The Relationship Between Article 6 of the European Convention on Human Rights and International Commercial Arbitration

Summary

1. INTRODUCTION

Traditionally, the European Convention on Human Rights (ECHR) has been deemed inapplicable to voluntary arbitration, primarily due to the absence of any reference to arbitration in the preparatory drafts, or in Art. 6 ECHR. However, scholars note, correctly, that this apparent oversight was due to a historical context in which recourse to commercial arbitration was not so frequent or relevant. Moreover, the legal equivalence of arbitral awards to court judgments (now accepted in all legal systems) invalidates objections based on the difference between a ‘tribunal established by law’ and an ‘arbitral tribunal’ founded on an agreement between the parties. The ECHR has stressed that

the term tribunal in Article 6(1) need not be understood in the sense of a court of the classical type, integrated within the standard judicial apparatus of the country; it may therefore be a body established to determine a limited number of specific questions, provided that it offers the appropriate guarantees.

A static and traditional reading of Art. 6 is, then, at odds with the interpretation of the Convention adopted by the European Court of Human Rights (the Court or ECtHR), which characterises the Convention as a ‘living document’, in order to enable it to adapt flexibly to new social needs and requirements. Although this view is not without criticism, and may lead to subjective and arbitrary decisions, it appears justified with regard to the extension of Art. 6 to arbitration. Respect for the principles of due process, albeit with some functional differences, must also be guaranteed in such proceedings.

Deweer v. Belgium thus represents a decisive case in which the Court held that the Convention does not prevent parties from waiving their rights to court proceedings through an arbitration clause. And in Suovaniemi v. Finland, the Court clarified even more precisely that

there is no doubt that a voluntary waiver of court proceedings in favour of arbitration is in principle acceptable from the point of view of Art. 6 … Even so, such a waiver should not necessarily be regarded as a waiver of all rights under Art. 6 … An unequivocal waiver of Convention rights is valid only to the extent that such a waiver is ‘admissible’. It may be admissible for some rights but not for others.