Human Rights: A Speed Bump for Arbitral Procedures? An Exploration of Safeguards in the Acceleration of Justice
International Arbitration Law Review, Vol. 9, No. 1, p. 8, 2006
16 Pages Posted: 18 Apr 2006
Specific to our epoch is a general acceleration of time in society, a trend towards the "ever urgent", which is due among many other factors to the development of electronic means of communication. This general phenomenon is more precisely an acceleration of social time (i.e. the rhythm at which societal activities are carried out), which in turn triggers an acceleration of juridical time (i.e. the rhythm at which juridical activities must be carried out and are indeed carried out). This trend necessarily affects dispute resolution.
This article asks a simple question: are there limits to this acceleration? Are there boundaries to the creation of new, accelerated forms of dispute resolution? In the extreme, what would prevent the parties from accepting to submit the outcome of their dispute to a roll of the dice? Would this be acceptable?
I want to ask this question in relation with what we consider to be the epitome of law, i.e. the public legal system. Special consideration will be given to human rights. The question will be analyzed, within the broad spectrum of dispute resolution methods, through the lens of arbitration, for three reasons. First, arbitration is private in nature - therefore more flexible and more exposed to the movement of acceleration. Second, as arbitration is adjudicative, in contrast to negotiation and mediation, it is closest to the archetype of dispute resolution, i.e. litigation. Third, arbitral awards receive much higher recognition from the public legal order than other dispute resolution outcomes such as negotiated (or mediated) settlement terms. That is to say, awards are recognized as equivalents to judgments, whereas settlement agreements have in principle only the binding character of a contract.
To answer this question, I will begin with a description of some recent instances of acceleration of arbitration, i.e. fast-track arbitral procedures (I.). Then I will clarify the issues such fast-track procedures raise, by raising the question of the necessity of speed limits (II.). Thereafter, I will briefly examine the applicability of the European Convention on Human Rights to the challenge of arbitral awards, concluding that it indirectly guarantees procedural rights (III.), which may be enforced at the stage of an action to challenge the award (IV.). Subsequently, I will turn to the parties' procedural autonomy, i.e. the parties' right to organize the proceedings as they see fit. In this regard, my question will be whether the parties are given or not the right to opt out of the due process rights provided to them on the basis of the Convention and national provisions (V.). This will be followed by an examination of what the preceding implies for the arbitral procedures under scrutiny here (VI.). A final question will then be addressed: in a situation where recourse to arbitration is imposed by the factual circumstances - which, it would seem, weakens the true consent to arbitration - may an accelerated arbitral procedure restricting the parties' due process rights be admissible nonetheless? This issue will be examined on the basis of the traditional theory of the admissibility of human rights restrictions.
Keywords: Arbitration, human rights, online arbitration, sports arbitration, speed, online dispute resolution, dispute resolution, due process
JEL Classification: K2, K20, K4, K40
Suggested Citation: Suggested Citation