Fair Trial and Arbitration Under the ECHR

The notion of a “fair trial” is a fundamental principle in both public international law and domestic legal systems. Instruments like the European Convention on Human Rights (“ECHR”) guarantee this right by requiring that individuals have access to an independent and impartial tribunal, a meaningful opportunity to present their case, and a reasoned decision within a reasonable timeframe. Although arbitration rarely uses the term “fair trial” explicitly – being primarily guided by party autonomy and procedural rules set by arbitral institutions – the core elements of the fair trial standard are reflected in what are typically known as “due process guarantees”.

In arbitration, due process encompasses key principles, including the right to be heard, equality of arms, impartiality and independence of the tribunal, adequate notice, and the opportunity to respond to the other party’s case. These principles are found across arbitral rules (e.g., the ICC Rules, the ICSID Rules, the UNCITRAL Rules)[1] and are essential to the legitimacy and enforceability of arbitral awards. Courts reviewing or enforcing awards often scrutinise compliance with these guarantees, particularly under frameworks like the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”), where violations of due process may lead to the setting aside or non-recognition of awards.[2]

As arbitration becomes a more prevalent mechanism for resolving disputes, especially in areas traditionally reserved for state courts, the overlap between arbitral procedures and fundamental fair trial rights has become increasingly important. This convergence has prompted closer examination by courts and human rights bodies, most notably the European Court of Human Rights (“ECtHR” or the “Court”), which must navigate the balance between respecting party autonomy in arbitration and upholding the non-derogable standards of fairness guaranteed by Article 6 of the ECHR.

Fair Trial from Article 6 of the ECHR and Arbitration: An Evolving Interpretation

The intersection of human rights and international arbitration, once considered distinct legal realms, is becoming increasingly intertwined. At the heart of this evolving relationship lies Article 6 of the ECHR, which guarantees the right to a fair trial. This has sparked a crucial debate: how does the ECtHR reconcile the principle of party autonomy, a cornerstone of arbitration, with the fundamental need for accountability in upholding fair trial guarantees under Article 6?

Historically, it was argued that human rights norms – including Article 6 of the ECHR – should not apply directly to so-called “voluntary” arbitration.[3] This position was based on the assumption that arbitral tribunals are not “tribunals established by law” and that human rights obligations were intended primarily to regulate state action against individuals.[4]

However, the ECtHR has emphasised that the Convention is a “living instrument” and must be interpreted in light of evolving legal and societal contexts.[5] Indeed, although the Convention was signed on 4 November 1950 – well before arbitration gained prominence as a mainstream method of international dispute resolution – the Court has acknowledged the need for flexibility in its application, adapting its interpretation to reflect the growing relevance and impact of arbitration in modern legal systems.

Subsequently, the Court has clarified that the term “tribunal” under Article 6(1) is not confined solely to state courts, but may also include other bodies exercising judicial functions – provided they offer sufficient procedural guarantees.[6] Arbitral tribunals can fall within this definition when their operation is grounded in law, follows established procedures, and leads to decisions that are enforceable in a manner comparable to court judgments. In such cases, arbitrators are regarded as performing roles functionally equivalent to those of judges.[7]

The “Waiver Theory” and Its Critical Nuances

A central feature of the ECtHR’s jurisprudence on arbitration under Article 6 is the so-called “waiver theory”. This principle initially held that by agreeing to submit disputes to voluntary arbitration, parties effectively waived their rights under Article 6 of the ECHR.[8] However, the Court has since refined this position, introducing a distinction between voluntary and compulsory arbitration:[9]

• Compulsory Arbitration: When arbitration is mandated by law or where refusal would entail significant negative consequences, such as in certain sports arbitration contexts (e.g., Ali Rıza and Others v. Turkey), the arbitral tribunal must fully comply with the procedural guarantees of Article 6(1). This was notably affirmed in Suda v. the Czech Republic, where minority shareholders were bound to arbitration by a legal arrangement favouring the majority, a setup the Court found incompatible with Article 6.[10]
• Voluntary Arbitration: When parties enter into arbitration freely, they may validly waive certain rights under Article 6. However, this waiver must be “free, lawful, and unequivocal”.[11] Importantly, such a waiver does not imply the automatic surrender of all Article 6 protections. Fundamental rights – such as the right to an impartial and independent tribunal – retain their normative force and cannot be deemed waived by implication.

The Court has, therefore, emphasised that there are clear limits to what may be waived under Article 6. Certain fundamental procedural guarantees – most notably the right to an independent and impartial tribunal – cannot be waived in advance, even in the context of voluntary arbitration. The Court has carefully distinguished between waivable and non-waivable rights, underscoring that party autonomy cannot override core principles of fairness.[12]

The landmark case of Beg S.p.a. v. Italy exemplifies these boundaries.[13] There, the ECtHR found a violation of Article 6 after Italian courts failed to respond adequately to repeated requests by the applicant company to annul an arbitral award on the grounds of arbitrator bias. Despite evidence of the arbitrator’s professional and procedural links to the opposing party’s parent company, the domestic courts declined to intervene.

