The requirements of a fair trial in Romanian institutional arbitration

I. Introductory remarks – The applicability of the European Convention on Human Rights in International Commercial Arbitration

Arbitration is the preferred method for resolving international commercial disputes mainly because of its perceived advantages over ligation in national courts, including party autonomy, privacy, neutrality, international enforceable character of the awards, and procedural flexibility. 

A fundamental human right is the right to fair trial which is enshrined in various international laws and declarations. Certain provisions of the ECHR (European Convention on Human Rights) are considered to be relevant to arbitration. These include Articles 1, 6 paragraphs 1, 8 and 34 of the ECHR and article 1 of Protocol No 1 to the ECHR. The most significant provision is Article 6(1) which defines certain procedural rights and ensuring a right to fair trial states the following: “In the determination of his civil rights and obligations …everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”.

It appears to be no clear consensus on whether or not the ECHR must be taken into consideration by an arbitration tribunal. For that reason, an analyse of the requirements of a fair trial, as they are interpreted in the light of the ECHR, on the one hand, and as they are reflected in the arbitral proceedings, on the other hand, is an interesting subject.

The objective, the core idea upon which the European Union is based, is to unify the legislation of the Member States, and subsequently, to create a set of principles that would be applicable to all means of dispute settlement mechanisms. Even if the Convention does not refer to arbitration, and only the States can be held liable in case of violation of the Convention, arbitration should respect the guarantees of a fair trial as they are mentioned on the Convention, based on the idea of equality in front of the law and of the fairness principle. Also, even if the submission of a dispute in front of the arbitral tribunal is a consequence of the will of the parties, who can choose the rules based on which their dispute will be settled, the liberty to choose such rules is not completely liberal, having some inherent limitations. Why would the parties that choose to settle a dispute in front of arbitration would not benefit from the principles of the Convention, as opposed to parties that choose to file a claim in front of the State courts? Bearing in mind the role of the ECHR, why a diluted approach, a partial applicability of its principles, only to certain dispute resolution mechanisms, would be taken into consideration? By not applying the Convention to arbitration, the role of the Convention itself is denied, or at least diminished.

Arbitration has grown substantially as a method for solving international commercial disputes, notably since the second half of the twentieth century. This period coincided with the coming into force of the 1950 European Convention on Human Rights and Fundamental Freedoms[1].

At the first sight, the Convention and international commercial arbitration have nothing in common.[2] On the one hand, the ECHR, like most other international law treaties, creates obligations primarily for its signatory states while arbitration, on the other hand, is generally seen as a private form of dispute resolution, more or less removed from the control of states.[3]

Without questioning the notion of arbitration as resting upon an arbitration agreement, it can be argued that there is also significant state involvement[4]. Such involvement includes, but is not limited to, the fact that arbitration agreements in most legal systems are treated as bars to initiate judicial proceedings and as well as the fact that most legal systems provide mechanisms through which arbitral awards can be enforced. The question thus arises as to whether the existence of state involvement in arbitration means that arbitral proceedings shall be subject to procedural human rights requirements. The question is whether the procedural requirements set forth in Article 6 (1) of the European Convention on Human Rights apply to arbitration.

The key point in the relation between these two independent and substantially different areas, arbitration and the Convention on Human Rights is article 6(1) ECHR which covers the procedural rights and the right to a fair trial.

Human rights, international trade and investment policy are interrelated. The question is not whether international public law applies to International Commercial arbitration but rather to what extent it applies and what are the consequences of its application.

More specifically, human rights should only aim to protect the fundamental freedoms which a liberal society deems essential for the well-being of the individuals and for the development of democracy. As such, they would have no bearing on those economic and commercial disputes which are typically submitted to arbitration. Secondly, human rights could only be prejudiced by arbitrary or unjustified measures of States acting through their executive power, the resolution of disputes between private parties being consequently out of their scope. Thirdly, since arbitration is a purely contractual matter, limitations to State actions stemming from “bill of rights’’, whether set out in national constitutions or international treaties, should be just irrelevant for parties in dispute, arbitral tribunals and arbitral institutions.[5]

It is strongly argued by many that arbitration should always be subject to the fundamental principles which underpin most domestic legal systems and ultimately reflect the rule of law – and should not, as some contend, be a process which is totally detached from those fundamental principles.

II. The Conventional guarantees of article 6 of the ECHR

Article 6 of the Convention – Right to a fair trial establishes that „In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.” First of all, it must be noted that this article has a civil part, as well as a criminal law part. In the context of arbitration, only the civil aspect of article 6 is relevant, bearing in mind that criminal procedure is not compatible with arbitration. Moreover, even in a civil process, some of the conditions mentioned in this article are incompatible with the nature of arbitration itself. However, as far as the other conditions are concerned, they must be applied in the arbitral proceedings. For example, the CICA-CCIR Rules of 2014 contain in article 6 paragraph 3 an express reference that the right to a fair trial, in a reasonable time, and the right to an independent and impartial tribunal are guaranteed. 

