La Corte di Strasburgo riconosce la non incompatibilità con l’art. 6 (1) della CEDU della rinuncia preventiva delle parti all’impugnazione di un lodo arbitrale

The comment addresses the decision of the European Court of Human Right rendered in the case Tabbane v. Switzerland, published on March 24th, 2016, whereby the Court has recognized the compatibility with art. 6, par. 1 of the ECHR (and in particular with the right to an impartial and independent tribunal) of an agreement whereby the parties waive in advance their right to challenge an arbitral award. The case arose out of a judgment of the Swiss Federal Tribunal, which rejected the application to set aside an award rendered in Switzerland by virtue of art. 192, par. 1 of the Swiss Law on Private International Law, according to which if none of the parties have their domicile, their habitual residence, or a business establishment in Switzerland, parties may, by an express statement in the arbitration agreement or by a subsequent written agreement, waive fully the action for annulment or limit it to one or several of the grounds listed in Art. 190 (2). The Human Right Court firstly pointed out that the right of each person to an impartial and independent tribunal constituted by the law is not absolute, as, on one side, the term tribunal does not only include an adjudicatory body incardinated in the judicial system of a Contracting State, but also a body freely appointed by the parties, as it is the case for arbitration; on the other side, that the parties may partially waive the rights granted by art. 6, par. 1 ECHR, provided that such a waiver is based on consent, is lawful and is non-equivocal. The Court found that the goals pursued by art. 192, par. 1, of the Swiss Law (i.e. to reduce the workload of the Federal Tribunal and to make Switzerland a more attractive place for international arbitration) are legitimate and that, in the case at hand, parties’ waiver was based on consent and surrounded by minimal procedural guarantees. The Author shares the conclusion of the Human Right Court, but points to cases in which such waiver might be more problematic (such as in sport arbitration) and addresses some issues arising out of the practical application of such waiver in arbitration praxis