In assessing impartiality, the ECtHR applies a well-established two-tier test:

1. Subjective test – examining the personal conduct or convictions of the arbitrator to identify actual bias; and
2. Objective test – assessing whether, from the standpoint of a reasonable observer, the circumstances raise legitimate doubts about the tribunal’s impartiality.

In Beg v. Italy, although no subjective bias was proven, the objective test failed due to the arbitrator’s structural and professional connections. The Court reaffirmed that flexibility in applying Article 6 does not justify compromising its essential safeguards.[14] Commentary on the Beg v. Italy judgment further highlights several important developments:

• The ECtHR effectively elevated the right to a conflict-free arbitrator to part of the broader human right to a fair trial. Arbitrator impartiality is not merely a contractual expectation but a component of substantive human rights law.
• The Court’s decision drew attention to structural and institutional bias, clarifying that objective impartiality includes consideration of recurring appointments, professional ties, and power dynamics within arbitral institutions.
• The ruling advanced the idea that systemic safeguards are essential in arbitration to prevent conflicts of interest and uphold public confidence in arbitral justice.[15]

State Responsibility and Accountability in Arbitration

While arbitral tribunals are private entities, states can incur liability under the ECHR for their actions or omissions concerning arbitration. States have a positive obligation to ensure human rights are protected within their jurisdiction. This may entail state liability if domestic courts:

• Fail to provide effective remedies or sanctions for human rights violations committed within their jurisdiction;
• Refuse to annul arbitral awards that clearly contravene ECHR rights; or
• Enforce (grant exequatur to) arbitral awards that violate the fundamental guarantees of the ECHR.

The Beg v. Italy judgment notably reinforced this by finding Italy liable for its courts’ failure to uphold the impartiality requirement in arbitration proceedings.[16]

In the context of the European Union (EU), the Bosphorus presumption[17] states that an EU Member State is generally presumed not to depart from ECHR requirements when implementing legal obligations stemming from its EU membership, as EU law offers comparable human rights protection. [18] However, this presumption can be rebutted if the protection of ECHR rights is found to be “manifestly deficient” in a specific case. This “manifestly deficient protection” test, though challenging, means that if EU law fails to offer a sufficient degree of protection to investors’ rights, the presumption can be overcome.[19] This is particularly relevant for the non-enforcement of intra-EU arbitral awards, which can raise “concrete issues of proportionality” if no effective redress mechanisms are available to investors.[20]

Summary of ECtHR Case Law Involving Arbitration and Right to a Fair Trial

The European Court of Human Rights has developed a nuanced body of jurisprudence concerning the application of Article 6 to arbitration proceedings. As already explained, the core distinction lies in whether the arbitration is voluntary or compulsory, and whether the proceedings affect civil rights and obligations. Notable cases include, in addition to Beg v. Italy, the following cases:

• Ali Rıza and Others v. Turkey (2020): The Court found systemic issues in the independence and impartiality of the Arbitration Committee of the Turkish Football Federation.[21]
• Mutu and Pechstein v. Switzerland (2018): While the CAS was found sufficiently independent, the absence of a public hearing led to a violation of Article 6.[22]
• Stran Greek Refineries v. Greece (1994): The annulment of an arbitral award via legislative intervention violated both Article 6 and Article 1 of Protocol No. 1.[23]
• Xavier Lucas v. France (2022): Excessive formalism in rejecting an application to set aside an arbitral award was deemed a violation of Article 6, affirming the right to effective access to justice.[24]
• BTS Holding v. Slovakia (2022): The ECtHR found that Slovakia violated Article 1 of Protocol No. 1 by refusing to enforce an ICC arbitral award in favour of BTS Holding. Although enforcement was initially granted, Slovak courts later denied it based on reasons such as public policy and procedural grounds. The ECtHR held that these reasons were neither proportionate nor justified within the legal framework of domestic law and the New York Convention, thus breaching the right to peaceful enjoyment of possessions.[25]

The following recurring principles and concerns have emerged from the ECtHR’s case law regarding the intersection of arbitration and Article 6 of the Convention, particularly in relation to due process, access to justice, and the enforcement of arbitral awards:

• Enforcement Failures: In multiple judgments (e.g., Regent Company v. Ukraine), the ECtHR found that states’ failure to enforce arbitral awards amounted to violations of Article 6.[26]
• Access to a Court: The ECtHR reaffirms that while arbitration can be a legitimate alternative, it cannot entirely replace judicial oversight, especially when domestic courts validate awards or refuse recourse without due justification.
• Public Hearing Waivers: While waivable, the right to a public hearing must be clearly and knowingly relinquished. In Mutu and Pechstein, failure to hold a hearing resulted in a violation.[27]

This evolving jurisprudence underscores the ECtHR’s recognition of arbitration as a legitimate dispute resolution mechanism – but one that must still operate within the bounds of fundamental rights, particularly when linked to state enforcement, regulatory oversight, or quasi-compulsory contexts.