The European Court of Human Rights has analysed in various occasions the applicability of article 6 of the Convention to the arbitral procedures. The Court has made an important distinction between the mandatory arbitral procedures (for example, such procedures are imposed for labour disputes in Germany and commercial disputes in Sweden) and the arbitration that takes place following the freely expressed will of the parties. As far as the mandatory arbitral procedures are concerned, the Court established that the requirements of article 6 of the Convention must be met, and that the state can be held liable in case of violation of the stated provisions.

On the other hand, for the voluntary arbitration, the court established that by signing the arbitral convention, the parties voluntarily waived the right to have the dispute settled by a tribunal that is „established by law”, as it is mentioned in article 6 of the Convention, choosing a private dispute resolution mechanism. Also, as a consequence of the private character of arbitration, the parties also waive the right to a public hearing. It is true that the arbitral rules can provide that the parties can decide to make the proceedings public, but this represents the exception in arbitration, the principle being the private character of the proceedings[6]. As far as the other conditions imposed by article 6 of the Convention for the fairness of the proceedings, that are part of the public policy domain, they should apply to arbitration without any limitation, because a violation of this rights would make the state liable in front of the European Court on Human Rights.

In this context, it cannot be considered that by signing the arbitration agreement, the parties decide that none of the requirements imposed by article 6 of the Convention are to be applied. For example, there are certain warranties, like the fairness of the procedures, the equality of arms, the reasonable-time frame in which a decision must be rendered, the independence and impartiality of the Tribunal, that are compatible with the rules and with the characteristics of arbitration.

The direct application of Art. 6 (1) in arbitration has both its proponents and opponents. On the one hand, the arguments against the direct application can be the following: the waiver of rights, the fact that arbitrators are not tribunal established by law in the sense of Art. 6 (1) and that the ECHR is binding only for states.[7]

On the other hand, direct application can serve as an instrument of harmonization of international commercial arbitration. All legal regulations of arbitration contain basic procedural guarantees. Although these values are universal, their actual effect is determined by the applicable legal order. [8]

At least two of the conditions imposed by article 6 of the Convention do not apply to arbitral procedures, namely the right to a tribunal established by law and the publicity of the proceedings[9].

III. Romanian legal frame regarding arbitration and human rights

Under Romanian law, the provisions related to the arbitral convention can be found in articles 548-554 of the New Code of Civil Procedure and in articles 11-16 of the Rules of arbitration of the Romanian Chamber of Commerce and Industry.

An important aspect is that article 21 of the Romanian Constitution[10] provides that “any person can address a claim to justice for the protection of his rights, his freedoms and his legitimate interest. No provision can limit this right. The parties have the right to a fair process and the decision must be rendered in a reasonable time-frame”. This fundamental provision of the fundamental law in Romania makes no distinction between disputes that are settled in front of the Courts of law and those that are settled by arbitration. Thus, these provisions that assure the fairness of the process have a general applicability and must be respected in the arbitral proceedings.

Article 29 of Law no. 335/2007[11] regarding the Commerce chambers of Romania states that the Court of International Commercial Arbitration is a permanent arbitral institution, without legal personality, that functions by the National Chamber of Commerce and Industry. The Rules regarding the organization and functioning of the Court of International Commercial Arbitration mention, in article 3, that the Court of Arbitration has the attribution to organize the procedures necessary in order to settle domestic and international disputes, following the procedural rules of the Court of International Commercial arbitration, of the New Code of Civil Procedure, of the special provisions regarding arbitration and of the international conventions to which Romania is a part of. Article 13 paragraph 1 of the same Rules mentions the obligation of the arbitrators to settle the case in an independent and impartial manner, expressly mentioning the obligation of the arbitrators to respect these warranties established by article 6 of the Convention. Paragraph 2 establishes the obligation of good-faith for the settlement of the case. Moreover, in the case of CCIR-CICA rules, there are express provisions regarding the period of time in which an arbitral award must be rendered.

Article 23 of the CCIR-CICA Rules refers to the term of arbitration, stating that unless otherwise agreed by the parties, the arbitral tribunal shall render the award within maximum six months from the date of its set up. The second paragraph of this article mentions the possibility of suspension of the time limit, but only in the situations that are expressly mentioned. Paragraph 3 of the mentioned article plays a vital role regarding the subject analysed in this dissertation, mentioning that the arbitrators must exercise their powers in the conditions provided by article 21 of the Romanian Constitution, article 6 of the European Convention on Human Rights, that assure the fairness of the process, rendering a decision in a reasonable time, and also an independent and impartial tribunal. Regarding the reference to article 6 of the Convention, certain discussions can be made.

