国际体育仲裁院（Court of Arbitration for Sport,以下简称CAS）The authority of the Department of sports dispute settlement body, headquartered in Lausanne, Switzerland, CAS arbitration award by the Swiss law and regulations, with the body is to refer to, the parties to the CAS's decision not to accept the Supreme Court of the Swiss Federal appeals.
The reasons for the appeal are limited to the provisions of the second paragraph of the 190th article of the international private law of the United States of Switzerland, where the fifth appeal grounds are: the arbitration award in violation of public order may apply for revocation. The parties to the Swiss Federal Supreme Court of arbitration cases (including 35.9%[6].) of the Supreme Court of international commercial arbitration cases (including CAS sports arbitration case), of which more than 50% of the number of successful cases, the success of the number of [15], 2006-2013, of which 99 were involved in international commercial arbitration, including 114, 300,,, 41, 246, 40%. Order is not only an important reason for the parties to appeal, but also the judicial practice and legal profession The topic of concern. This study will analyze the attitude and practice of the Swiss Federal Supreme Court on the grounds of the revocation of the decision from the perspective of the theory and practice of the substantive public order.
1 defining the public order
1.1 the basic connotation of the substantive public order
The "public order" in the domestic law, also known as social order, refers to the necessary order in the maintenance of public life by laws and administrative regulations. Fairness [18] interest public (and) [14]. is widely accepted by the judicial practice in China. It is the 150th rule of the people's Republic of China. "According to the provisions of this chapter, we shall not violate the rules of the people's Republic of China." The public order in International Commercial Arbitration (including sports arbitration) means that the court may refuse to recognize and enforce the arbitral award in violation of the public order of the state where the court is located.
Public order is not the specific legal provisions, it is difficult to define its meaning. In the judicial practice, the courts try to define the meaning of public order in the way of defining, listing and precedent. The Swiss Federal Supreme Court in the trial of Matuzalem cases (below 2.1) once defined public order, is a violation of public order is in violation of the general principles of law, in Switzerland, the domestic get recognized the legal value, the basic law and order behavior can be divided into two categories: substantive and procedural, the former can include breach about will keep the principle, the prohibition of abuse of rights principle, the principle of good faith, the collection of compensation principle, anti discrimination and protection of persons with disabilities. However, the above list is not exhaustive, bribery has to a certain extent were found to violate substantive public order.
Substantive public order can be the domestic law, the regional law, the international law and the national level. The key lies in how to define the meaning and nature of public order, because the "public order" in a court or the legal system can not be applied to other courts. From the point of view of the Swiss Federal Supreme Court in the judicial practice, it does not bound set public rank order concept limited in Swiss law level or international level [19].2006, Swiss Federal Supreme Court will "public order" is defined as, according to Swiss obtained widely recognized the concept, legal systems of the general national times acknowledged, and construct a cut law system on the basis of important principle. This definition suggests that, involved if the principle in some countries do not constitute the basic value, does not recognize as a Swiss court should respect public order. The researchers believe that from the above definition can be inferred that the Swiss Federal private international law "in paragraph 2 of article 190 e of entities of public order should contain at least the following two factors:
First, in order to appeal to the substantive public order, the violation must be an important, basic and generally accepted legal principle. As the essence of public order is to protect the value of the judgment authority and maintain the basic order of the implementation of the basic order of the country. The referee has come into effect only when the violation of the most fundamental public order of the state of execution is to be revoked. To "public order" as a reason to refuse to implement the international arbitral awards can only be used in violation of the most basic moral and justice standards. The legal practice of commercial arbitration, the public order and the fundamental moral, justice standards, is an international trend.
In 1927, "Geneva Convention" in the development process, refused to recognize the reasons for foreign referees were summed up as "obvious and within the public policy or basic legal principles," the ruling, "clear", "important" and "fundamental" these words, limiting the common rank order of the law and was "1958 New York Convention" (hereinafter referred to as "New York Convention") are used, therefore, the important, basic and generally recognized as a necessary condition for the public order. As described in Matuzalem's case (2.1), the protection of economic freedom is a basic principle of the Swiss civil code, and therefore, the CAS award is recognized by the penalty measure violated the freedom of the athletes, the Swiss Federal Supreme Court has the right to violate the entity of public order grounds to withdraw.
Second, in the case of substantial public order appeal, it is generally accepted in international conventions and practice. In other words, there are different standards in different countries. Even though the court's judicial practice tends to be strict and cautious, the decision is still valid in one country. International publicpolicy transnational (or) principles, which is established in international law and international relations in various fields of international law and international law, is the Supreme Court of the Swiss Federal Supreme Court of the Supreme Court of the Supreme Court of justice, in order to judge whether the appeal of the list of the Supreme Court of the Supreme Court of the Swiss Federal Supreme Court of law. The Swiss code of debt
Third 160th, third 163rd and 337th D paragraph of the violation, the court considered not as part of the public order, not applicable. The list of the appellant is derived from the basic laws of Switzerland, without reference to the violation of the relevant international treaties, conventions and natural law. The researchers believe that the Swiss Federal Supreme Court in the application of substantive public order, from the definition of real international public order in the selection of the basic principles of universal nature, and then combined with the national legal provisions to make judgments, so that the connotation of the fundamental limit of public order, so that the judicial review of the reasons for starting a more cautious.
