Human Rights as a Litigation Tool in International Arbitration

At times in which the United Nations, the European Union and the International Bar Association are focusing on the relationship between business and human rights and courts are willing to assert jurisdiction over damage claims brought against multinational corporations by victims of alleged human rights violations, the old wisdom that international arbitration and human rights were two separate and unrelated dimensions of legal discourse and practice seems no longer tenable. Indeed, it is more and more clear that business relationships and related dispute resolution mechanisms may have, whether directly or indirectly, human rights implications. It is also more and more evident that breaches of human rights can be committed not only by Governments but also by State judiciaries and legislatures as well as by private parties such as those normally resorting to arbitration. Most remarkably, there is growing consensus that the law of human rights, whether stemming from international treaties, domestic Constitutions, contractual undertakings or self-regulation instruments, can impact on arbitration agreements, arbitral proceedings and awards. And, in fact, arbitration may even become a preferred tool for the adjudication of human rights related disputes. This is confirmed by the Rome 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and by the ample case law that the European Commission and the European Court of Human Rights have developed on arbitration. This case law unequivocally shows that the Convention can be the source at once of rights and obligations for companies and other entities when carrying out business activities and settling the ensuing disputes, just as it can influence the behavior of the courts of contracting States involved in arbitral matters and the content of the contracting States’ arbitration law. In particular, the fundamental rights to “access to justice” and to a “fair trial” enshrined in art. 6.1 of the Convention can play a role in the assessment of the validity of a variety of rules, covenants or measures, or in the solution of a multitude of “complex issues”, which may crop up in the practice of international arbitration. These include issues relating to mandatory arbitrations, arbitration agreements entered into by “weak parties”, advance waivers to the remedies available for setting aside the award, dismissals of counsel for safeguarding the integrity of the proceedings, decisions of arbitral institutions in connection with challenges of arbitrators or approval of awards, mechanisms for the constitution of arbitral tribunals in the context of multi-party arbitrations, procedural orders setting deadlines or deciding on the admission of evidence, the lack of reasoning in decisions of arbitral institutions or arbitral tribunals, the granting by arbitral tribunals of interim measures ex parte, situations arising from the inability of an impecunious party to fund the arbitral proceedings or to comply with security-for-costs orders, anti-suit injunctions. Furthermore, art. 1 of Protocol 1 to the Convention which protects the right of property can be invoked to secure the economic benefits of an award, as a reaction to a contracting State failing to cooperate in its speedy and effective enforcement. More in general, awards issued at the end of proceedings where the right of fair trial has been thwarted or which are on their merits at odds with any of the human rights proclaimed by the Convention may be held to conflict with the contracting States’ public policy. In that case, the failure by any competent court of a contracting State to annul them or to refuse their recognition/enforcement could be challenged by any interested party before the European Court. Human rights implications are even more important for arbitrations or arbitrationrelated court proceedings taking place within contracting States which happen to be also member States of the European Union (as is the case for many important “places of arbitration”), given the important role that the EU treaties grant to the Convention as a source of rules of “higher law” and the forthcoming formal adherence of the EU to the Convention system. Then, arbitral tribunals, arbitration institutions, State courts acting as juges d’appui or requested to control or enforce arbitration agreements or awards, as well as parties involved in arbitral proceedings, are all well advised to carefully consider the human rights dimensions of international arbitration when taking decisions, defining litigation strategies, negotiating arbitration agreements. This becomes even more compelling if the arbitration is in any way related to a contracting State of the Convention, be it so because of its seat, the applicable law, the courts involved in the enforcement of the arbitration agreement or of the award.