First of all, article 13 of the Rules provides that only certain warranties mentioned in the Convention apply in a direct manner to arbitration in front of the CICA. The reference to article 6 is firstly mentioned in a general manner, but then the text expressly mentions some of the conditions in this article. The requirement of publicity and the one regarding the establishment by law of the tribunal are not compatible with the arbitration proceedings in front of the CICA in Romania.

Regarding the Procedural Rules of Arbitration of the CICA, article 6 states the principle that by choosing the Court of Arbitration as the institution that has jurisdiction to settle the dispute the parties also choose, in an implied manner, the rules of arbitration of this Court. However, the freedom of the parties in choosing the rules can interfere with this principle, by the fact that the parties can decide to apply other rules than the ones of the Court. These freedom to choose the rules in not absolute, firstly because the Court can limit the choice of the parties if the rules established by them are not compatible with the rules of the Court, and secondly because the parties cannot choose the procedural rules of another arbitral institution if there is an express interdiction to do so in the chosen rules. For example, this is the case of the rules of ICC Paris, which cannot be applied by other arbitral institutions.

Article 7 of the Procedural Rules of Arbitration of the CICA[12] restates the principle from the Rules regarding the organization and functioning of the Court of International Commercial Arbitration, mentioning that the arbitrators must exercise their powers in the conditions provided by article 21 of the Romanian Constitution, article 6 of the European Convention on Human Rights, that assure the fairness of the process, rendering a decision in a reasonable time, and also an independent and impartial tribunal. Paragraph 2[13] introduces the sanction in case of violation of these principles, stating that under the sanction of nullity of the arbitral award, the parties must be treated in an equal manner in front of the Tribunal, and they must have the right to defend themselves, in a contradictory process.

Even if this text does not appear to permit any derogation from these principles, the provisions of the New Code of Civil Procedure must be taken into consideration. The provisions of article 575 of the NCCP state that the fundamental principles of the civil process are to be applied in a similar manner to the arbitral proceedings, with the distinctions imposed by the voluntary character of arbitration. What it may appear surprising is that article 575 mentions in paragraph 2 the principles that should apply, by direct reference to the relevant provisions of the NCCP, but does not expressly mention article 6 of the Code of Civil procedure that mentions the necessity of a fair process.

However, this apparent lack of correlation is not, in fact, a reason to consider that the fairness of the process is not a condition in arbitration. Article 576 NCCP states that in case if institutional arbitration, the rules of the institution will apply. As mentioned above, in the case of CCIR-CICA, the fairness of the process is mentioned.

Moreover, article 619 of the Code of Civil Procedure mentions expressly, in paragraph 3, that the right to defence and the contradictorily character of the proceedings are guaranteed. It is hard to see what the reason of the legislator was to expressly mention only these two guarantees of article 6 from the Convention in an express manner, bearing in mind that other principles are also applicable. This aspect is clear from the provisions of the Constitutional text of article 21, that provide principles that are to be applied regardless of the nature of the panel that has to settle the dispute, but also, in the case of CICA, from the specific rules of this institution.

IV. Arbitration in front of the Court of International Commercial Arbitration attached to the Chamber of Commerce and Industry of Romania

In the last decade, the international arbitration as a method for dispute resolution has become a ‘big business’.[14] Based on this fact, it is necessary that the civil procedure rules concerning arbitration assure the conditions in which arbitration should be organized and assure its effectiveness. Based on the private character of the arbitration, the rules established in the legislation should not limit in an excessive manner the parties will in organizing and performing arbitration. The legal provisions should aid the arbitrators in exercising their attributions in order to render an equitable solution, and should come as guidance for the parties, intervening only where the parties do not establish rules or the rules they would want to apply are contrary to public policy.

The New Romanian Code of Civil Procedure provides the general legal principles and the main rules for the arbitral proceedings, which should apply in any form of voluntary arbitration, in Book IV, Titles I to VI, and certain rules that should apply to institutionalized arbitration are mentioned in Title VII of Book IV.

The NCCP rules regarding arbitration

The main difference between ad hoc and institutional arbitration is that the latter is generally defined by the existence of an organization, which organises the arbitral proceedings. So, the objective of the organization is to provide certain services regarding the dispute resolution, simplifying the role of the parties, which only have to conclude an arbitration agreement in order to apply the rules of that institution to their care and to have access to the arbitral tribunal that is organised by that institution.

Arbitration does not violate the provisions of article 21 of the Romanian Constitution regarding the free access to justice and the right to a fair trial. Arbitration is an alternative and exceptional procedure towards the administration of justice by the ordinary courts[15], as the Constitutional Court of Romania pointed out.

