The Applicability of the European Convention on Human Rights (ECHR) in International

Commercial Arbitration (ICA).

The key point in the relation between these two independent and substantially different areas is
Art. 6(1) ECHR which covers the procedural rights and the right to a fair trial. This relation
could be analyzed from the point of view of several aspects: (1) The role of Public International
Law in ICA; (2) the admissibility of arbitration from the point of view of the ECHR and the
difference between the compulsory and voluntary arbitration; (3) direct and indirect application
of Art. 6(1) in arbitration.
First aspect: Human rights, international trade and investment policy are interrelated. The
question is not whether international public law applies to ICA but rather to what extent it
applies. Therefore, it is necessary to separately examine: (1) the procedural law applicable to
the arbitration (Kersa Holding Company Luxembourg v. Infracourtage, Famajuk. Investment);
(2) the applicable law as chosen by the parties (Pyramids Case, Aminoil Case); (3) the
applicable law determined by arbitrators.
Second aspect: The Court1 establishes a clear distinction between voluntary and statutory
arbitration. In the latter, the applicability of Art. 6 is mandatory (Bramelid & Malmstrm case).
Problems arise in practice with regard to alleged defects in voluntary arbitration proceedings as
the parties have waived their rights under Article 6 (X v. Germany; Deweer case; Nordstrm-
Janzon case; Suovaniemi a.o. - Finland; Tabbane v. Switzerland).
Third aspect: There are three groups of arguments against the direct application: (1) the waiver
of rights of the parties; (2) the arbitrators is not a tribunal established by law in the sense of Art.
6(1); (3) the ECHR is binding only for states. In regard to indirect application, the question
arises as to whether the ECHR obliges the Contracting States to issue rules to ensure that
arbitrators comply with the guarantees contained in Art. 6(1).

1
The European Court of Human Rights