Procedural Guarantees of Human Rights in Arbitration Proceedings A Still Unsettled Problem?

Abstract

A presistent question exists about whether human rights guarantees should be applied to voluntary arbitration. Opponents give no dogmatic grounds for non-applicability of Article 6(1) of the European Convention on Human Rights ("ECHR") to voluntary arbitration. Moreover, recent developments in case law in various jurisdictions demonstrate a clear departure from the so-called waiver theory. The conclusion of an arbitration agreement does not signify a waiver from the procedural guarantees enshrined in Article 6(1) of ECHR. The direct appplicability of Convention's provisions in arbitration proceedings does not harm the arbitral process, however. On the contrary, it appears to be useful, because it removes the respect for procedural guarantees from the phase of control over the arbitral award to the very stage of conducting the arbitration proceedings.