1.2 the extension of substantive public order
1.2.1 content
Fuzzy substantive connotation of the public order, the denotations of it. Public order as the last of the safety valve, in addition to separate the grounds of appeal, make clear the matters as the court's discretion, righteousness of the trap. As shown in the New York Convention, public order violation includes "corruption, bribery, fraud, and similar serious circumstances" [5], at present, in legislation and judicial practice, basic enumeration, stare decisis, fallback provisions to induction the extension of public order. Such as the case of Matuzalem (2.1), the Swiss Federal Supreme Court noted that the definition of the substantive public order, and it is difficult to define the scope of the. Only through the exclusion of the relevant elements, in order to better clarify the concept. In violation of the substantive public order, it is more strict than the (arbitrariness), the latter can be found in the fact that the identification or the law applies to the wrong. From the above definition, the Swiss Federal Supreme Court, in addition to the use of precedent, the effectiveness of the list has been recognized by the legal principle, but also to take the exclusion of the method. The violation of public order not only needs to prove the existence of the facts or the application of the law, but also to prove that the serious damage to the implementation of the basic public interest. From the current judicial practice of the Swiss Federal Supreme Court, the principle of a substantive public order:
1 have about the principle of. There is a principle in the international economic exchanges, which means that when the parties sign bilateral or multilateral treaties, the treaty and international law should be bound to fulfill the obligations of the treaty and international law. In sports, to comply with the relevant group of sports fabric rules, regulations or supplementary provisions, also belong to a range about will keep [2], such as International Sports Federation constitution process, the Austrian forest horse grams charter, "the world's anti excitement agent regulations," and other sports organization rules. From the precedent of the Supreme Court of the Swiss federal judge, the arbitral tribunal shall apply the contract terms with the terms and conditions of its own, such as the arbitration tribunal to impose an invalid contract obligations, or to deny an effective contractual obligations, constitute a breach of the principle of the contract, the court only error is not applicable to the contract terms of the act does not constitute a violation of the principle.
2 the principle of prohibition of abuse of power. Ouiiure Animus (utitus nemini farit inicuriam), the system of the right to exercise the right to use the Vicno nocendi Konum (acqum), should be a good idea of the procedure. As to the extent to which the rights should be limited, there is no clear provision. The progressive development of capitalist society, instead of the principle of prohibition of abuse of rights, "the Swiss civil code" second second paragraph: "all the abuse of power, not protected by law. The abuse of power is the exercise of the right of the appearance, but the social nature of the right to violate the law, and can not be regarded as the act of exercising the right [3].. The Supreme Court of the Swiss Federal Supreme Court is based on this principle.
3 principle of prohibition of discrimination. The fourteenth article of the European Convention on human rights provides for the principle of non discrimination, namely, the enjoyment of the rights and freedoms contained in the Convention, not due to gender, race, color, language, religion, political or other opinion, national or social origin, property, birth or other status. The Swiss Federal Supreme Court applies this principle to limit interpretation method, only when the physical organization of the sports organization based on gender, race, religion, nationality and other factors that can be applied to [21]. when the arbitration award or sports discipline punishment decision based on the above factors, the parties may apply to the Swiss Federal Supreme court of the Supreme Court of appeal. Such as the 2014 Winter Olympics in Sochi, born in Argentina skating family of athletes, ISU Argentina due to the monopoly of the family deprived her of her qualification, if sufficient evidence to prove that the accused credible, constitutes a violation of the principle of prohibition of discrimination, but in the end, the arbitration tribunal has not adopted to advocate appeal to athletes.
4 prohibition of forced labor and economic freedom. Under normal circumstances, forced labor is a violation of the will of the parties and the dignity of the human body. Economic freedom principle requires that each person in full accordance with their own will to carry out economic activities. Swiss Federal Supreme Court has ruled that the decision not to respect the dignity of human dignity and the protection of individual freedom of the ruling in violation of substantive public order, even if the principle is not explicitly listed in the relevant provisions. "Swiss civil code" second twenty-seventh paragraph, no person shall let the freedom, or in the exercise of the freedom of damage to moral or legal. Matuzalem case (below 2.1), the appellant in the global scope to prohibit the action of football related to the invasion of a person by the economic self made by the defense, the Supreme Court of the Swiss Federal support. Prohibition of forced labor and economic freedom is an important part of the real public order of Switzerland.
1.2.2 exclusion
Taking into account the special nature of sports arbitration, the Swiss Federal Supreme Court held that the private subject imposed discipline and discipline in the case of the application of strict liability principle does not violate the substantive public order [19]. sports field, the number of disputes caused by doping. To the data published on the official website of the CAS as evidence, from 1996 to 2008, the doping controversy accounted for the proportion of the total cases of 26.5%, especially in 2002, CAS the admissibility of the case a total of 33, 16 cases of doping controversy, accounting for the total number of 48.5%[11]. stimulant abuse punishment dispute is not only a large number of, also has the particularity of sports. First, the general adaptation of doping cases "strict liability principle", athletes in the body of the presence of prohibited substances that constitute doping violations, regardless of whether there is a subjective fault. Second, the doping detection process is strict, the players in the game, after the game must accept the doping test, but also in the non competition period to receive without prior notice of the doping test (doping test) [10], otherwise, will assume the consequences of refusal to accept the test. German ice hockey players after received notice of the detection of the stimulant, failed to in the morning in a timely manner with the officials extracting urine samples, even in the afternoon from urine and found no prohibited substances, also constitute a doping violation, be subjected to punishment.