The NCCP introduces, for the first time, specific provisions that should apply to institutional arbitration, embodied by Title VII of Book IV. In the light of this provisions, arbitration in seen as a third-level type of procedural ruling, which is to be considered by the parties as an alternative not only to ordinary courts, but also to ad hoc arbitration[16].

Title VII of Book IV is the legal consequence of article 545 of the NCCP, which provides that “Parties may agree that the arbitration will be organized by a permanent arbitral institution, or by another entity or natural person. In such instances, the dispute shall be resolved by arbitrators designated or accepted by the parties in accordance with the arbitration agreement or the rules of the permanent arbitral institution”. Thus, it can be concluded that institutional arbitration has a private nature, a permanent and independent character towards the state organised jurisdiction, founding of the written agreement of the parties, which waive the right to file a claim in front of the ordinary courts, in favour of arbitration.

Even if arbitration has a private nature and is not directly organised by the state, it does not have an economic objective and does not seek profit. As mentioned in article 616 paragraph 1 last thesis of the NCCP “the activity of the arbitral institution shall not have an economic character and shall not seek profit”. The text is very clear, excluding ab initio the possibility for profit-making legal entities to organize institutional arbitration. The arbitral taxes and fees that are imposed to the parties not to produce profit, but to cover the expenses that are required by the arbitral proceedings. Arbitral tribunals should be attached to institutions of associative nature, having the purpose “to foster reconciliation and peace through the promotion of international commerce”[17].

In Romania, the chambers of commerce are established as non-profit associations. That means that the chambers should respect the relevant legal provisions governing the establishment of non-profit organizations[18]. In the context provided by article 616 paragraph 2 of the NCCP[19], if an arbitral institution is not independent, neither are the arbitrators[20]. In the context that the arbitrators play a vital role in the resolution of the dispute and because the equal treatment of the parties must be assured, the independence and impartiality of the arbitrators are fundamental[21]. Based on the free will of the parties to decide the rules and the conditions of arbitration and on the lex voluntatis principle, it is mentioned by the NCCP that the parties may choose an arbitral institution by their arbitration agreement[22]. In this context, the parties have the possibility to modify even the rules that apply to the main proceedings, but only if the institutional rules do not limit the parties right to do so. Even if in case of disagreement between the arbitration agreement and the rules of the arbitral institution referenced in that agreement, the arbitration agreement prevails[23], there are certain provisions that the parties cannot decide to make inapplicable, like the ones ensuring the equality of arms, or the fairness of the trial.

According to the provisions of Article 619 paragraph 1 of the NCCP, the arbitration rules applying to institutional arbitration are adopted by its governing body in conformity with its own set of rules and pursuant to the by-laws. By the arbitration agreement, the parties are considered to automatically accept the procedural rules of that institution. Correlating the provisions or article 617 par. 2 with the ones of article 619 par. 2 NCCP, it can be concluded that the parties can derogate from the set of rules of the institution organizing the arbitration, but the mentioned institution has the legal possibility to decide that the procedural rules indicated by the parties will not apply and the derogation is null. This possibility of the arbitral institution to limit the liberty of the parties in choosing the procedural rules that are to be applied is a mechanism set forth in order to ensure, first of all, a certain predictability and the possibility to base on the case law of the tribunal to predict a possible solution in a given case, and, secondly, it assures a minimum standard regarding the warranties in the proceedings, because a more stronger party may want to apply by the arbitration agreement procedural rules that are very detrimental to the other party, and profit of its position, by economic violence. The limitation regarding the possibility of the parties to choose the rules set forth in article 541 of the NCCP also applies, implying that the parties can derogate, provided that the rules they choose do not contravene with the public order and the mandatory provisions of the law. By imposing certain rules from which the parties cannot derogate, the arbitral institutions ensure a minimum set of warranties for a due process, avoiding an unfair, arbitrary or unreasonable treatment for the parties, or at least, for one of them.

In institutional arbitration, the standards regarding the independence, neutrality and impartiality are generally included in the arbitration rules of that institution. For example, the CCIR-CICA Rules provide the warranties that must be applied in order to assure that the proceedings are equitable, even in certain provisions would have applied, based on the NCCP provisions, even if they would not have been mentioned expressly in the CCIR-CICA Rules. The NCCP makes a general reference to legitimate doubt regarding the impartiality and the independence of an arbitrator, and it only imposes certain minimum requirements, because the parties are free to agree over any specific standards of independence and impartiality that they want to be applicable to the arbitrators of their case[24].

Bearing in mind this relation between the lex voluntatis principle and the intervention of the arbitral institution in limiting their freedom, it has been argued that the limitation is excessive, affecting the universally recognized freedom of the parties to decide on the arbitral rules applying to their dispute. However, in order to ensure an equitable process, it is necessary to impose certain limitations. Similar provisions are also found in other states and the ruling on the powers of the arbitral institution apply only if the parties agreed in choosing the institutional arbitration to administrate their dispute, confirming the second level of appliance of these rules in institutional arbitration[25].

Even in front of the arbitral tribunal, regardless of its nature, specific rights like the right to defence or the adversarial principle are guaranteed by the national procedural law[26]. Even if only these two rights are expressly mentioned in article 619 par. 4 NCCP, the parties also enjoy exercising in good faith other procedural rights embodied by the NCCP deriving from the fundamental principles of the civil proceedings (for instance, the equality of the parties during the proceedings, the right to dispose over the subject and the limits of the proceedings).

In this context, a question appears regarding the possibility for arbitral proceedings and their compatibility with fundamental rights to be analysed by the European Court of Human Rights, that has the main attribution to analyse if the procedure set forth by the state and applied in the ordinary courts respects the fundamental principles and the human rights. Bearing in mind that the provisions regarding arbitration expressly mention that the proceedings should be conducted respecting the human rights, the problem that has to be analysed is if a arbitral institution has the legal capacity to be part of a case in front of the European Convention on Human Rights and if it can be held liable in case a violation is established by the Court.

Remedies provided by the national Romanian law for violation of the rights guaranteed by the Convention

The state has positive obligations regarding the necessity to provide a legal frame in which arbitration could take place, legal frame that must respect certain requirements that include the guarantees of a due process in front of an arbitral institution.

A question that needs to be addressed is how the state can be held responsible for potential defaults in private arbitration proceedings. Can there be international accountability before the European Court of Human Rights? The state cannot be held directly accountable for the actions of an arbitral tribunal.[27] The arbitrators are not part of the state-organised judiciary. So, if state responsibility is to exist, it must be construed in an indirect manner.

In case of a violation of certain obligations by an arbitral institution, a party can introduce an action for annulment in the conditions of article 608 NCCP, which provides rules that apply not only to ad-hoc, but also to institutionalised arbitration, including the CCIR-CICA.

For example, article 608 paragraph 1 provides certain reasons that can lead to the annulment of an award, that are mentioned in article 6 of the ECHR. Point e) from this paragraph provides that in case of lapse of arbitration, if the award is rendered after the expiration of the term, it is possible to annul the award. This point refers only to article 567 NCCP, but there is no reason why it should not apply to the arbitral rules of certain institutions. In case of CCIR-CICA, there are provisions that expressly state the duration of the procedure, namely article 23 of the CCIR Rules, and for this reason it is hard to consider that the equitable time frame in which the decision must be given can be breached. The simple non-compliance with the term of arbitration does not lead to a violation of article 6 ECHR, but if a number of suspensions are made, based on paragraph 2 of article 23 of the Rules, there can be a problem regarding the time-frame.

Point g) of the stated article provides that if the arbitral decision does not contain the reasoning on which the decision is based, this aspect can lead to the annulment of the award. The reasoning of an award is an aspect that does not necessarily fall under the scope of article 6 of the ECHR, as in this aspect the member states have a certain possibility to decide and to impose rules. In Romania, the reasons of a decision are extremely important, and a decision that does not contain such reasons is not considered in compliance with the principle of due process, because it limits the rights of a party in a way that is not admitted by Romanian law.

Point h) holds a special role in the context of an action for annulment, as it states that the arbitral award can be annulled if it is contrary to the public order and to the imperative provisions of the law. There are certain core principles mentioned in article 6 of the ECHR that have to be respected by each state. These principles fall into the public order, and for that reason, a violation of these principles is not compatible with the Convention. Moreover, such violation gives the right to a judicial authority of the state to annul a decision that is contrary to these core principles.

In this context, it is clear that the state has the means to annul an arbitral decision that is contrary to article 6, with the limitations imposed by the nature of arbitration, which I previously analysed. If a state fails to annul an arbitral award that is contrary to article 6 and for which an action for annulment is brought in front of the state courts, it can be stated without a doubt that the state can be held liable for such violation in front if the European Court on Human Rights, even if the violation was not directly caused by the state. The fact that the state did not intervene in order to annul the decision is enough, even if the violation is not directly imputable to the state.

In this context, it is clear that the legal frame in which the state can verify the conformity of an arbitral decision with the fundamental principles of article 6 of the ECHR exists. The person that considers that his core rights guaranteed by the ECHR were not respected has to follow this procedure in front of the state courts, only then having the possibility to go in front of the Court of Human Rights in order to seek justice. However, an interesting aspect is that the action will be filed against the state, and not against the arbitral tribunal, which does not have passive legal capacity in front of the Court of Human Rights.

V. The CICA-CCIR arbitral institution

The CICA-CCIR is the leading permanent institution for arbitration in Romania[28].

