Abstract
AbstractAlthough fair trial guarantees have always been recognised as constituting an integral aspect of international arbitral proceedings, this has largely been viewed through the lens of civil procedure rather than as a matter of public law and human rights. This state of affairs has further been compounded by the confidential nature of arbitration and the relative scarcity of set aside (annulment) proceedings before the courts of the seat of arbitration on the grounds of unequal treatment, and before human rights bodies such as the European Court of Human Rights. Moreover, it has always been difficult to reconcile contractual freedom and the advantages offered by arbitration with equal treatment and fair trial claims. This article demonstrates the existence of a set of general principles concerning the meaning and content of equal treatment, which are consistent with its commercial (and civil procedure) and human rights dimensions. The basis of this conclusion is Article 18 of the UNCITRAL Model Law on International Commercial Arbitration, as consistently interpreted and adapted by local laws and judgments, arbitral statutes and determinations by the European Court of Human Rights.
Highlights
The identification of important linkages between trade, commerce and investment and human rights is relatively recent
Abstract fair trial guarantees have always been recognised as constituting an integral aspect of international arbitral proceedings, this has largely been viewed through the lens of civil procedure rather than as a matter of public law and human rights
Major commercial arbitration instruments give a prominent place to fair trial rights, as is the case with Article 18 of the UN Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration,[2] which reads that: The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.[3]
Summary
The identification of important linkages between trade, commerce and investment and human rights is relatively recent. On the basis of the above considerations, the concept of equality in Article 18 of the Model Law does not have the same underpinnings as its counterpart in general human rights law, it does clearly encompass the notions of non-discrimination and arbitrariness This is because Article 6 of the European Convention on Human Rights (ECHR) concerns the right to a fair trial in criminal proceedings—as will be seen, it covers civil and commercial proceedings.[12] As a result, while the entire range of fair trial guarantees in domestic and international law apply (or should apply) to arbitral proceedings, the permissive nature of arbitration allows for some degree of exceptionalism. This article does not take into account equal treatment developments in the context of investment arbitration, the principles applied there are quintessentially the same as those considered in this article
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