From the common sense inference, doping detection and punishment to a certain extent, the basic rights and interests of athletes. First, doping testing may violate the privacy of athletes. The athletes in the specific time, the specific area of urine sample, contrary to the athletes' free will. Doping of race detection especially, do not participate in the athletes should at any time to dope testing institutions to report the whereabouts, becking call or face severe punishment of doping violations and suspension. Second, the athlete doping ban may infringe the right of labor freedom. Workers from the flow is one of the four major free of the EU law, athletes because of doping detection is positive not to participate in the relevant competition, the athletes' labor rights, the more so for the professional athletes.
The Swiss Federal Supreme Court in the early decision has been clear, Anti Doping rules not only because of the violation of certain statutory provisions of the public order is identified [20]. this is because: first, the doping violations to be punished is a necessary way to clean up the sport. The World Anti Doping regulations "in the field of international sports get the recognition, the gauge set of Xing Fen agent violates the forbidden line is suitable for" that is illegal, "the principle of punishment, some countries such as Italy, Spain and even taking stimulant criminal behavior, ban will also use the regulations of the criminal law. Second, it is a professional obligation to enter into the body of the athletes.
In doping penalty does not consider whether athletes have subjective fault, does not violate the principle of proportionality, athletes have higher than normal duty to control in all the material, otherwise it will bear ban risks, such as French tennis player Richard Gasquet and cocaine users kissing, cause doping detection in the presence of trace amount of prohibited substances, athletes that prohibited substances source to its tiny negligence, still could not escape punishment ban. Therefore, the doping case should public order as a violation of the exception, not because the principle of strict liability for violation of public order and puts forward the action for annulment.
2 the relevant practice of the Supreme Court of the Swiss Federal Supreme Court
2.1 Matuzalem case
In June 26, 2004, the Brazil professional football player Matuzalem (Matuzalem) and the Donetsk Ukraine Club FC (UkrainianFootball Donetsk Shakhtar, the Ukraine club, the club) signed a contract of employment, the period from July 1, 2004 to July 1, 2009.
On July 2, 2007, Matuzalem failed to notify the club to unilaterally terminate the contract, and do not have legitimate reasons (just cause) or sporting just cause (sporting just cause). On July 19, 2007, Matuzalem and Spanish Real Zaragoza Club (real Saragossa sad, hereinafter referred to as the Spanish club) sign a contract of employment, said to July 30, 2010, three seasons were the Spanish club potency. Subsequently, the Spanish club will Matuzalem transfer to the Italian club Lazio (club SSLazio spa, the following referred to as the Italian club), and obtained the Italian club to pay the transfer fee 510 million pounds.
Disputes International FI-FA of Association (Federation) Chamber (hereinafter referred to as DRC) in November 2, 2007, the Ukraine Club (hereinafter referred to as Football), the internal dispute resolution chamber (Resolve), to the next, said the complaint, that players are unilateral termination of the contract is a breach of contract, the request to pay the transfer fee.
DRC after hearing the court: Matuzalem and the Spanish club FC Ukraine to pay 6800000 pounds transfer fee. Because both parties are not dissatisfied with the verdict, the dispute was appealed to CAS, CAS in May 19, 2009 ruling:
The DRC's decision is invalid, redefine Ukraine club should obtain a transfer fee of more than 1100 pounds. The parties to the CAS ruling, the Supreme Court of the Swiss Federal Supreme Court to dispute the decision to dismiss the decision, but also pointed out that 5 years of employment contract does not exist on the subject of employment of the system, the contract did not violate the rights of athletes Matuzalem.
July 14, 2010, the FIFA discipline committee to inform the players and the Spanish club, because it does not fulfill its CAS in May 19, 2009 to make a ruling on the basis of the provisions of the rules of the International Football Association discipline (2009 Edition) sixty-fourth, discipline and punishment procedures start. Specific resolutions are as follows: "if the penalty is not paid in the last period, the Ukraine club may require the FIFA to prohibit the participation of any of the activities related to the football game by the players, and to deduct 6 points from the Spanish club in the domestic league. Once the Ukraine Club submitted the request, the above penalty shall come into force immediately until the FIFA disciplinary committee makes further resolution. The relevant committee to ensure that the implementation of the penalty measures, until all the expenses paid for all."
In July 26, 2010, the Spanish club claimed to have encountered serious financial problems, on the verge of bankruptcy, unable to bear the punishment according to the provisions of the rules of the FIFA disciplinary punishment sixty-fourth.
In September 1, 2010, the club of the Western class was paid 500000 pounds for the club of Ukraine, and no additional payment was paid. Matuzalem and the club will be the Ministry of music in the Department of the Department of the FIFA Discipline Department will be fined at the Council on the decision to CAS.
In June 29, 2011, the arbitration court rejected the appeal after the trial, to maintain the original penalty decision. Subsequently, Ma plans to tie Lun on the verdict to the Supreme Court of the United States and the United States, the requirements of revocation.
The appellant believes that CAS's ruling in violation of the Swiss Federal International Private code, the second D 190th, the right to equality and the public order of the E. First, the athletes in the hearing process in the arbitration court, not to participate in the equality debate; second, due to the players did not pay the transfer fee, to prohibit their participation in the world wide the Constitution (Swiss Federal) second, the protection of personal freedom, and the second paragraph of the "insurance barriers by economic self", also in violation of the relevant international treaties and the Swiss civil code. Since this study focuses on the attitude of the Swiss Federal Supreme Court on the substantive public order, therefore, only the second reasons for the analysis of the appellant.
