Die (neue) ZPO und die Sportschiedsgerichtsbarkeit

Abstract

The new law on Swiss domestic arbitration embedded in Art 353 et seq of the Swiss Code of Civil Procedure (CCP) entered into force on 1 January 2011 and replaced the Swiss intercantonal Concordat on Arbitration (ICA) that had been in effect since 1969. This contribution focuses on some of the changes relevant in sports arbitration. Art. 407 CCP regulates the scope of application of the new provisions on arbitration rationae temporis. Art. 407 (1) CCP establishes the principle of "in favorem validitatis" in relation to the arbitration agreement. Art. 407 (2) CCP provides that if the proceedings have been commenced before the entering into force of the CCP the ICA remains applicable as to the procedure. Two questions arise in connection with the application of these provisions, ie whether the principle of "in favorem validitatis" in Art. 407 (1) CCP also prevails if proceedings have been commenced before 1 January 2011 (and continue after said date) and how to differentiate between matters falling under Art. 407 (1) and (2) CCP. The view held here is that Art. 407 (1) CCP is applicable also in cases in which the arbitration was initiated before 1 January 2011 and continued thereafter. However, not all matters included by the parties in the arbitration agreement are automatically governed by Art. 407 (1) CCP. The principle of "in favorem validitatis" established therein only applies to those prerequisites that are indispensable for the validity of the arbitration agreement. According to Art. 353 (2) CCP parties can opt out from the application of the CCP and agree to apply the more liberal provisions on arbitration in the Private International Law Act (PILA). However, contrary to the view taken by some of the legal literature, the conditions for an "opt out"-clause are rather high. In particular, it does not suffice to include such a clause in the statutes and regulations of a sports federation in order to subject a solely domestic dispute to the provisions of the PILA. Particularly in the context of team sports the question arises whether disputes between the employer and the employee are arbitrable. Compared to the ICA the new law is more liberal in this respect, since it does not restrict arbitrability for procedural reasons anymore. However, Art. 354 CCP declares only those disputes arbitrable where the parties can freely dispose of their rights. In the context of Art 5 ICA the Federal Tribunal concluded that this was not the case for all rights and obligations covered by Art. 341, 361 seq. of the Code of Obligations (CO). This jurisprudence equally applies to the new law. In consequence, labor law disputes touching upon the rights listed in Art. 361 seq. CO are only arbitrable if the arbitration agreement was concluded at least one month after the termination of the contract. According to Art. 358 CCP arbitration agreements have to be concluded in writing. The provision alleviates the form requirement to the effect that a signature is no longer needed. It is further undisputed that - in general - the form requirement has to be fulfilled by both parties. Exceptions from this principle should, however, be considered when it comes to statutory arbitration clauses. In these cases it should suffice - in accordance with the principle established under Art. 6 (2) ICA - if only the person joining the corporation/federation complies with the form requirement. Art. 374 CCP now allows arbitral tribunals - like state courts - to grant interim relief. It is unclear, however, how these concurrent jurisdictions shall be coordinated. The view held here is, that - in the absence of a respective party agreement - coordination is primarily achieved by accurately examining the claimant's legitimate interest in obtaining an interim order by the court seized.