Fair Play in International Commercial Arbitration

Abstract

Despite the fact that guarantees of a fair trial have always been recognized as an inherent part of international arbitral procedures, this has been regarded primarily through the prism of civil procedure rather than as a question of public law and human rights. The confidential character of arbitration and the relative rarity of annulment procedures before the courts of the seat of arbitration on the grounds of unequal treatment, as well as before human rights bodies such as the European Court of Human Rights, have further exacerbated this situation. Furthermore, it has always been difficult to combine contractual independence and the benefits of arbitration with claims of equal treatment and fair trial. This article establishes the existence of a set of general rules regarding the meaning and substance of equal treatment that are compatible with its commercial (and civil procedural) and human rights dimensions. Article 18 of the UNCITRAL Model Law on International Commercial Arbitration, as repeatedly interpreted and amended by local laws and judgements, arbitral statutes, and decisions by the European Court of Human Rights, provides the foundation for this finding.