CAS Provisional and Conservatory Measures and Other Options to Be Granted Interim Legal Relief

Abstract

Article R37 of the CAS Code of Sports-related Arbitration empowers the CAS to grant provisional and conservatory measures for parties bound by the Code. When deciding whether to grant such measures, the CAS reviews whether (a) the relief is necessary to protect the applicant from irreparable harm, (b) the likelihood of success on the merits of the claim and (c) whether the interests of the applicant outweigh those of the respondent. Despite the fact that under the terms of Article R37 of the Code, the parties seeking provisional and conservatory measures expressly waive their rights to request the same type of measures from the ordinary competent courts, jurisprudence shows that state courts at least have parallel competence. First and foremost, the general exclusion of legal protection in advance is not valid as the CAS system does not offer a protection similar to the state courts. Additionally, state courts can usually act faster than the CAS. If third parties are affected, the CAS has no competence whereas state courts can order provisional measures against third parties. Contrary to provisional measures issued by state courts, there is no possibility to appeal provisional measures ordered by the CAS. However, once the CAS has issued its arbitral award, interim legal relief can be requested at the Swiss Federal Tribunal.