Aplicarea articolului 6 CEDO în procedura arbitrală

Abstract

Choosing arbitration as a way of resolving legal disputes, it involves the guarantee of principle regarding contractual freedom. This principle is also established in ECtHR’s jurisprudence. In this situation the question is whether the court can impose or sanction an arbitration decision that violates the ECtHR rules. Under the ECtHR’s jurisprudence, it is not necessarily an arbitration decision to be canceled because it did not correspond to all the guarantees of Article 6. Each contracting State, in principle, can decide the reasons an arbitration decision should be annulled or not. An arbitration agreement, reached between the parties, restricts voluntarily the right to access to courts and dispute settlement in accordance with their rules of procedure. Thus, the parties to an arbitration agreement must be "fully aware" of giving up this fundamental right and once validly waived this right, they cannot plead infringement of it. European Convention on Human Rights is binding on judges only indirectly, only the proceedings of the court in connection with the arbitration proceedings are subject to the European Court of Human Rights, but not the arbitration procedure itself. So, ECtHR in Article 6 (1) of the Convention is not directly imposed to arbitration courts, but obliges courts of contracting states to establish appeal against arbitral order to verify the correctness of the arbitration proceedings and to quash decisions that disregard the fundamental procedural guarantees laid down in the European Convention on Human Rights.