Lloyd's Maritime and Commercial Law Quarterly
Arbitration and the Human Rights Act
Clare Ambrose *
This article considers the effect of the Human Rights Act 1998 on commercial arbitration. It is argued that arbitrators applying English law will have to interpret legislation compatibly with European Convention rights, and will also be under a wider duty to act compatibly with those rights. This duty either arises from the Human Rights Act itself, or, more probably, an arbitrator’s implied duty to apply the law. The Act will not affect confidentiality and procedural flexibility in arbitration since by electing to arbitrate the parties have waived procedural rights under Art. 6(1) of the Convention, subject to their overriding right to a fair and impartial hearing under the English Arbitration Act 1996.
INTRODUCTION
The Human Rights Act 1998 has been presented to the public as a far-reaching constitutional reform. For most practitioners, judges and academics the Act represents a challenge. Despite the growing literature on the Act, the extent to which it applies to arbitration has not yet been given detailed consideration. Arbitration is used to resolve a huge number of civil disputes ranging from large commercial disputes to package holiday complaints. Is this area immune from the challenge presented by the Human Rights Act? In this article I will try to assess how the Human Rights Act will apply to arbitration and consider what practical implications it may have. I deal solely with commercial arbitration arising voluntarily out of an agreement to arbitrate; compulsory arbitration schemes would be treated very similarly to court proceedings.1
It may be useful to start by explaining the basic scheme of the Human Rights Act. The Act sets out in its long title to give further effect to the European Convention on Human Rights (“the Convention”). The Convention is an international treaty drawn up in the aftermath of the atrocities of the Second World War to promote human rights and democracy. Institutions based in Strasbourg (in particular the European Court and Commission of Human Rights2
) were set up under the Convention to protect rights proclaimed therein. The United Kingdom played a major role in developing the treaty. It was one of the original parties in 1950 and, on ratifying, undertook an international
* Barrister, 20 Essex Street; Fellow of Somerville College, Oxford. I am very grateful to Stephen Males, Q.C., and Richard Plender, Q.C., for comments on an earlier draft.
1. See, e.g., Scarth
v. United Kingdom
(Application 33745/96) 22 July 1999, small claims arbitration in the County Court (no longer existing under the Civil Procedure Rules) was found to be in breach of Art. 6 of the Convention by the European Court of Human Rights.
2. The Commission was abolished on 1 November 1998, its function being subsumed within the court.
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