Ensuring the Right of Access to Court during the Consideration of the Case by International Commercial Arbitration

Abstract

Apparently, one of the arguments against the application of the ECHR to arbitration is that neither the preparatory materials of the Convention nor the text of the ECHR itself contain a direct reference to arbitration. At the same time, according to one of the principles of interpretation of the Convention, which is stated by the ECtHR in the judgment in Tyrer v. United Kingdom: «The Convention is a living instrument that must be interpreted in the light of modern conditions». Various arbitration-related decisions of the Convention’s review bodies indicate that, as regards the application of the Convention to arbitration, it has also been interpreted as having direct relevance to it. The ECtHR takes into account the changing rules of national and international law and generally provides a broad and autonomous interpretation of the ECHR. This also applies to the Court’s interpretation of the most obvious provision of the ECHR that may be relevant to arbitration, namely Article 6 (1) of the ECHR. This article examines the issue of theoretical and practical interaction between the right of access to court and international commercial arbitration. Examples of decisions of the European Court of Human Rights on the possibility of exercising the right of access to court during the consideration of foreign economic disputes by arbitrators are given. It is argued that national arbitration laws more or less invariably establish procedural rights similar to those provided for in Article 6 (1) of the ECHR. However, it cannot be ruled out that national arbitration laws violate the Convention in some cases. Even assuming that the laws of arbitration in all countries comply with Article 6 (1) of the ECHR, the fact that this provision imposes certain obligations on states in relation to arbitration by virtue of the fact that the Convention can be considered a quasi-constitutional norm.