‘Humanising’ arbitration: the interplay between human rights and arbitrationin recent European Court of Human Rights case law
2022 Investment Arbitration Outlook Uría Menéndez, n.º 10
More often than not, arbitrators and practitioners are faced with multiple national legal systems – and even the interaction of international, regional and supranational regimes – when resolving disputes. As President Spano of the European Court of Human Rights (‘ECtHR’) highlighted, the ‘margin of appreciation’ doctrine serves to strike a balance in this context between state sovereignty and fundamental rights – be it the right to fair compensation, which is crucial in most investment arbitration proceedings, or even procedural safeguards and substantial rights under international and regional treaties.
In the context of the Council of Europe, if we accept that there is a ‘constitutional’ right to arbitration as ‘a manifestation of the very broad right to “respect for private life” enshrined in article 8’ of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), then it is certainly worth examining how this right interacts with the other rights and freedoms.
This article explores the ECtHR’s most recent developments in this area, specifically as regards Article 6(1) of the ECHR and Article 1 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘Protocol No 1’).