Party autonomy is an important principle in arbitration. Parties that opt for arbitration are, to a certain extent, free to organize the arbitral process. The exact scope of this freedom is unclear, especially where fundamental rights of the European Convention of Human Rights (ECHR) are at stake. On 1 March 2016, the European Court of Human Rights (ECtHR) rendered a decision that can shed more light on the scope of the autonomy of parties in arbitration proceedings. In the decision Tabbane v. Switzerland the parties had concluded a so-called ‘exclusion agreement’. By means of such an agreement parties waive, in advance, their right to seek set-aside proceedings at the state court.
This article analyses the decision of the European Court and addresses questions such as: must parties, who have agreed to exclude the right to set aside an award, be regarded as having waived all of their rights guaranteed by Article 6 ECHR? And, how far does the responsibility of states extend for the course of affairs during arbitral proceedings?Journal of International Arbitration