The parties had settled an earlier dispute under a joint venture agreement on terms which included a provision that disputes between them should not be settled by the ordinary courts but by a special arbitration procedure. The arbitrators rejected all the claims advanced by the applicants. The applicants challenged the award in the Dutch courts on the ground that one of the arbitrators was not independent and impartial. The challenge failed in all the Dutch courts, including the Supreme Court (the Hoge Raad). They argued that the award should be quashed as being contrary to public order interests.
Held: Referring to Deweer, constraint was not alleged. Account must be taken, not only of the nature of the arbitration agreement and of the private arbitration proceedings, but also of the legislative framework providing for such proceedings, in order to determine whether the national courts retained a measure of control and whether that control was exercised on the facts: ‘The Commission observes that the grounds on which arbitral awards may be challenged before national courts differs among the Contracting States and considers that it cannot be required under the Convention that national courts must ensure that arbitral proceedings have been in conformity with Article 6 of the Convention. In some respects – in particular as regards publicity – it is clear that arbitral proceedings are often not even intended to be in conformity with Article 6, and the arbitration agreement entails a renunciation of the full application of that Article. The Commission therefore considers that that an arbitral award does not necessarily have to be quashed because the parties have not enjoyed all the guarantees of Article 6, but each Contracting State may decide itself on which grounds an arbitral award should be quashed.’
TThe mere appearance of a lack of independence or impartiality on the part of an arbitrator did not lead to the quashing of an award under Dutch law, which required either that there was in fact a lack of independence or impartiality or that the doubts in that regard were so grave that the disadvantaged party could not be required to accept the award. ‘[The Commission] considers that Article 6 para 1 of the Convention does not require the Dutch courts to apply a different criterion in determining whether or not to quash an arbitral award. It finds it reasonable that in this respect Dutch law requires strong reasons for quashing an already rendered award, since the quashing will often mean that a long and costly arbitral procedure will become useless and that considerable work and expense must be invested in new proceedings.
The Commission furthermore notes that in the proceedings before the national courts themselves the applicants were provided with ample opportunity to state their case and to challenge the arguments of the adverse party.’ The Commission stressed the pivotal role of the national courts in considering whether there has been a breach of article 6 in a particular case relating to arbitration. The more important the article 6 right the greater the scrutiny to be expected. It is easier to waive the requirement that the arbitration proceedings be in public than the requirement that the arbitrators be impartial.
Citations:
Unreported 1996
Jurisdiction:
Human Rights
Citing:
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Cited by:
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 01 May 2022; Ref: scu.250545