To ensure the full effect of the autonomy of the arbitral institution, as stated in article 616 par. 2 of the NCCP, the CICA-CCIR applies its own Organizational Chart, a set of rules on the organization and operation of the CICA-CCIR, which has been in force since 10 April 2014. The Chart prepared the conditions for the issuance of the new Court rules of Arbitration and the new rules of the Board of the Court.

Procedure in front of the CICA-CCIR

CICA-CCIR applies its own arbitration procedure, which is established at this moment in the Rules that are in force since 5 June 2014. However, bearing in mind that not all aspects that can appear during the proceedings are fully and in a detailed manner analysed in the Rules, the CICA-CCIR also applies the NCCP, other special laws in the field of arbitration and the provisions of the international conventions to which Romania is party.

The basic procedural rights belonging to the parties during the arbitral proceedings are identical as those mentioned in different legislations regarding arbitration, bearing in mind the procedural requirements that each state must apply, based on the international Conventions that they are part of. For instance, the equality of the parties, the right to an adversarial procedure, the possibility to present one’s case, the obligation for the arbitrators to motivate the decision are principles that are of public order in each state and that cannot be removed by the parties, or neglected by the arbitrators.

The confidentiality principle that applies to arbitration is expressly mentioned in the Chart and in the Rules of the CICA-CCIR which provides the obligation to respect this principle as a general obligation imposed on any person acting within the CICA-CCIR, and not only for the arbitrators forming the panel agreed by the parties[29].

The 2014 CICA Rules

The CICA-CCIR Rules are imposed on the parties who agreed, by the means of their arbitration agreement, to solve their dispute by arbitration organised by this institution, this being and aspect that is sustained by article 619 par. 2 NCCP that mentions a presumption that the parties who choose a certain institutional arbitration organisation would also choose the rules of that institution. However, the parties are free to choose other procedural rules for their arbitration, but this aspect is conditioned by the confirmation of the acceptance of the arbitral tribunal and of the Court Board[30]. This provision is closely linked to article 541 of the NCCP, which was mentioned above. The parties may freely decide which procedural rules to apply to their dispute, based on the lex voluntatis principle.

In addition, the CICA-CCIR Rules of 2014 contain certain provisions that are in accordance with the provisions from the NCCP regarding the applicable rules. For instance, the Rules refer to:

• the prevalence of the arbitration agreement in case of conflict with the procedural rules of the institutional arbitration organization (article 617 paragraph 2 CICA-CCIR Rules);
• the exceptional application of the rules of the institutional arbitration organization referred to by the arbitration agreement, when the parties did not provide their own rules for arbitration (article 619/3 CICA-CCIR Rules 2014);
• the application of the parties’ own rules, in conformity with the circumstances of a particular case, when an arbitration institution may give effect to the parties’ option for their own rules (artile 619 paragraph 2 CICA-CCIR Rules 2014).

The resolution of the arbitral dispute is an exclusive task of the arbitrators, who have to issue a decision that is final and enforceable, within a reasonable time period, with compulsory effects for the parties to the arbitral proceedings. The arbitrators must ensure that the parties in the dispute can benefit from the right to a fair trial, in good faith and in full cooperation with the arbitral tribunal[31].

The confidentiality of the proceedings is a principle of arbitration, article 7 par. 5 of the COCA-CCIR Rules 2014. It is clear that at least the publicity principle that is guaranteed by Article 6 of the European Convention on Human Rights does not apply to arbitration. Bearing in mind the lex voluntatis principle, the possibility of the parties to decide that the arbitral proceedings are to be held publically is possible. However, this aspect must result in an express manner from the parties’ agreement.

Regarding the reasonable time in which a decision should be rendered, it was considered that the role of the arbitrator, the effectiveness of the proceedings in order to reach a solution in a reasonable time holds priority over other types of activities that the CICA-CCIR has to do. This implies a special behaviour of the arbitrators that “should avoid overbooking and applications for time extensions due to the constraints imposed by their own agenda; the capacity of an arbitrator to show as a good professional seems to be conditioned by his/her availability when accepting an appointment and during all over the proceedings[32]”. Even if a time extension does not automatically imply a violation of the reasonable time frame in which a decision should be rendered, it is necessary that the arbitrators should take all the measures necessary to respect the initial time frame, in order to avoid a lapse of arbitration.

Aspects that ensure the impartiality of the arbitrators

The impartiality and independence of the arbitral tribunal are fundamental requirements of international commercial arbitration.[33] An arbitration agreement may constitute a waiver of the right of access to the courts, but it surely is not intended to be a blanket waiver of the guarantees to a “fair hearing” contained in Art. 6.[34] The Convention authorities have always held that a waiver of the right of access to a court, as reflected in an arbitration agreement should not be considered as amounting to a waiver of all rights under Art. 6 of the ECHR, but that it should only imply a partial waiver of the guarantees set forth in Art. 6.[35] Consequently, the requirement that a hearing be fair may require some adaptations to be applied to arbitral proceedings but is in no way inapplicable to arbitration.[36]

The mission to arbitrate has to be either confirmed, or either refused explicitly in writing by the person that was nominated as arbitrator in a case. The arbitrator must provide a “statement of acceptance” within five days of receipt of the proposal for appointment. This document in compulsory for the appointment as arbitrator, and it reflects the engagement of the arbitrator to act in an independent and impartial manner.

