Lex sportiva as the contractual governing law
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ARTICLE
Lex sportiva as the contractual governing law Leonardo V. P. de Oliveira1
Published online: 10 November 2017 The Author(s) 2017. This article is an open access publication
Abstract Contracts involving sports matters, such as the participation of an athlete in an international sports competition, would normally have a clause submitting disputes to arbitration under the rules of the Court of Arbitration for Sports. As a result, in international sports disputes, the subject matter of disputes has been predominantly decided by a private tribunal. In making such decisions, the Court of Arbitration of Sports has been interpreting and applying the rules established by sports governing bodies. Consequently, in its 30 years of existence, the Court of Arbitration for Sports has produced a rich jurisprudence regarding sports disputes. Such body of case law, combined with the rules of the sports governing bodies, has created what today is called a lex sportiva. Hence, this paper aims at analysing the concept of the lex sportiva to trace a parallel to its closest source of transnational law, the lex mercatoria. From that, following the principle of party autonomy, it will be argued if lex sportiva is already the governing law in some sports-related contracts or if it is desirable, whether lex sportiva can become the governing law to a contract in the same manner that today lex mercatoria can be the parties’ choice of law in a contract. Keywords Lex sportiva Party autonomy Applicable law to contracts
L. V. P. de Oliveira would like to thank Mr. Tom Serby and Dr. Johanna Hoekstra for the comments on the early draft of this article. All mistakes of interpretation and translations are the author’s own. & Leonardo V. P. de Oliveira [email protected] 1
Lecturer in Law, School of Law, Royal Holloway, University of London, Egham Hill, Egham TW200EX, UK
1 Introduction Establishing a governing law to a contract facilitates the performance of the contract and it provides a guide on how to solve disputes arising out of such contract. The ordinary option would be use of a domestic law to regulate the rules of a contract. However, the development of contract law, especially in international transactions, allows the employment of a system of laws with a transnational character to be the lex contractus.1 As a result, different approaches are being used as the applicable law, such as the lex mercatoria, general principles of law, soft law and general principles of public international law.2 The mentioned examples do not represent an exhaustive list, being part of a bigger group of global laws which are not created by states.3 In this global cluster, other transnational laws developed from different areas of law such as in sports law. It is hard to neglect that there is a body of law created by reiterated decisions regarding sports disputes issued by the Court of Arbitration of Sports (CAS).4 Such jurisprudence has been called lex sportiva, which has also been recognised as a source of transnational law.5 But that is
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