Swiss Federal Supreme Court recognized as: the first, contrary to the "public order" of the "real" behavior is a violation of the general legal principle, in Switzerland, recognized the legal value, the basic legal order. In this case, on the basis of "FIFA disciplinary rules" sixty-fourth athletes on the punishment results and "Swiss civil code" article twenty-seventh violation, which stipulates: "no person shall make its freedom, or damage the legal and moral [9]." FIFA prohibits the appellant to participate in football in the world within the scope of the decision in the limit the exercise of freedom violated their basic economic freedom, to comply with the original employer football players the benefit of the contract is clearly not guarantee freedom of occupation, FIFA did not pay the fee because athletes start ban belongs to too many restrictions on the athlete's rights, contrary to the "protection of basic economic freedom" of this entity of public order.
Second, the Swiss law protects the freedom of the people, such as freedom of movement, freedom of individual economy, freedom of choice, or the freedom to choose a job. On the basis of the Swiss civil code, arbitrary constraints or require individuals to give up economic freedom that seriously affect the birth, as economic self by the excessive restrictions on. Excessive restrictions on the economic freedom and protection of private rights of the public were rank ordered contrary. In this case, did not pay the transfer fee caused by Ban relates to the basic livelihood of athletes invading, guilty of needle of this kind of serious invasion movement member of the rights and interests of the punishment, the Swiss Federal Supreme Court need to review the sports association is the abuse of power, whether with athletes in unequal status and other factors.
Third, the appellant has clearly stated that it is unable to bear all the transfer fee, the amount of the amount of the transfer payment is controversial, and the possibility of the appellant to engage in a football related activities will be deprived of the possibility of obtaining an income and debt repayment from his or her good program. In addition, the appellant's residence in Italy, Spain have signed the New York convention, the decision of the party's commitment to the implementation of the provisions of the covenant.
The Swiss Federal Supreme Court ruling on CAS in May 19, 2009 has been made to judge, does not affect the case of the referee, which is due to the controversial focus of CAS's previous ruling is a five year contract obligations constitute an excessive restraint of the athletes, and the focus of controversy in June 29th is the focus of the dispute over whether the penalty is a violation of public order Zan. The two ruling disputes are essentially different, not applicable to the principle of the case. In the end, the Swiss Federal Supreme Court upheld the appeal of the appellant, and revoked the CAS's decision.
2.2 Mu Figure Case
In August 11, 2003, the Romania professional football player Adrian Mutu (Mutu Adrian) from the Parma Italy Club (AC Parma Italianclub) transfer to the England Chelsea Club (Foot-ball Club Chelsea), Chelsea club music club paid 22500000 Euro yuan, and signed with the athletes for 5 years of employment commission.
In October 1, 2004, the England Football Association (hereinafter referred to as the England Football Association) for the detection of the Mu picture doping, found its body in the presence of prohibited substances.
In October 28, 2004, Chelsea's club without the knowledge of the athletes in the case of unilateral termination of the contract. England's FA ban on the participation of the 7 months in the game, and later FIFA will be extended to all the world's football tournament.
In May 11, 2006, the Chelsea club to DRC claims that because of the breach of the contract is about the right to self made into a loss, to claim compensation for the transfer fee, DRC said no jurisdiction. The dispute is the appeal to CAS, the arbitral tribunal has no jurisdiction to withdraw DRC resolution, remanded for retrial DRC. Chelsea Club proof paid a fee of more than 200 million euros, the DRC final judge Adrian Mutu within 30 days of compensation for loss of Chelsea Football Club about 1 700 million euros. Mutu refused to accept this, again to the CAS appeal, the arbitral tribunal in July 31, 2009 to make a final ruling, dismissed the appeal, to maintain the DRC to make a 17000000 euros in compensation for the resolution. The the, the sport, said the decision had been made to take into account the special interests of the sport's special nature (the specificity of the) and the players, the club and the football industry.
In September 14, 2009, he told the Swiss Federal Supreme Court appeal request, asking for revocation of CAS in July 31, 2009 to make a ruling.
The appellant, on the basis of the second a of the Swiss Federal Code of international private law: the sole arbitrator of the appointed arbitrator or the composition of the arbitral tribunal, may apply for revocation of the arbitral award, in addition, according to the provisions of the above e, CAS ruling in violation of the substantive public order. Since this study only discusses the problem of public order, it is only for second reasons to do a detailed exposition.
The appellant's CAS award in violation of the public order of the protection of human dignity. First, he cited the institutingthe European Community the (Treaty) thirty-ninth, and Bilateral Agreement onthe Free Movement of Persons (Swiss-EU) fourth and a. Second, the appellant's ruling against the European Convention on human rights, the first fourth, 2 prohibition of slavery and forced labor provisions, sixth guarantees for the individual to accept the fair trial, eighth of the provisions of the family and private life. Third, the appellant's CAS liability to make the compensation for the respondent's behavior has been misunderstood the concept of "damage", because the respondent has not been lost. Fourth, the appellant accused the arbitrator ad-equate causality principle (of), the application of the rules of the International Football Association and the transfer rule is not appropriate. Fifth, the appeal said abuse of power and ruling on the respondent, distribution rules of burden of proof is not reasonable.