If the arbitrator did not refuse to be appointed, there is the possibility of the parties to challenge the arbitrator for incompatibility reasons, subject to the conditions set forth in article 20 of the CICA-CCIR Rules. The reasons for incompatibility that apply to judges, reasons mentioned in article 42 of the NCCP apply for arbitrators, but they can be challenged not for only these reasons, but also if the party that makes the challenge considers that the arbitrators do not meet the conditions provided by the arbitration agreement for their appointment, when there is a personal interest of the arbitrator regarding the case, when the arbitrator is in a direct trade relationship or is the employer or the employee of one of the parties, or if the arbitrator provided assistance to one of the parties or testified in its interest in the same dispute, in previous stages[37].

To conclude, the right to an independent and impartial tribunal is part of European public policy, and consequently this part of Art. 6 (1) is applicable to arbitration proceedings. Generally, the standard of impartiality and independence used under the Convention and the standard used in international commercial arbitration is the same.[38]

Decision within a Reasonable Time

The decision has to be rendered within six months following the constitution of the arbitral tribunal. Based on the parties express agreement, it is possible that the time frame could be extended, if such a measure is considered necessary in order to give a correct solution in the case.

VI. Final considerations

The applicability of Article 6 ECHR in arbitration proceedings calls for a more thorough debate. In case of statutory arbitration there is no doubt about the applicability of Article 6 ECHR. In the Bramelid & Malmström case the Commission held that:

“A distinction must be drawn between voluntary arbitration and compulsory arbitration […]. If […] arbitration is compulsory […] the parties have no option but to refer their dispute to an arbitration board, and the board must offer the guarantees set forth in Article 6 §1.”[39]

Problems arise in practice with regard to alleged problems in consensual arbitration proceedings.

Returning to an idea mentioned in the first pages of this article, by not applying the Convention to arbitration, the role of the Convention itself is denied, or at least diminished. Even if the submission of a dispute in front of the arbitral tribunal is a consequence of the will of the parties, who can choose the rules based on which their dispute will be settled, I consider that the possibility to choose the rules is not completely liberal, having some inherent limitations. By considering arbitration as a dispute settlement procedure in which the parties have the liberty to render inapplicable every guarantee provided in the Convention, the result will be that arbitration would become a mechanism that the parties can choose in order to avoid the guarantees provided in the Convention. This should not be considered as a role of arbitration, and most certainly, this was not the intention of the Convention, ythst’s core principles should be applied to all disputes, not only to the disputes that are filed in front of the state courts.

The core principles that should apply to all dispute settlement mechanisms represent some public policy values, which limit the will of the parties, even in arbitration. Opposition to the idea that arbitration gives the possibility to the parties to choose all the rules applicable is to be considered. The will of the parties is the main criteria in arbitration, but this principle of freedom of choice has some limitations. There are certain rules that represent some absolute principles, which would apply, even without the consent of the parties, and even if they disagree with them. This idea is based on provisions like article 7 of the CCIR-CICA Rules, which provides that “the parties shall be ensured equal treatment, the right to defence and a reasonable opportunity to present their case, under the sanction of nullity of the arbitral award”, and does not mention the possibility to derogate from this principle.

In conclusion, “all persons concerned with the conduct of arbitrations have a duty to ensure that they are familiar with the principles of human rights law.”[40] As a part of the public policy, that is given priority against the consensual character of arbitration, there are certain principles of a great importance stated in article 6 of the ECHR that do not admit any derogation, thus, limiting the free will of the parties. The reason for this limitation is the protection of the international law public policy rules. It is true that the nature of arbitration does not permit all the guarantees provided in article 6 of the ECHR to apply to arbitration, but for the core principles that should apply to any process, like the equality of arms, no derogation is permitted. In the words of Corneliu Coposu, “we can negotiate anything, but we do not negotiate principles[41]”.

Footnotes

[1] Juan Carlos Landrove, European Convention on Human Rights’ Impact on Consensual Arbitration, Besson, Hottelier, Werro (edit), Human Rights at the Center, Basel, Geneva, Zurich, Schulthess, 2006, p. 74; The ECHR was drawn up within the Council of Europe in 1950 and entered into force in 1953 in an effort to enforce the United Nations Universal Declaration of Human Rights of 1948 within Europe. 

