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About this book

This book presents a creative synthesis of two ostensibly disparate fields of law – arbitration and human rights. More specifically, it focuses on various legislative approaches to excluding the annulment of arbitral awards (setting-aside proceedings) at the seat of arbitration and evaluates the compatibility of such approaches with the European Convention on Human Rights (ECHR), in particular the right to a fair trial under Article 6(1).

The book first assesses the applicability and impact of the ECHR, in particular Article 6(1), on international commercial arbitration. It then analyses a number of legislative approaches to excluding setting-aside proceedings, focusing on two synergetic phenomena – exclusion agreements and the total lack of setting-aside proceedings in national arbitration law. Lastly, the book investigates to what extent the lack of setting-aside proceedings in national arbitration law may lead to a violation of arbitrating parties’ right to a fair trial under Article 6(1), and puts forward certain de lege ferenda recommendations on how to best approach the regulation of setting-aside proceedings in national arbitration law from the standpoint of compliance with the ECHR.

Table of Contents

Frontmatter

Chapter 1. Introduction

Abstract
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.
Toms Krūmiņš

Chapter 2. The ECHR: In Brief Perspective

Abstract
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.
Toms Krūmiņš

Chapter 3. Arbitration and the ECHR

Abstract
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.
Toms Krūmiņš

Chapter 4. Setting-Aside Proceedings—Overview, Genesis and Grounds for Annulment

Abstract
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
Toms Krūmiņš

Chapter 5. Approaches to Excluding the Annulment of Arbitral Awards—Exclusion Agreements

Abstract
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.
Toms Krūmiņš

Chapter 6. Approaches to Excluding the Annulment of Arbitral Awards—Total Exclusion

Abstract
This chapter looks at the phenomenon of total lack of setting-aside proceedings in national arbitration law. This is not only the case of Latvia—the author’s home country, but also other States—both formerly (e.g. Belgium, Malaysia) and presently (e.g. Kyrgyzstan). The focus, however, is on the case of Latvia, as currently the only Member State of the Council of Europe that omits statutory regulation of the annulment mechanism. The section on Latvia will provide a brief historical overview of the legislative development of arbitration in Latvia in general, and a more in concreto look at the issue of setting-aside proceedings in Latvian arbitration law, both from a historical and a contemporary perspective, with a view to understand the underlying reasons why the Latvian legislator has decided not to statutorily regulate the annulment mechanism.
Toms Krūmiņš

Chapter 7. Approaches to Excluding the Annulment of Arbitral Awards and Their Compatibility with the ECHR

Abstract
This chapter critically reflects on the contemporary relationship between arbitration, in particular setting-aside proceedings, and the European Convention on Human Rights (ECHR), and aims to determine the extent to which ECHR Member States are free to regulate setting-aside proceedings in their national arbitration law and still be considered as complying with their obligations under the ECHR, in particular the right to a fair trial under Article 6(1) of the ECHR. It moreover provides de lege ferenda recommendations as to the most appropriate, ECHR-compatible approach to regulating setting-aside proceedings in national arbitration law.
Toms Krūmiņš

Chapter 8. Conclusion

Abstract
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.
Toms Krūmiņš
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