Arbitration and Human Rights

At a time of a lively debate on the necessity of setting-aside proceedings in contemporary framework of international commercial arbitration, this book provides a novel contribution to that debate from a somewhat unusual perspective—that of arbitrating parties’ procedural human rights and States’ obligations under the European Convention on Human Rights (ECHR). Recently, more and more States have loosened their national arbitration laws and minimized judicial scrutiny over arbitration proceedings by allowing arbitrating parties to voluntary exclude setting-aside proceedings. Some have gone as far to statutorily exclude the annulment mechanism altogether. While seemingly enhancing arbitral efficiency, such approaches to excluding the annulment of arbitral awards equally raise concerns as to their compatibility with arbitrating parties’ most fundamental human rights, such as the right to a fair hearing and the right to an independent and impartial tribunal. By creatively synthesizing two seemingly disparate fields of law—arbitration and human rights, in particular under the ECHR, the present work seeks to identify the most balanced legislative approach from the standpoint of compatibility with the ECHR to excluding setting-aside proceedings under national arbitration law.

The present chapter provides a succinct overview of the European Convention on Human Rights (ECHR), its enforcement machinery, general rules of applicability and its underlying principles of interpretation—all geared towards better understanding the relationship between arbitration and the ECHR, while often trying to connect the said issues with the more specific point of focus of this book, i.e. exclusion of setting-aside proceedings. While not intended as a comprehensive overview of the ECHR, it nevertheless introduces the reader to the most basic elements of the ECHR.

This chapter introduces the main theme of the present book—arbitration and the European Convention on Human Rights (ECHR). It provides comprehensive and up-to-date analysis of the interplay between arbitration and the ECHR, in particular by introducing the different approaches of applicability of the ECHR to arbitration and examining the existing case law of the European Court of Human Rights regarding the relationship between arbitration and human rights norms enshrined in the ECHR, in particular the right to a fair trial under Article 6(1) of the ECHR. It is intended as an all-encompassing examination of the practice and attitude of the European Court of Human Rights vis-à-vis arbitration, geared towards the more specific subject focus of this book, namely setting-aside proceedings, in particular, exclusion agreements and the phenomenon of total lack of setting-aside proceedings in national arbitration law.

This chapter introduces the more specific subject focus of this book, i.e. the annulment mechanism—its genesis, theoretical underpinnings and various procedural issues, such as jurisdiction, time-limits etc. This brief overview’s emphasis is put on the actual grounds on which an arbitral award may be annulled at the seat of arbitration. This is done by succinctly looking at each annulment ground provided in the 1985 United Nations Commission on International Trade Law Model Law on International Commercial Arbitration—an instrument that depicts a general consensus in this regard

This chapter is dedicated to the issue of exclusion agreements. It looks at various approaches that States have adopted when introducing a possibility to exclude the application of setting-aside proceedings in their national arbitration laws. For this purpose, a comparative analysis is carried out of the different legislative approaches of the most common European Convention on Human Rights Member States permitting voluntary exclusion of setting-aside proceedings. These States include Switzerland, France, Sweden and Belgium. The present chapter also includes a brief overview of other States’ approaches to regulating the exclusion of setting-aside proceedings, both those States that adopt a more liberal approach, as well as those that look at the exclusion of setting-aside proceedings more restrictively or take an intermediate approach in that regard.

This chapter summarizes the main findings of this book. It builds upon the analysis carried out in previous chapters and not only explains reasons for this book’s dual focus on both voluntary exclusion of the annulment mechanism and total lack of such a mechanism in the national arbitration law, but also identifies, as well as constructs the most balanced legislative approach from the standpoint of compatibility with the ECHR to excluding setting-aside proceedings under national arbitration law.