The right to enforce an arbitral award within the framework of the european convention on human rights

• Author: Dr. José Caro Catalán
• Profession: Profesor Sustituto Interino de Derecho Procesal
• Pages: 179-195

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The right to enforce an arbitral award within the framework

of the European Convention on Human Rights

D. J C C

Profesor Sustituto Interino de Derecho Procesal

1. INTRODUCTION

In recent times the case law of the Spanish Constitutional Court −Tribunal

Constitucional (hereinafter, TC)− has captured the attention of the arbitration

community. In barely two years, the TC has ruled several decisions on the

infringement of public order as a cause for annulment of arbitral awards and

its projection on the right to effective judicial protection (art. 24 CE), putting

an end, at least for the time being, to a dangerous tendency to overreach in the

jurisdictional control of the award 1. However, this jurisprudential milestone

should not overshadow other judicial decisions being taken outside our borders.

The European Court of Human Rights (hereinafter, ECtHR) has created a

remarkable body of case law on arbitration that must be taken into account by

arbitration academics and practitioners 2. Although ECtHR has been issuing

important decisions for the arbitration discipline since its creation, in recent

years the relevance of its arbitration case law has increased exponentially, both in

quantitative and qualitative terms.

Particularly significant cases are Mutu and Pechstein v. Switzerland (no.

40575/10 and 67474/10) 2 October 2018, and the more recent S.P.A. v. Italy (no.

5312/11) 20 May 2021. In these rulings, the ECtHR rules, among other things,

on the relationship between the right to a fair trial, recognised in art. 6 European

Convention of Human Rights (hereinafter, ECHR) and arbitration, adopting a

somewhat surprising position. In a few lines, the ECtHR considers that the right

of access to a court, implicitly recognised in Art. 6 ECHR, does not prevent the

establishment of arbitral tribunals for the resolution of disputes. Traditionally,

1 vid. AA. VV., El proceso arbitral en España a la luz de la doctrina del Tribunal Constitucional, (coord. José

Carlos Fernández Rozas), Wolters Kluwer, Madrid, 2021.

2 Vid. my paper “Arbitraje y Derechos Humanos: Una aproximación a la jurisprudencia del Tribunal

Europeo de Derechos Humanos”, Revista General de Derecho Europeo, núm. 51, 2020, pp. 174-210.

Dr. José Caro Catalán

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it had started from the idea that, in the case of voluntary arbitration, in which

consent had been freely given by the parties, art. 6 ECHR was not relevant, insofar

as submission to arbitration implies a waiver of these procedural rights. However,

in the latter rulings, the ECtHR has made it clear that the signing of an arbitration

agreement does not imply an automatic waiver of all the guarantees provided for

in this article. In other words, even in voluntary arbitration, the parties, unless

waived ex post, retain their right to an impartial and independent tribunal, among

others 3.

But the relevance of the ECHR and, therefore, of the case law of the ECtHR

is not limited to the declaratory phase of arbitration. Very recently, in the

decision Holding, A.S. v. Slovakia, (no. 55617/17) of 30 June 2022, a sometimes

overlooked reality has come to light: the human rights relevance of the procedure

for recognition and enforcement of an arbitral award.

Regarding the judicial process, the ECtHR considers that art. 6 ECHR

includes the right to enforce “final and binding” judicial decisions. Without this

one, the other rights and guarantees recognised in this article would be deprived

of any useful effect. In fact, to satisfy this right the enforcement should be done

within a reasonable period of time. Obviously, this requirement must be assessed

in the light of its complexity, the behaviour of the plaintiff, as well as the amount

and nature of the sum ordered by the judge 4.

The above reasoning also applies to arbitration and, by extension, to

arbitral awards. As we have mentioned, the case law of the ECtHR, under

certain circumstances, considers that the rights and guarantees of Art. 6 ECHR

are applicable to arbitration, so it must be understood that Art. 6.1 ECHR also

incorporates the right to recognition and enforcement of the arbitral award.

As we will analyse in this article, the case BTS Holding, A.S. v. Slovakia, (no.

55617/17) of 30 June 2022 points in this direction, setting a very important

precedent, especially for international arbitration -commercial and investment

arbitration-. In this paper, we will carry out an analysis of this decision with the

purpose of carrying out a general reflection on the right to enforce an arbitral

award.

2. BTS HOLDING, A.S. V. SLOVAKIA, (NO. 55617/17)

2.1. The facts

This judgment is in response to a claim brought on 28 July 2017 by a privately

owned company (BTS Holding), incorporated under Slovak law, against the

3 S.P.A v. Italia (nº 5312/11) of 20 may 2021.

4 Bourdov v. Russie (n.º 59498/00) of 7 may 2002.