On The Application Of Substantive Laws Of CAS

Court of Arbitration for Sport (CAS) classifies the whole arbitration proceduralinto three parts: ordinary arbitration, appeal arbitration and ad hoc arbitration. It alsohas established three mode on application of substantive laws respectively through itsown rule system, they are the R45,R58of CAS CODE and R17of the OlympicArbitration Rules, it is these three rules that construct the whole framework ofapplication of substantive laws in CAS.The mode of application of substantive laws in ordinary arbitration mainlyconsists of the priority of party autonomy,substitute application of Swiss law whichincluding the situation that the applicable law chosen by the parties cannot entirelysolve the whole dispute.In addition,the panel can make a decision according to the exaequo et bono after get the parties’ authority.The mode of appeal arbitration mainly inthe priority and inevitability of applicable regulations,the prerequisite of applying thelaw of the country in which the sports-related body which has issued the challengeddecision is domiciled is the absence of a choice of national law by the parties,and inmaking clear of panel’s discretion.In ad hoc arbitration,the Party autonomy has nolonger aquire the confirmation and priority in application and CAS specifies that theOlympic Chater is the inevitable applicable regulation and provides the generalprinciple and rules of law chosen by the panel can be included in the applicalbesubstantive law explicitly,giving a wide range of discretion to the panel.The application of substantive laws in CAS has certain characteristics: in terms ofthe structure,it has set up different rules of application of substantive laws;in terms ofthe specific applicable rules of laws, regulation has priority,and the application ofnational law has been weakened, the Swiss law gets a wide application in thecircumstance of applying national law, the CAS CASE LAW becomes an importantbasis of substantive laws in making decisions; in terms of the choosing method, itlimits the choices of the parties expressly and recessively.These characteristics are theprofound reflections of the mode of application of substantive laws, resulting fromthe rule system of CAS itself,the sports law constructing system which is broughtabout by the pyramid constructed system of sports organizations, the finiteness ofsports-related disputes and the pursue of the supreme value——uniformity in sportsociety.The existing modes of application of substantive laws has several problems,for example:there are still some ambiguities in current rules of CAS; the the phenomenonof an applicable national law that didn’t apply in the whole case which results fromthe limitation of national law itself and the immobile logic used by CAS whendeciding the application of substantive law;the mode of CAS doesn’t reflectequality.We can conclude that the CAS case law has formed on the ground of thepractice of CAS,but the application of “lex sportiva” should be consideredprudentially.Indeed, the mode of application of substantive laws in CAS is a self-consistentmode. It based on the regulations,and exists the possibility of applying national law,international law, general principles and CAS case law. Finally, the panel makes thesubstantive law achieve the goal of solving disputes effectively by using the discretionof it.