Do Procedural Human Rights Requirements Apply to Arbitration - a Study of Article 6 (1) of the European Convention on Human Rights and its Bearing upon Arbitration

Abstract: Arbitration is generally viewed as a form of dispute resolution more or less removed from the control of states. Such a view is based on the notion that this form of dispute resolution rests upon an agreement between parties. Without questioning the notion of arbitration as resting upon an arbitration agreement, it can be argued that there also is significant state involvement. Such involvement includes, but is not limited to, the fact that arbitration agreements in most legal systems are treated as bars to initiate judicial proceedings and as well as the fact that most legal systems provide mechanisms through which arbitral awards can be enforced. The question thus arises as to whether the existence of state involvement in arbitration means that arbitral proceedings shall be subject to procedural human rights requirements. The question examined in this thesis is whether the procedural requirements set forth in Article 6 (1) of the European Convention on Human Rights apply to arbitration. In the thesis it is concluded that Article 6 (1) prima facie applies to arbitration. The term prima facie is used as the waiver doctrine developed by the European Court and Commission of Human Rights also applies. When determining the validity of waivers, a distinction is made between before and after-the-fact waivers. A general requirement for all waivers is, however, that they should be done ''without constraint''. Waivers made beforehand are permitted with regard to the right to a public and oral hearing. However, such waivers are most likely not permitted in most cases with regard to certain other rights set forth in Article 6 (1), such as the right to an independent and impartial tribunal as well as the right to ''equality of arms'' and to be heard. The picture is different with regard to after-the-fact waivers: all rights in Article 6 (1) may in principle be waived after the fact. Furthermore, it is concluded that arbitrators are not under a direct obligation to ensure that arbitral proceedings comply with Article 6 (1). The conduct of arbitrators is neither directly attributable to states, nor is there any reason to believe that arbitrators, as a result of ''Drittwirkung'' being assigned Article 6 (1), can be held directly responsible for Article 6 (1) violations. Instead, states are under an obligation to put in place mechanisms through which Article 6 (1) rights can be given effect. This means that arbitrators indirectly are bound to ensure that Article 6 (1) rights are respected in arbitral proceedings, at least if they wish their award to stand the scrutiny of settingaside and/or enforcement proceedings. Finally, it is concluded that a person who is of the opinion that a state has not put in place remedies through which Article 6 (1) rights can be given effect in principle has two options. Firstly, the person in question can argue this point before national courts. How the national courts will view such an argument is in part dependant on whether the courts are entitled to reinterpret or strike down national legislation which violates Article 6 (1). Secondly, if the first option is unsuccessful and all domestic remedies have been exhausted, the person could complain to the European Court in Strasbourg. However, even provided that such a complaint is successful, the person in question could only receive just satisfaction. Another consequence may also be that the state which has been found in violation of Article 6 (1) changes its legislation to bring it in line with that provision.