Download This PaperArbitration Under the Fair Trial Safeguards of Art. 6 §1 ECHR
Forthcoming, in: Essays in Honour of Prof. C. Calavros
15 Pages Posted: 16 Apr 2020
Date Written: February 5, 2020
Abstract
There are two main questions on the relation between arbitration and art. 6 §1 of the European Convention on Human Rights (ECHR): First, is in principle the recourse to arbitration proceedings a deviation from the right of access to court, or even an infringement thereof? And second, is an arbitral tribunal bound by the fair trial principles or could it abstain, at least partially, from applying these norms?
Any answer to these questions would remain incomplete without a prior reflection on the issue of the State liability for infringements of rights caused by third parties, such as arbitral tribunals, and on the normative reasons for arbitral tribunals to be concerned about staying behind the line of ECHR violations. An arbitration may be connected to the jurisdiction of a Contracting State in an institutional manner at the legislative level of protection of the parties, or even where the State courts are involved in a judicial review of an arbitral award or in a process of recognition/enforcement of a foreign arbitral award. In this connection, even if, from the point of view of an arbitral tribunal, the ECHR norms do not strictly constitute an obligatory framework of the initiation and progress of arbitration proceedings, the tribunal might though take into account and apply the art. 6 §1 ECHR standards, in order to secure that its award will not be vulnerable to relevant public policy objections and that the parties’ request will be completely fulfilled with the adoption of an award respectable and enforceable within the jurisdiction of the Contracting States.
An arbitral tribunal cannot be regarded as established by law in cases of voluntary arbitration. According to the prevailing view on the issue, to bring voluntarily a dispute before an arbitral tribunal equates to a waiver of the right to have access to a tribunal established by law. However, there is no reason to consider arbitration as a renunciation of the main safeguards accompanying the State adjudication, that is independence and impartiality. Although the indistinctive wording of art. 6 §1 ECHR might lead to misconceptions, a renunciation of the access to a tribunal established by law does not mean that the parties waive, too, their rights to impartial judgments and/or release a responsive State from its duty to secure a proper way of adjudication, even if the adjudicative body is a non-State tribunal. At least five possible answers might be given to the question whether, or on what conditions, or to what extent, a recourse to arbitration as such amounts to a release of the arbitral tribunal in charge from the fair trial safeguards. The case-law of the Convention bodies on this issue has been far from unreserved. One reason for further obscurity is the fact that some aspects of the relevant norms are not constructed straight at a general level of determination but, rather, in connection to special circumstances of each case. The more recent case law developments have been marked by a thoughtful trend towards closer scrutiny of arbitration proceedings and their review by State courts. However, the Court has specified no part of the fair trial aggregate of rights that cannot be waived by the parties. Hence, all the relevant guarantees are mandatory insofar as ad hoc they have not been deactivated by the bearers of the rights. Within this view, the fair trial guarantees are wholly included in the European public policy at the normative level. Their mirroring in the public policy premises to be applied by the State courts, in judicial review or recognition/enforcement cases concerning arbitral awards, appears to be the only way for the Contracting States to meet their relevant obligations and secure fundamental aspects of the rule of law.
Keywords: European Convention on Human Rights, ECHR, arbitration, arbitral tribunals, fair trial, access to court, rule of law, waiver of rights, compulsory arbitration, voluntary arbitration, recognition of arbitral awards, enforcement of arbitral awards
Suggested Citation: Suggested Citation