The Swiss Federal Supreme Court held that, first of all, the appellant mistakenly thought that the court may be free to review the CAS body (private) and other private entities (jurisdictional) to make the accuracy of international arbitral awards. In fact, the Swiss Federal Supreme Court only examines whether the decision is in conformity with the public order, when the dispute over the appeal violates the provisions of the Swiss general law or the law of the European Union. For example, the appeal of the CAS has not been determined in the Swiss law of the concept of damage, the cause of the failure to consider the full causal relationship, the burden of proof, etc.. Second, according to the previous case, the "Swiss civil code" twenty-seventh of the violation of the public order, in violation of the "public order" behavior must be clear and serious violations of the basic rights of behavior. Through the contract constraints on economic freedom, only in the following circumstances is regarded as violating public order, the two sides signed the contract is arbitrary and willful, or pressing on the other side of the basic economic freedom, such as the Swiss debt law, Article 20, paragraph 1, of the provisions: can't fulfill the, violation of law or public order and good customs clauses of contract is null and void. The contract concluded in this case does not constitute a serious violation of economic freedom. Moreover, the appellant only refers to the Swiss Federal Constitution, the European Commission for human rights, and other legal provisions, and did not enter a step to say that the provisions of the CAS's decision to violate the provisions of the above provisions, as well as the state of the individual's two guarantees to become a part of the public order of the right and the public order of the.
In addition, the appellant also proposed CAS ruling in violation of the code of the Swiss debt third 160th, third 163rd and 337th D paragraph, the Supreme Court of the Swiss Federal Supreme Court that the above terms can not be part of the public order, not for this case. Once again, the appellant made a decision to violate the principle of prohibition of abuse of power, the Supreme Court of the Swiss Federal Supreme Court held that the principle of prohibition of abuse of power is the part of the substantive public order. The second one: no one has to be honest, trust in the way of exercising their rights and fulfill their obligations. The appellant argued that the arbitral tribunal to violate the provisions of the burden of proof, especially the "Swiss civil code," the provisions of the provisions of the parties should prove that their claims can be deduced from the existence of the fact that the Swiss Federal Supreme Court held that the above terms do not constitute a part of the public order, and CAS is through the evidence and the calculation of the loss, there is no problem of the burden of proof. Finally, the Swiss Federal Supreme Court considered that CAS's ruling did not violate the "Swiss Federal International Private code," second of the public order of 190th e items identified, ruling dismissed the appeal request.
2.3 Raducan case
Romanian gymnasts is Andrea Raducan Andrew.Raducan, she in the 2000 Sydney Olympics women's gymnastics all-around game won gold medal. Following, according to Xing Fen agent detection rules, she provided for the three samples, total for 62ml. the urine sample was divided into a, B two samples, the Australian drug testing laboratories containing detectable 88~91 UG / ml pseudoephedrine components. According to January 1, 2000 Revision of the Olympic Anti Doping regulations and pseudoephedrine prohibited drug use, shall not exceed 10 g / ml.
In September 26, 2000, IOC announced: Hussein Raducan used the doping, the abolition of the women's all-around competition and gold card. Pull on the penalty decision not to suit the CAS application for arbitration. In the arbitration hearing, durakan proposed the doctor containing pseudoephedrine composition of cold tablets to doping violations. There is no fault, it shall cancel the punishment decision, the arbitration tribunal after make maintain the IOC resolution decision. Subsequently, Raducan will be CAS's decision to the Swiss Federal Supreme Court, requesting revocation of [1].
Raducan proposed CAS's ruling against the public order in Switzerland, it should be revoked. The reason is:
1) Anti Doping article 3.4 of the constitution of the provisions, the athletes are extracted from the urine amount shall not be less than 75ml, and in this case did not reach the number, will lead to detection results can not be trusted, a violation of the basic rights and interests of the athletes; 2) durakan think, the award of the CAS in violation of the good faith and fair treatment principle.
CAS in previously adjudicated Equestrian Federation cases clearly pointed out that due to the urine sample test tube not in accordance with the provisions of sequestration, tube cover is easy to open, does not exclude the sample by the possibility of other substances pollution should be presumption to the appellant favorable. In this case, CAS only cage system said Ming take sample program is no problem, constitute a precedent difference with treatment, in violation of the integrity and good public order.
The Swiss Federal Supreme Court found that: on the plea of the people, the lack of substantive evidence. First, urine total less than 75ml not to detect the resulting in substantial shadow ring, not constitutive of procedural rights violations; second, in the case of the basic situation and Equestrian Federation case different CAS based on athletes in prohibited substances superscalar and admitted to taking sense take pills that and make discretion of punishment must, no constitutive into two cases of treatment, when the parties are not equal. Therefore, CAS's ruling does not violate the public order, the Swiss Federal Supreme Court finally made the decision to dismiss the appeal of the referee.
2.4 summary
The above 3 cases are considered as the parties to the CAS arbitration award in violation of the substantive public order, the case of an appeal. The horse figure zallen cases and Mutu cases involving international football transfer dispute, suspensions and protect economic freedom between the balance. However, the verdict is very different, that is, in the case of Matuzalem, the Swiss Federal Supreme Court upheld the appeal of the appellant; in the case of the Swiss Federal Supreme Court rejected the appellant's request. Mutu cases and durakan cases are related to the athletes prohibited stimulants caused suspensions is contrary to public order problems, the Swiss Federal Supreme Court that prohibited stimulants belongs to the field of sports the most serious violations, for suspensions is respect for the sports special table now, and not to violate the Switzerland in the body of a total order, therefore, dismissed the appellant's request.
To explore the 3 cases of the decision not to be the same as the result of the decision of the outcome of the decision, the Lord should have a few:
1) 3 cases different from litigation and Matuzalem cases for failing to pay a transfer fee and start the ban is a violation of public order problems, Adrian Mutu cases against the compensation amount to determine whether reasonable, durakan cases against the party without the excitement of the major fault agent suspensions is appropriate. Different lawsuit point leads to a different verdict, Matuzalem case appeal to get support for the root causes of suspensions and athletes violations disproportionately, rather than for the ban itself is a violation of public order of.