[2] Klara Svobodova, Application of the Article 6 (1) of the ECHR in International Commercial Arbitration, p. 109;

[3] Fredrik Ringquist, op.cit., p. 8.

[4] Fredrik Ringquist, op. cit., p. 3

[5] Massimo V. Benedettelli, Human rights as a litigation tool in international arbitration: reflecting on the ECHR experience, 2015

[6] Fredrik Ringquist, op. cit., p. 37

[7] Klara Svobodova, op.cit., p. 111;

[8] ibidem, p. 117;

[9] ibidem, p. 46;

[10] Published in the Official Gazette of Romania, Part 1, No 767of 31/10/2003

[11] Published in the Official Gazette of Romania, Part 1, No. 836 of 06/12/2007

[12] Art. 7. The principles of arbitration procedure

(1) The arbitral tribunal shall exercise its powers and shall fulfil its mission in accordance with the provisions of Article 21 paragraphs (1)-(3) of the Romanian Constitution as republished and of Article 6 paragraph (1) of the European Convention on Human Rights, that guarantees the right to a fair hearing within a reasonable time, as well as the right to an independent and impartial tribunal.

(2) Throughout the arbitral proceedings the parties shall be ensured equal treatment, the right to defence and a reasonable opportunity to present their case, under the sanction of nullity of the arbitral award.

[13] Article 7 (2) Throughout the arbitral proceedings the parties shall be ensured equal treatment, the right to defence and a reasonable opportunity to present their case, under the sanction of nullity of the arbitral award.

[14] B.M. Cremades, State Participation in International Arbitration, in Liber Amicorum – en honneur de Serge Lazareff, Editions A. Pedone, 2011, pp. 73-74

[15] Decision of the Constitutional Court No. 8/2007 published in the Official Gazette of Romania No. 31/31 January 2007

[16] Cristiana I. Stoica, op. cit., p. 291

[17] Y. Derains and E.A. Schwartz, A guide to the ICC Rules of Arbitration, Wolters Kluwer, Law & Business, 2005, p. 81

[18] The legal regime of non-profit legal entities is represented by the Government Ordinance (GO) 26/2000

[19] Article 616 paragraph 2 NCCP „in regulationg and conducting its jurisdictional activity, institutional arbitration is autonomus from the institution that established it. That institution shall set forth the rules necessary to guarantee its autonomy.”

[20] Cristiana I. Stoica, op. cit., p. 292

[21] M. Henry, L’independence de l’arbitre au Coeur du Juste et de l’Utile, 4 Les Cahiers de l’Arbitrage, The Paris Journal of International Arbitration, 2013, LGDJ, pp. 873

[22] Art. 617 paragraph 1 NCCP “In their arbitration agreement, the parties may subject the resolution of their dispute to an arbitral tribunal constituted under the rules of an arbitral institution.”

[23] Art. 617 paragraph 2 NCCP

[24] Y. Derains, L. Levy, introduction Section, Is Arbitration Only as Good as the Arbitrator? Status, Powers and Role of the Arbitrator – ICC Institute of World Business Law, 2011, p. 7-12

[25] See Dialogue with Prof. PhD. Viorel Mihai Ciobanu: civil procedure in the context of the New Code, Romanian Revue of business law, 2013, p. 31

[26] Article 619 par. 4 NCCP

[27] See, for example, J.E.S. Fawcett, op. cit., pp. 144-145.

[28] Cristiana I. Stoica, op. cit., p. 305

[29] Cristiana I. Stoica, op. cit., p. 309

[30] Article 6 CICA-CCIR Rules 2014

[31] Article 7 par. 7 CICA-CCIR Rules 2014

[32] Y. Derains, L. Levy, op. cit., p. 12

[33] Kyriaki Noussia, op. cit., p. 43.

[34] Alan Redfern & Martin Hunter, op. cit., p. 416. / Catherine A. Kunz, Waiver of Right to Challege an International Arbitral Award is not Incompatible with ECHR, European International Arbitration Review VOL. 5:1, p. 131; “The central component of the ‘fair hearing’ right is that the court which hears the case, conducts the proceedings in a certain way. The case must be heard in a proper manner”, p. 67.

[35] Kyriaki Noussia, op. cit., p. 42.

[36] Juan Carlos Landrove, op. cit., p. 87.

[37] For an exhaustive enumeration of the incompatibility cases, see Article 20 paragraph 1 a)-e) of the CICA-CCIR Rules of 2014.

[38] Sandija Novicka, op. cit., p. 24.

[39] EComHR, 12 December 1983, Bramelid & Malmström – Sweden (appl. nos. 8588/79 and 8589/79, published in D&R vol. 38, p. 38).

[40] Mustill & Boyd, Law and Practice of Commercial Arbitration in England, page 77.

[41] Negociem orice, dar nu negociem principii.