Three Views of a Secret: Missed Opportunities in the echr’s Recent Case-Law on International Commercial Arbitration

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 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.