2) the above 3 cases, athletes were suspended for different reasons. Matuzalem cases, due to athletes and the Spanish club fails to pay the transfer fee is suspended, Mutu cases and durakan cases, due to the athletes in the presence of prohibited substances, doping violation and was suspended. The particularity of the sports field towards the use of stimulants for "strict liability", the athletes in vivo are prohibited substances that constitute the doping violations, regardless of the subjective existence of fault and doping violations ban does not violate freedom of economic security public rank order. The researchers believe that the Supreme Court in the Swiss Federal Court in the case of the 3 full consideration of the actual situation in the case of a violation of the Swiss entity of public order of the factors for in-depth analysis, the final decision is appropriate, 3 typical cases of the Supreme Court of the Swiss Federal Court for the application of substantive public order attitude.
3 a review of the grounds of public order
The general theory of the international private law and the arbitration law admits that the recognition of the entity's public order should be cautious and strict, and it is a restrictive interpretation. In Matuzalem's case, the reason for violating public order can be refined:
Violation of specified in Article 1) punishment by the Ukrainian club started, probably due to the Ukrainian g LAN Club of do as one pleases the moving member is applied to a no match punishment; 2) a lifetime ban penalties for violation of the Swiss civil code "Article 27, paragraph 2; 3) penalties for violations of the athletes of the economic rights; 4) FIFA and its members do not benefit priority (no prevailing interest); 5) due to the New York Convention existed in the arbitral award recognition and enforcement of the terms of the punishment measures are not alternative. The Swiss Federal Supreme Court comprehensive consideration of the above reasons, the decision of CAS arbitration award would violate Swiss entity of public order, the party proposed the reasons are more fully. However, in the case of the Swiss Federal Supreme Court rejected the appellant's request, on the one hand, due to the appellant did not find a reasonable basis for the CAS's ruling in violation of the Swiss substantive public order; on the other hand, due to the appellant in the court proceedings, the relevant provisions of the simple terms, not in-depth description of these provisions constitute a public order of evidence, the case of a violation of public order. As a result, the Supreme Court of the Swiss Federal Supreme Court in the review of the appeal of the public order in the case of a strict procedure, which requires the appellant to clear the arbitral award in violation of the law, the case facts and ways, it is necessary to prove that the law is a part of the public order [16].
3.1 specific method
The appellant shall seek the support of the law of public order in violation of the substantive public order. Such as the case of Matuzalem, in violation of the principle of protection of economic freedom of law from the "Swiss civil code" second twenty-seventh. The specific provisions of the legal text is the premise of the substantive public order, the search for specific terms should meet the following conditions:
1) the parties should look at the basic legal system of Switzerland, such as the Swiss civil code, the Swiss code of law, the Swiss penal code, the Swiss Federal International Private code, etc..
2) the parties are to find the legal provisions of the Supreme Court of the Swiss Federal Supreme Court of substantive public order extension, in other words, not all of the provisions of the basic legal system can constitute a violation of public order, such as the case of the appellant, the appellant cited third 160th 163rd third 337th D paragraph, the court finds that the public order is not required.
3.2 specific precedents support
The appellant shall seek to find out the precedent support of the specific public order in violation of the substantive public order. In the case of Matuzalem, the Swiss Federal Supreme Court in February 2007, due to the prohibition of forced labor and public order appeal cases, which provides guidance for the trial of the case of Matuzalem, it can be known that the prohibition of forced labor and protection of economic freedom is subject to the Federal Supreme Court recognized the substantive public order. However, not all precedents can become a party to the appeal of the evidence, which mainly depends on the precedent and the current case of the district and the department. Such as Adrian Mutu case, V. refers to a Bosman case and Servette Football Club v. Perry case (the two ruling in the case: the club of different countries within the EU between players contract expires after the transfer, required to pay the transfer fee is in violation of EU law) are not suitable for the case and Swiss Federal Supreme Court also thinks, above two cases with Mu patterns are the essence of the difference. Another example durakan case, the appellant proposed has not been previously adjudicated and Equestrian Federation case equal treatment, and Swiss Federal Supreme Court think, Equestrian Federation, the case with pull Du Kan case has the difference, with different parties punishment does not constitute discrimination.
3.3 the burden of proof and proof
The appellant shall, in violation of the public order of the substantive public order, fully demonstrate whether the law or precedent constitutes a part of the Swiss public order, and explain how to violate the public order in the specific case. The appeal of public order is the Swiss Federal Supreme Court shall apply to start the retrial procedure, the retrial of the object is already in force in judgment or arbitral award, the court in performing the functions of judicial supervision very carefully. First, the Supreme Court of the Swiss Federal Supreme Court only to constitute a violation of public order in the course of the trial, the first violation of the law is not to review; second, the parties should bear the burden of proof, the burden of proof of public order contains the legal basis, precedent basis, facts and how to violate public order process. In the case of the case, the parties listed in the European Convention on human rights, the Swiss civil code, the Swiss code of law and other legal texts, but did not explain the facts of the case, the court dismissed the verdict. Thus, the parties should bear the burden of proof and proof of public order, otherwise it will bear the risk of losing.