Implications for Arbitration Practice

The evolving ECtHR jurisprudence underscores the need for all participants in arbitration – parties, arbitrators, and institutions – to carefully consider human rights principles:

• Ensuring Validity and Enforceability: Arbitrators are generally compelled to render valid and enforceable awards, and human rights protected by the ECHR can form part of the public policy of contracting states.[28]
• Procedural Fairness: The right to be heard is a core component of procedural justice and must be secured. This can be achieved through written submissions or hearings.[29]
• Hearings: While not always mandatory, and waivable by agreement, a hearing is often considered a substantial part of the arbitral procedure. However, refusing a requested hearing to produce evidence can be a serious due process violation.[30]
• Remote Hearings: The use of remote hearings via videoconference or other technology is acceptable and generally does not restrict access to justice, provided that the parties’ right to be heard is maintained without technological disadvantages.

Conclusion: Safeguarding Fairness in Arbitration under Article 6 of ECHR

The ECtHR’s engagement with arbitration reflects a delicate balancing act between party autonomy and the fundamental requirement for fair trial guarantees.[31] While respecting parties’ freedom to choose private dispute resolution, the Court ensures that this choice does not lead to a waiver of essential human rights principles. This evolving legal landscape demands that all stakeholders in international arbitration remain vigilant, ensuring that proceedings are conducted in a manner that upholds not only contractual agreements but also universal human rights standards, thereby bolstering the legitimacy and effectiveness of arbitration as a mechanism for justice.

• Nina Jankovic, William Kirtley, Aceris Law LLC

[1] See, e.g., ICC Rules (2021): Articles 11, 22(1), 22(4); LCIA Rules (2020): Articles 5, 6, 10.2, 10.3, 19; UNCITRAL Rules (2021): Articles 6–12, 15(1), 17(1), 28–30.

[2] The New York Convention, Article V.

[3]  A. Jaksic, “Procedural Guarantees of Human Rights in Arbitration Proceedings”, 24(2) Journal of International Arbitration 159 (2007), pp. 159-161; M. Benedettelli, “Human Rights as a Litigation Tool in International Arbitration: Reflecting on the ECHR Experience”, 31(4) Arbitration International 631 (2015), pp. 639-640.

[4]  M. Benedettelli, “Human Rights as a Litigation Tool in International Arbitration: Reflecting on the ECHR Experience”, 31(4) Arbitration International 631 (2015), pp. 640-641; A. Jaksic, “Procedural Guarantees of Human Rights in Arbitration Proceedings”, 24(2) Journal of International Arbitration 159 (2007), p. 161.

[5] Tyrer v. United Kingdom, Application No. 5856/72, Judgment, ECtHR, 25 April 1978, p. 12; see also M. Benedettelli, “Human Rights as a Litigation Tool in International Arbitration: Reflecting on the ECHR Experience”, 31(4) Arbitration International 631 (2015), p. 641.

[6] Suda v. the Czech Republic, Application No. 1643/06, Judgment, ECtHR, 28 October 2010; Benedettelli, “Human Rights as a Litigation Tool in International Arbitration: Reflecting on the ECHR Experience”, 31(4) Arbitration International 631 (2015), p. 641, citing, inter alia, Ringeisen v. Austria, Application No. 2614/65, Judgment, ECtHR, 16 July 1971,  and noting that the applicability of Art 6.1 ECHR to arbitration is also implicit in ECtHR decision of 23 February 1999, Suovaniemi and others v. Finland, Application No. 31737/96.

[7] F. Seatzu and P. Vargiu, “Three Views of a Secret: Missed Opportunities in the ECHR’s Recent Case-Law on International Commercial Arbitration”, Italian Review of International and Comparative Law, Vol. 1, Issue 1 (2022), pp. 1–21.

[8]  Council of Europe, “Key Theme – Article 6: Arbitration”, ECHR-KS (updated 28 February 2025).

[9]  Council of Europe, “Key Theme – Article 6: Arbitration”, ECHR-KS (updated 28 February 2025).

[10] Council of Europe, “Key Theme – Article 6: Arbitration”, ECHR-KS (updated 28 February 2025).

