Determinarea competenței arbitrale în contextul respectării drepturilor omului

Abstract

The arbitration agreement constitutes the main element of private arbitration. Arbitration Convention creates essentially a double effect, a main direct negative (one to evade certain disputes under the jurisdiction of state power) and a positive one, complementary (to give judges the power to decide the dispute in question). The main effect called negative effect of the arbitration agreement (arbitration compromise clause), is to remove, to dispute subject to its jurisdiction courts that would have had in the absence of the arbitration clause jurisdiction to resolve the dispute between the parties. Once removed jurisdiction of the courts, the dispute shall be resolved by the arbitral tribunal constituted in accordance with the arbitration agreement. The arbitration agreement grants the arbitral tribunal with the power to judge a dispute, checking by its own court jurisdiction on that issue. Literature called the verification principle Kompetenz-Kompetenz. Kompetenz-Kompetenz principle empowers the arbitral court to decide on its own jurisdiction. For arbitration agreement to be effective, it must result from genuine consent of the parties, also to correspond to legal national rules. In examining objectives’ arbitrability of international disputes, a court must apply its own conception of international public policy. Article 6 of the European Convention on Human Rights is applied in the same way both for litigation through the courts as well as arbitration. As a result, the European Court of Human Rights determined that the requirements of Article 6 must be applied by arbitral tribunals.