Pathological Agreement Meaning
14 décembre 2020
In this case, the Court considers that the text of the compromise clause clearly designated the predecessor of the Vilnius Commercial Arbitration Tribunal, namely the Court of Arbitration of the Lithuanian International Chamber of Commerce. As a result, the Supreme Court came into force the pathological clause that the Vilnius Commercial Arbitration Tribunal characterized as an institution of choice for the parties. 2.3.3 If the parties exclude the jurisdiction of the state in favour of an arbitral tribunal, as they did in this case, it is possible – contrary to what he said in the appeal – to find a solution that respects the fundamental intention of the parties to submit to arbitration (see BGE 130 III 66, 3.2 p. 71 and following). To this end, the treaty can not only be interpreted, but also completed (BGE130 III 66 to 3.1 p. 71; cf. WENGER/M-LLER, a.a.O., n. 53 and following to s. 178 PILA). Partly null and forth (Article 20 (2) OR) The compromise clause concluded on 1 February 2003 must, to the extent possible, be corrected by completing the contract on the basis of the hypothetical intent of the parties (see BGE 120 II 35 to 4a s. 40 ff; 114 II 159 to 2c 163; 107 II 216 to 3a and b. It is appropriate to inquire into what the parties would have agreed to if they had already been aware of the partial error at the time of the conclusion of the contract (see for the finding of the hypothetical intent of the BGE 107 II 216 to 3a p parties).
218; Stop 4C. 156/2006 from August 17, 2006, to 3.3; 4C.9/1998 of May 14, 1998, 4b). Without violating federal law, the CAS found that the parties wished to refer their case to an arbitration tribunal in Switzerland that would be particularly familiar with sports law. The designation of FIFA and UEFA suggests that the parties wanted a sports body to settle their possible disputes under the transfer contract, which would be familiar with transfers in international football. In particular, the CAS may review FIFA`s decisions regarding the transfer of players on appeal, and the complainant herself acknowledges that an appeal to the CAS against the FIFA committee`s decision on the status of the players would have been admitted if the committee had recognized jurisdiction in this case. On the basis of the above, it is likely that the parties would have submitted to the CAS any disputes arising from their transfer contract of 19 February 2003, which regularly deals with transfers of football players if they had known that the bodies covered by Article 4 were not competent. The applicant argues that the direct jurisdiction of the CAS would deprive it of part of its rights, since the possibility of appeals that it would have enjoyed under the relevant FIFA rules is not available. This objection is not persuasive. It is not persuasive, given that the alleged disadvantage stems directly from the incompetence of the FIFA committee. Moreover, the applicant challenges the jurisdiction of the CAS only in general, but does not show the extent to which the parties would have insisted on a dual degree of jurisdiction in this case.
The reference in the appeal procedure to two CAS decisions confirming FIFA`s refusal to accept jurisdiction is not persuasive, nor is it that in these cases FIFA`s jurisdiction has been decided and a direct claim to the CAS was not in question. As a result, the CAS did not violate federal law by finding that it had jurisdiction to rule on the dispute between the parties to the transfer of players A.________. There are different clauses for different types of dispute resolution, such as negotiation, mediation, expert research and arbitration.