[11]  Council of Europe, “Key Theme – Article 6: Arbitration”, ECHR-KS (updated 28 February 2025).

[12]  Council of Europe, “Key Theme – Article 6: Arbitration”, ECHR-KS (updated 28 February 2025).

[13] Beg S.p.a. v. Italy, Application No. 5312/11, Judgment, ECtHR, 20 May 2021.

[14] Beg S.p.a. v. Italy, Application No. 5312/11, Judgment, ECtHR, 20 May 2021, paras. 143, 145-146, 154; N. Andreotti, “When Human Rights and Investment Protection Intertwined: The Role of the European Court of Human Rights in the Enforcement of Intra-EU BITs within the EU”, in N. Lavranos and L.A. Mistelis (eds.), European Investment Law and Arbitration Review, Vol. 9, Issue 1 (2024), p. 28; F. Seatzu and P. Vargiu, “Three Views of a Secret: Missed Opportunities in the ECHR’s Recent Case-Law on International Commercial Arbitration”, Italian Review of International and Comparative Law, Vol. 1, Issue 1 (2022).

[15] G. Nardell, “The ECtHR Judgment in BEG SpA v Italy: A Human Right to a Conflict-Free Arbitrator? – Part I”, Kluwer Arbitration Blog, 29 July 2021.

[16] Beg S.p.a. v. Italy, Application No. 5312/11, Judgment, ECtHR, 20 May 2021.

[17] The Bosphorus Presumption is the ECHR’s presumption, established in Bosphorus Airways v. Ireland, that a national measure required by EU law generally enjoys the presumption of equivalent protection with ECHR rights.

[18]  N. Andreotti, “When Human Rights and Investment Protection Intertwined: The Role of the European Court of Human Rights in the Enforcement of Intra-EU BITs within the EU”, in N. Lavranos and L.A. Mistelis (eds.), European Investment Law and Arbitration Review, Vol. 9, Issue 1 (2024), p. 39.

[19]  N. Andreotti, “When Human Rights and Investment Protection Intertwined: The Role of the European Court of Human Rights in the Enforcement of Intra-EU BITs within the EU”, in N. Lavranos and L.A. Mistelis (eds.), European Investment Law and Arbitration Review, Vol. 9, Issue 1 (2024), p. 39.

[20] N. Andreotti, “When Human Rights and Investment Protection Intertwined: The Role of the European Court of Human Rights in the Enforcement of Intra-EU BITs within the EU”, in N. Lavranos and L.A. Mistelis (eds.), European Investment Law and Arbitration Review, Vol. 9, Issue 1 (2024), pp. 38-39.

[21] Ali Rıza and Others v. Turkey, Applications Nos. 30226/10, 17880/11, 17887/11, 17891/11, and 5506/16, Judgment, ECtHR, 28 January 2020.

[22] Mutu and Pechstein v. Switzerland, Applications Nos. 40575/10 and 67474/10, Judgment, ECtHR, 2 October 2018.

[23] Stran Greek Refineries and Stratis Andreadis v. Greece, Application No. 13427/87, Judgment, ECtHR, 9 December 1994.

[24] Xavier Lucas v. France, Application No. 15567/20, Judgment, ECtHR, 9 June 2022 (French).

[25] BTS Holding, A.S v. Slovakia, Application No 55617/17, Judgement, ECtHR, 30 June 2022; see also “Wrongful Refusal to Enforce Arbitral Award: BTS Holding v. Slovakia”, Aceris Law, 12 July 2022.

[26] Regent Company v. Ukraine, Application No. 773/03, Judgment, ECtHR, 3 April 2008.

[27] Mutu and Pechstein v. Switzerland, Applications Nos. 40575/10 and 67474/10, Judgment, ECtHR, 2 October 2018.

[28] M. Benedettelli, “Human Rights as a Litigation Tool in International Arbitration: Reflecting on the ECHR Experience”, 31(4) Arbitration International 631 (2015), p. 657.

[29] L. Valladares Pacheco de Oliveira, “Access to Justice and the Right to a Hearing in Arbitration”, in J. Hosking, Y. Lahlou and G. Rojas Elgueta (eds.), Does a Right to a Physical Hearing Exist in International Arbitration? (ICCA Reports No. 10, 2022), p. 45.

[30] L. Valladares Pacheco de Oliveira, “Access to Justice and the Right to a Hearing in Arbitration”, in J. Hosking, Y. Lahlou and G. Rojas Elgueta (eds.), Does a Right to a Physical Hearing Exist in International Arbitration? (ICCA Reports No. 10, 2022), p. 60.

[31] A. Kelly, “Human Rights and Arbitration: A Discussion Between the President of the European Court of Human Rights and Neil Kaplan”, Kluwer Arbitration Blog, 30 November 2020.