X. v. Club Y. [Late Payment of an Advance on Costs to the CAS] No. 4A_600/2008 - Swiss International Arbitration Law Reports (SIALR) - 2009 Vol. 3 Nos. 1 & 2

Page Count:

24 pages

Media Description:

1 PDF Download

Published:

December, 2009

Practice Areas:

PDF274.82 KB

$40.00

Description:

Preview Page

Headnote

■ A decision by an arbitral institution declaring a request for

arbitration inadmissible and closing the proceedings on the basis

that the advance on costs was not paid in a timely manner, is capable

of being challenged in setting aside proceedings before the Federal

Supreme Court (confirmation of a previous decision).

■ A procedural order capable of being modified or withdrawn in the

course of an arbitration cannot be challenged before the Federal

Supreme Court (obiter).

■ Formalism is said to be excessive wherever a strict application of

the rules of procedure is not warranted by any legally protected

interest, it becomes an end in itself and inappropriately stands in the

way of the application and implementation of substantive law or it

hampers access to courts in a manner which the law will not

countenance.

■ It is not unduly formalistic to rule that an application to set aside

is inadmissible due to the petitioner’s failure to pay the required

advance on costs in a timely manner, provided that proper notice

was given of (i) the amount to be paid, (ii) the time limit to be

complied with and (iii) the consequences following from a failure to

comply with such time limit (confirmation of previous decisions).

Summary of the Decision

Football club Y. (“Club Y.”) sued its former coach seeking payment of

a contractual penalty for early termination of the employment contract;

the former coach contended that he had already paid the amount sought.

The FIFA Players’ Status Committee made a decision for Club Y.

X. appealed before the Court of Arbitration for Sport (CAS). The

CAS Court Office informed the parties that they would be asked to pay

an advance on costs. X. paid his share but not Club Y. The CAS Court

Office therefore asked X. to pay a complementary advance on costs in

order to avoid that his appeal be deemed withdrawn under article R64.2

of the Code of Sports-related Arbitration (“the Code”). X. did not pay

within the time limit. On 12 November 2008 the CAS Court Office