- within Litigation and Mediation & Arbitration topic(s)
- in South America
- in South America
- within Consumer Protection, Insolvency/Bankruptcy/Re-Structuring and Insurance topic(s)
In a previous blogpost (6 February 2025), we reported on the request for a preliminary ruling referred to the European Court of Justice by the Belgian Supreme Court in Seraing v FIFA and others (Case C-600/23), and the opinion of Advocate General Capeta.
According to the Advocate General, the principle of effective judicial protection means that awards stemming from mandatory arbitration proceedings, such as the awards made by the Court of Arbitration for Sport (CAS), must be open to review by an EU member state court against all rules of EU law. Any national law limiting such review breaches this principle and must therefore be disapplied.
On August 1, 2025, the Grand Chamber of the Court of Justice of the European Union (CJEU) decided that EU Member State court must be able to review the conformity of sports arbitration awards with EU public policy.
The CJEU agreed with the Advocate General, drawing a distinction between mandatory and voluntary arbitration. It found that in the case of voluntary (i.e. commercial) arbitration, for example arbitration agreed to in a contract between two commercial parties, the parties are free to waive certain rights laid down by the ECHR. As a result, the judicial review of such awards can be limited.
The CJEU went on to find that, while sports associations can impose recourse to arbitration, it must be possible for the parties to subject the resultant arbitral award to a review by an EU Member State court as to whether the award is consistent with EU public policy. In this respect, the CJEU took a narrower view than the Advocate General, who had suggested review ought to be possible against all EU laws, not just matters of EU public policy.
The CAS awards being considered were seated in Switzerland, and therefore subject to the supervision of the Swiss courts. The CJEU found that the parties to the award should have had the opportunity to seek effective review of the award by an EU Member State court to determine its conformity with EU public policy.
Following this, the CJEU ruled that national laws granting the CAS awards res judicata effect vis à vis the parties and probative value vis à vis third parties without having first been subject to a review by an EU Member State court as to the conformity of the award with EU public policy should be disapplied.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