3.4 identification of violation
The Supreme Court of the Supreme Court of the Swiss Federal Supreme Court has limited the way of violating the public order. One, which constitutes a violation of the public order of the appeal to reach a serious breach of the process, if only on the law of the law is a violation of the original, without the need to withdraw the award. Such as Matuzalem's case, if the CAS's decision to confirm the penalty measure is not completely deprived of the athletes in the world to engage in the freedom of football, that is not a serious violation of the principle of protection of economic freedom. Second, the public order is a direct result of the ruling, rather than the results of the decision. This is because, in violation of public order will lead to the entire ruling is revoked, the violation of the verdict without the need to withdraw the entire ruling.
4 public order and the consideration of the special nature of sports punishment
In the practice of international sports arbitration, the dispute over the appeal of the sports penalty is the case. From the CAS awards, according to the statistics of the library to see, cut to the end of 2012, there are over 40 sports in the project to raise the CAS to the arbitration application, which, football, cycling and swimming the most controversial. To football projects, for example, the total number of 146 cases, involving 143 of the appeal, the total number of 97.9% cases of bicycles and swimming, which, in which the number of cases of the sports organization and the majority of the two controversial, 1996-2008, the proportion of the total number of 30%~40%, 2002, the proportion is even up to 60%.
The sports arbitration program of CAS has gradually become the relief mechanism of the athletes' dissatisfaction with the discipline of the sports organization. However, there are many differences between the sports discipline punishment (including the doping decision) and the general commercial disputes. First, the sports discipline and punishment measures are special. Sports organization of violation as prescribed in the articles of association members can take warning, expulsion, suspension penalties, which suspended is to deprive freedom of athletes to participate in the events of the is field of sports the most stringent penalties. Second, the proportion of the relationship between the degree of violation of the athletes and the severity of the punishment should be considered in the discipline of physical discipline. In addition to the application of strict liability principle, the behavior of other violations should be considered in the bad degree, and then to make the punishment measures of the principle of proportionality. Its three, the body of the body of the textile and the movement of the inter - system of inter - relations. Sports organizations have a monopoly effect in a specific project, which has a decisive influence on the professional life of athletes, and athletes who accept the punishment are at a disadvantage position relative to the sports organization. Fourth, there are different value choice and balance of physical punishment behind. Sports punishment need to maintain the authority of the organization, the competition order, but also need to maintain the basic interests of the athletes, how to identify and measure the interests of different values between the judges and judges are facing problems. As a result, the CAS arbitration mechanism and the Swiss Federal Supreme Court should be aimed at the special nature of the discipline of sports discipline, the basic rights and interests of the athletes and the basic order of sports, sports and sports.
4.1 severe physical discipline punishment is not an alternative measure
In view of the success of the decision of the player Matuzalem also need to take the transfer fee, some scholars believe that the Swiss Federal Supreme Court is not to make a different from CAS or FIFA of the new penalties, it does not mean that athletes do not need to be punished or not to pay the dues. Horse figure tie Lun still owe the Ukrainian Club 1 100 million euros, Swiss Federal Supreme Court in favor of judgment will only be in athletes not in time make nano transfer fee, promoting than ban more slight punishment measures adopted by FIFA. As the arbitration tribunal of this case is located in Switzerland, Italy and Spain are the parties to the New York convention, the Ukraine club, according to the Convention.
As a result, the Supreme Court of the Swiss Federal Supreme Court in determining whether the sports arbitration award in violation of public order, the first consideration is the existence of alternative measures.
This way is more suitable for sports discipline and punishment cases, because of the special nature of the rules of the sports field, some of the punishment measures are found to violate the general legal principles, such as the protection of economic freedom, the principle of the protection of employee mobility and so on. According to the ruling, Swiss Federal Supreme Court from the ordinary social field has no alternative measures to proceed. On the one hand, to protect athletes as basic human dignity and freedom, on the other hand, to place undue restrictions on the athlete body and free of sports rules (such as a global ban rules) to be modified, by way of judicial supervision of sports autonomy restrictions.
4.2 proportion principle
The principle of proportionality Proportionality of the sanction), and that proper punishment principle (Adequacy of principle of balance ofinterests) the sanction or interest balance, Lun Ma tuzha case, the Swiss Federal High Court from the following several aspects prove FIFA punishment inappropriate:
1) parties Spanish club on the verge of bankruptcy, have been proposed cannot afford the high cost of transfer; 2) suspensions is not indispensable, because the Ukrainian club also by the New York Convention application of the enforcement of the arbitral award; 3) worldwide lifetime suspensions than the protection of athletes comply with the contract agreement is too harsh. As a result, the Swiss Federal Supreme Court held that the principle of proportionality should be revoked. By comparing with the Mutu case, the main reason is the two case be quite different for different reasons. Matuzalem case suspended for new players to the club fails to pay the transfer fee, Mu pattern of the ban on the grounds that athletes form doping violations. Suspended as a sports field is a special punishment measures, acute deprivation free to professional athletes, determine the proportion of the ban is a violation of public order is the key player of the violations and penalties. Do not pay transfer fees and doping violations, the degree of harm is not the same, the former is no ban should be taken serious penalties, while the latter to the World Anti Doping regulations "as the basis. From this, we can know that the proportion of the principle of proportionality, over strict penalties will lead to the violation of public order, and vice versa.
4.3 order and priority of the security value and the violation of interest
Matuzalem case, Swiss Federal High Court revoked CAS ruling does not mean that the athletes and the Ukrainian club signed the contract can not be observed, some will keep and the integrity of the implementation of the contract are part of the Swiss public order. The court has made a decision on the priority of the protection of economic freedom and the principle of covenant, and the relationship between the value of different order of law is the key to the right of the appeal of the public order.
