Role and application of Article 6 of the European Convention on human rights in CAS procedures / Ulrich Haas. - (International Sports Law Review 12 (2012) 3 : p. 43-60)
Contents:
1.) Introduction
2.) Are arbitral tribunals covered by the ratio materiae of art.6(1) of the ECHR?
3.) Are arbitral tribunals covered by the ratio personae of art 6(1) of the ECHR?
4.) The nature of the dispute and the ECHR-standards applicable to it
5.) The individual rights enshrined in Article 6(1) of the ECHR
6.) Implementing the system of values with respect to arbitral jurisdiction
Summary:
( 1) Private arbitral jurisdiction is not excluded from the scope of application of art.6(1) of the ECHR on the basis of the wording alone. The distinction that is sometimes made regarding the term "tribunal" under art.6(1) of the ECHR - which is to be interpreted autonomously - depending on whether the arbitral jurisdiction has been prescribed by statute or whether it is due to agreement between the parties is not convincing as the transitions between both forms of arbitration are fluid.
(2) Even if the ECHR has no direct third-party effect in legal relations between private individuals, it does not follow from this that the ECHR is of no relevance to arbitral proceedings before the CAS. In proceedings relating to arbitration, the state courts remain addressees of the ECHR and, thus, bound by its provisions. The points of contact between state jurisdiction and arbitral jurisdiction therefore constitute the openings for the ECHR to apply in relation to arbitration proceedings.
(3) In proceedings relating to arbitration, the state courts are under a duty to guarantee that the inalienable values of the ECHR that form part of public policy (ordre public) are observed. From this it follows that the arbitral tribunals like the CAS are at least indirectly bound by this system of values under the ECHR.
(4) Not all of the basic procedural rights under art.6(1) of the ECHR are part of the inalienable system of values which must be observed by arbitral tribunals. The conclusion of the arbitration agreement - usually - constitutes a waiver of the right of access to the state courts and the right to a public hearing enshrined in art.6(1) of the ECHR. In contrast, the right to an independent and impartial judge as well as the right to a speedy and fair hearing are part of procedural public policy (ordre public), which arbitral tribunals such as the CAS must observe.
(5) According to the constant jurisprudence of the ECHR, a waiver of one of the procedural rights forming part of art.6(1) of the ECHR must be "voluntary" and without compulsion in order to be valid. In many of the cases pertaining to sports arbitration this prerequisite will not be met.
However, it does not follow from this that a legal system which allows (private) compulsory arbitration is in breach of art.6(1) of the ECHR. On the contrary - subject to the principle of proportionality - (private) compulsory arbitration is admissible as long as it is in the interest of the good administration of justice. Arbitration proceedings before the CAS, in principle, meet this requirement. However, provisions in the statutes and regulations of the federation limiting the access to the CAS or limiting its mandate to fully review the facts and the law of the case will generally be viewed with scepticism.
(6) The right to a fair trial enshrined in art.6(1) of the ECHR forms part of the procedural public policy and must be observed by the arbitral tribunal at all levels and stages of the procedure.
(7) When modelling the crossroads between state court proceedings and arbitration proceedings, the national legislator has a wide scope of discretion. However, it follows from the ECHR that a Contracting State must reserve for itself a certain degree of supervision in relation to arbitration in order to ensure that the inalienable rights of the Convention are not violated. Whether this supervision is exercised during the arbitration proceedings or only in the post-arbitral phase is for the national legislator to decide. If, however, there is a danger that there is no such supervision at all, a Contracting State of the ECHR will be in breach of its protective duty, which ensues from art.6(1), to guarantee the inalienable procedural rights also with respect to arbitration.
