regulations are es ential. Therefore, Art. R58 should be ap lied as a mandatory rule without any changes. Regulations of the sports organizations are to be qualified as valid rules of law. CAS panels may also ap ly the so-cal ed lex sportiva to the merits before considering statutory provisions of national jurisdictions. In this way, the specificities in (international) sports disputes can be taken into ac ount without the ne d to further examine the application of national legal standards.