Abstract
Abstract The recent judgment of the European Court of Human Rights (“ECtHR”) in Beg v. Italy has addressed the question of the applicability of the right to a fair trial, as defined in Article 6 of the European Convention on Human Rights (“echr”), to arbitral proceedings. The judgment has clarified that the scope of Article 6 echr extends to international commercial arbitration. However, a number of questions remain unanswered, especially about the relationship between arbitral tribunals and domestic courts, the significance of fair trial in voluntary proceedings, whether a State is responsible to monitor the respect of due process in arbitral proceedings conducted within its territory and to what extent. Moreover, the ECtHR failed, notwithstanding its foray into the field of arbitration, to clarify the meaning of “impartiality” and “independence” as requirements to sit in arbitral tribunals within the context of Article 6 echr. This article provides an analysis of the judgment in Beg v. Italy and highlights, in light of the questionable approach taken by the ECtHR in the case, the uncertainty that affects the scope of application of Article 6 echr with regard to arbitral proceedings.
Highlights
Impartiality and independence are core topics in the practice as well as the teaching of international commercial arbitration, both the case-law and the literature on this fundamental quality of arbitrators remain relatively scarce.[1]
The European Court of Human Rights (ECtHR) failed, notwithstanding its foray into the field of arbitration, to clarify the meaning of “impartiality” and “independence” as requirements to sit in arbitral tribunals within the context of Article 6 echr
Impartiality and independence are recognized to be two indispensable factors in maintaining the legitimacy and credibility of international commercial arbitrators,[6] and this is true notwithstanding the fact that international commercial arbitration is often – and largely correctly – described as a “private” dispute settlement mechanism.[7]
Summary
Impartiality and independence are core topics in the practice as well as the teaching of international commercial arbitration, both the case-law and the literature on this fundamental quality of arbitrators remain relatively scarce.[1]. Quite the contrary: lacking any more punctual definition (which, may we repeat ourselves, the ECtHR failed to provide), the reference to a flexible definition of impartiality and independence and the variety of provisions on impartiality and independence in the galaxy of institutional and domestic arbitrations rules lead to believe that, amongst the elements of fair trial that can be waived by the parties, the ECtHR considers the rules on disclosure of actual or potential conflicts of interest This argument may raise legitimate questions from a strict human rights perspective but is not that far-fetched, considering the peculiar nature of international commercial arbitrations.
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