In the field of physical education, the value of mutual contradiction and conflict, such as the contradiction between the athletes' privacy and the prohibition of the use of stimulants, and the contradiction between the long-term development of the football sports and the protection of the free flow of players, the contradiction between the enjoyment of the competition, and the contradiction between strict liability and penalty, etc.. When the Supreme Court of the Swiss Federal Supreme Court in the face of these contradictions, should be appropriate to consider the relationship between the basic interests of the athletes and the development of sports, to make the optimal choice.
4.4 the status of sports organizations and athletes is not equal
It should pay special attention to the special rights and obligations between sports organizations and athletes in the judgment of sports arbitration awards in violation of the Swiss public order. In the general civil and commercial judges, the parties are in the equal status, and the Supreme Court of the Swiss Federal Supreme Court is clear, but in the field of sports, most disputes occur between the strong sports organizations and the weak players. In view of this kind of special ruling review, should pay more attention to the protection of the interests of the weak players, such as the Matuzalem case, the court to the athletes inappropriate punishment measure to be revoked, safeguard the basic rights and interests, so that the Supreme Court of the Swiss Federal Supreme Court judicial supervision has become the last line of defense to protect athletes.
5 conclusions
When the Supreme Court of the Swiss Federal Supreme Court handles the case of sports arbitration in the case of an entity of public order, it is not the same as the principle that applies to commercial arbitration. First, in the case of development the basic principles of the entities of public order, and give it a special meaning in the field of sports, such as about will keep the principle in, "about" content also includes physical constitution and rules; second, consider the rationality of the specific cases in sports discipline measures, in accordance with the principle of "responsibility commensurate" be judged and doping ban does not constitute a violation of economic freedom principle of athletes; third, consider the disadvantaged status of sports organizations of monopoly and athletes, fully protect the athlete's basic rights and interests. Violation of substantive public order will continue to be one of the important reasons for the parties to appeal, the Supreme Court of the Swiss Federal Supreme Court in the future practice, should pay more attention to the special nature of Sports Arbitration (especially disputes involving sports discipline), the development of substantive public order in line with the characteristics of the sports field, improve the party's burden of proof, proof standards and other procedural issues, to protect the legitimate interests of the parties.
At present, China has not yet established a sports arbitration system, the Chinese court only in recognition and enforcement of foreign sports arbitral awards, involving judicial review issues.
On the basis of the New York Convention and its commercial reservation clause, the court only applies this Convention to the domestic law as a contractual or non contractual commercial relationship. Sports disputes, especially the transfer of athletes, contract employment and agency, the qualification of the competition, whether it belongs to commercial disputes? Can be applied to the New York convention?
The researchers believe that, according to the United Nations in 1985, the International Commercial Arbitration Model Law, the first notes of the first notes, "commercial" a word should be done in a broad sense. International sports arbitration in the event of the event, television broadcast rights, transfer of athletes, employment and agency contracts are commercial nature of the dispute, and the larger proportion of such disputes in international sports arbitration, [4]., China's court to treat foreign sports arbitration award is still applicable to the provisions of the New York convention, the provisions of the second fifth D of public policy, for the review of foreign sports arbitration award has guiding significance.
China's "Supreme People's Court on the application of the law of civil relations involving foreign civil law" Tenth provides that the social public order and the parties can not be determined by the use of the right to protect the rights and interests of the people. (two) the safety of food and public health; (four) involving foreign exchange control and other financial security; (five) involving the anti monopoly and anti dumping; (six) other circumstances should be identified as mandatory. From the above provisions, the sports arbitration may infringe the public order mainly in the first "workers' rights and interests protection" and sixth other cases. The researchers believe that such provisions may exist in the two aspects of the problem.
1) the court deals with the sports arbitration cases involving the employment of athletes, and may be applied to different principles, and there are no special provisions in the law. In practice, sports arbitration a larger number of disputes involving athletes of the employment relationship, athletes as a special working practitioners, is different with the ordinary workers, such as professional sports sports organizations have imposed ban, equivalent to disguised deprived athletes for specific projects the economy from general datsakorn dynamic industry competitive industry prohibition clause has a significant difference, equal treatment.
2) Article 6 Miscellaneous Provisions of regulations may lead to party dissatisfied with the ruling of the winding action, expand the scope of entities of public order, waste of judicial resources, at the same time, also break bad secondary cut cut cut final.
There is no doubt, our constitution education dispute gradually increased. In view of the particularity of this kind of disputes, the researchers suggest the relevant functional departments respond as soon as possible the constitution of the people's Republic of China Education Law "Article 33 of the rules, establish independent sports arbitration system, a better solution to the sports field to disciplinary punishment, stimulants, qualification and other special disputed. The people's court shall, when handling the relationship with the domestic sports arbitration award, shall comply with the following principles:
1. The people's court should be fully respected in the practice of major procedural errors or serious violation of the rules of the public order of justice, maintenance of the special nature of the sports industry, in particular, the balance of the physical and social relations, the scope of the public order of the infringement of the interests of our country, and the practice should be better. Disputes in the field of physical education.
Reference
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[2] Huang Shixi. The revocation of the international sports arbitration award and the defense of public order [J]. law review, 2013, (1): 55
[3] Li Linsheng. The principle of good faith and the abuse of power [EB/OL].
[4] Liu s.. International Sports Arbitration Research [M]. Beijing: Law Press, 2010:351.
[5] Lin yifei. Law and practice of the defense of Arbitral Awards [M]. Wuhan: Wuhan University press, 2008:246.