Arbitrator’s Impartiality and Independence under the European Convention on Human Rights: Lessons from Beg v. Italy?

The European Court of Human Rights (ECtHR) has recently issued a judgment on a question of applicability of the standards of fair trial under Article 6 of the European Convention on Human Rights (ECHR) to arbitral proceedings. Even though the judgment prima facie suggests that the provision in question should be applied to arbitration with a certain degree of flexibility, the judgment is in fact based on a strict interpretation of fair trial that does not take into account the differences between arbitral and court proceedings. Furthermore, the judgment is made more problematic and debatable by the fact that the ECtHR left a number of questions open, in particular with regard to the relationship between domestic courts and arbitral tribunal and the extent of the duties of impartiality and independence of arbitrators in case of voluntary arbitral proceedings. In light of these considerations, this article provides a critique of the ECtHR’s judgment in the recent Beg v. Italy case, arguing that the Court did not take into account the variety of legal cultures in the system of the Council of Europe and the lack of a European concept of commercial arbitration, and instead tried to adopt a top-down approach to the definition of key concepts of arbitration that, rather than clarify things for parties and practitioners, adds layers of uncertainty as to the extent of the duties of impartiality and independence of arbitrators under the ECHR.