KOMERCINIS ARBITRAŽAS ir TEISINGO BYLOS NAGRINĖJIMO GARANTIJOS PAGAL EUROPOS ŽMOGAUS TEISIŲ KONVENCIJOS 6(1) STRAIPSNĮ

Abstract

This article focuses on the interplay between the guarantees of the right to a fair trial under Article 6(1) of the European Convention on Human Rights and commercial arbitration. In the first chapter the general issues of compatibility of commercial arbitration and the guarantees of the right to a fair trial are examined as well as the question of whether the said guarantees are applicable to arbitral proceedings. The second and third chapters provide the analysis of the European Court o fHuman Rights’ (ECHR) jurisprudence, Lithuanian and foreign case law and doctrine regarding the applicability and relation of the specific guarantees of the right to a fair trial – i.e. the right to (access) a court, the principle of due process, the principle of independence and impartiality, the right to a reasonable length of proceedings and the right to a public hearing – in commercial arbitration. The following conclusions are reached: the guarantees of the right to a fair trial should apply not only when the state courts examine arbitration-related matters but also in arbitral proceedings. However, it is to be noted that the parties can waive certain guarantees of the right to a fair trial, if such waiver complies with the applicable requirements. According to the ECHR jurisprudence the parties generally waive their right to access a court and the right to a public hearing by concluding an arbitration agreement. The same is not the case with the principle of due process and the principle of independence and impartiality. Certain elements of these guarantees can be adapted to commercial arbitration, however, the conclusion of an arbitration agreement does not mean that the parties waive these fundamental requirements, a breach whereof might amount to a breach of procedural public policy.