Requisite Elements Of Arbitration Agreement Under Swiss Law

Introduction

The Swiss Supreme Court confirmed recently its practice of constructive interpretation of pathological or ambiguous arbitration clauses.1

Facts

A football club (the "Club") and a football agency (the "Agency", together: the "Parties") had entered into an agreement regarding the transfer of a footballer (the "Agreement"). The Parties agreed that the transfer costs would be shared between them. The Agreement contained the following dispute resolution clause: "The competent instance in case of a dispute concerning this Agreement is the FIFA Commission, or the UEFA Commission, which will have to decide the dispute that could arise between the club and the agent." A dispute arose between the Parties in connection with the transfer fee payment, which the Agency deferred to FIFA Players' Status Committee (the "Committee"). On December 10, 2008, the Committee denied its jurisdiction to hear the claim for lack of standing of the Agency. The CAS Appeals Arbitration Division upheld the Committee's jurisdictional decision (CAS Rules in the 2004 version, R-47 et s.) in January 2009. Having tried in vain to bring the case before a judicially appointed sole arbitrator specialist in sport law, who also denied...