JILT 2004 (1) - Susan Schiavetta
The Relationship Between e-ADR and Article 6 of the European Convention of Human Rights Pursuant to the Case Law of the European Court of Human Rights
Susan Schiavetta
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Download | ADR with E-mail Feature | ADR with multiple Internet feature such as Payment, Document, Submission and Email | ODR conducted entirely over Internet, no face to face |
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| Courtroom agendas listed online | Multiple court activities online such as claim forms as well as Judgments of the court | Online Trials |
In this sense ODR procedures are not sui generis concepts, but a transfer of techniques that occur in the offline environment to the online one. Of course there are some ODR procedures that do not have offline equivalents per se, such as e-ADR procedures like automated negotiation and facilitated negotiation. With automated negotiation the disputants use a software programme to settle their monetary dispute. Firstly they enter settlement figures and once the amounts come within certain proximity of each other, say twenty per cent, the claim is settled midpoint. The software used in facilitated negotiation on the other hand is not programmed to reach a settlement, but rather the disputants are provided with a web platform and ICT tools for the purpose of facilitating a resolution.
Despite the lack of an offline alternative these procedures are still underpinned by concepts that transpired from information on ADR. For instance the use of artificial intelligence like Expert Systems and Solution Set Databases to assist legal problem solving can and have be used by professionals in the ADR field, which can be likened to the role of automated negotiations systems. Similarly negotiation often takes place offline within the confines of an office and the disputants will have previously used ICT such as e-mail beforehand, and so again the resolution process mimics an offline ADR procedure to a certain extent.
Accordingly, instead of focusing on the problems that transpire in this particular context, lessons drawn from the traditional arena help with the development of ODR methods like e-ADR. [8] Such an approach is realistic seeing that it is the means used to deliver the service that has changed, not the theory underlying it. Of course it can be argued that e-ADR does not always play the same role as ADR because often the disputants do not have any other choice but to utilise e-ADR to resolve their dispute, for example because of the cross border nature of the dispute. However all that has really changed is the disputant’s ability to access justice. Indeed if e-ADR was not available as a source of dispute resolution the disputants would still have a dispute that they would like to resolve but they would choose to ‘lump it’ as opposed to activating another form of dispute resolution. Thus, in line with the principle of functional equivalence, which suggests that the same standards should apply regardless of whether the services are delivered offline or not, [9] legislative initiatives, case law, and codes of conduct that set procedural standards for ADR procedures should also affect e-ADR.
Again, even those e-ADR systems that are novel versions of original ADR systems or represent a new paradigm of ADR are subject to ADR rules as they still fulfil an ADR function. They may not fall within the scope of subject specific legislation such as arbitration legislation but they will be covered by those regulations that apply more generally to ADR, such as the EC Recommendations applicable to bodies responsible for the out-of-court settlement of consumer disputes [10] and the E-commerce Guidelines produced by the Organisation for Economic Co-operation and Development (OECD). [11] Indeed disputants utilising such e-ADR systems are still entitled to procedural protection.
In view of this the standards established by the ECrtHR pursuant to Article 6 of the ECHR in respect of ADR are clearly applicable to all e-ADR systems. [12] Above all they have relevance for the way in which e-ADR should be regulated at national level. Many other supranational and international instruments, like the aforementioned Recommendations and OECD Guidelines, have the potential to impact on the regulation and operation of e-ADR but these are non-binding. By contrast the deliberations of the ECrtHR produce more binding effects because States can be held liable to pay ‘just satisfaction’ under Article 50 of the ECHR. This involves the State reimbursing the applicants costs and expenses and possibly paying compensation for pecuniary and non-pecuniary damage. Whilst this possible liability is undoubtedly a deterrent the real sanction may in fact be the public finding that a State is in breach of the ECHR. Additionally contracting States wishing to remain a party to the ECHR must invariably respond to adverse decisions and awards by realigning their legislation. Such an approach is therefore very beneficial to an industry that can facilitate access to justice and is still in its infancy stages.
Furthermore, since the standards set by the ECrtHR are set at an international level, problems with jurisdictional overlap are eliminated, at least between those States signatory to the ECHR. Although this article does not focus on this latter problem it is worth mentioning that the regulation of e-ADR is more efficient at an international and regional level because of its inherently cross-border dimension.
‘[(1)] 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 […]’. [13]
Of all the Articles found in the ECHR, Article 6 is by far the most frequently invoked, which is primarily attributable to the gravity of the right. [14] Coming after the obligation to respect human rights in general (Article 1), the right to life (Article 2), the prohibition on torture (Article 3), slavery and forced labour (Article 4), and the right to liberty and security (Article 5), the prominent position given to the right to a fair trial is symbolic of its value in upholding a democratic society. In light of this it has been established that there is no justification for interpreting Article 6 restrictively. [15] Yet, the ability to analyse Article 6 is constrained by the fact that the ECrtHR is not an appeal court but a review court. Under the quatrième instance doctrine (the fourth instance doctrine) the ECrtHR will not question the merits of a decision taken on the facts at a national level, rather the ECrtHR will only examine whether the obligations inherent in Article 6 have been met. [16]
Given the importance attached to the right to a fair trial if court action is ever substituted with ADR it is important to establish that this does not result in a breach of the ECHR. In a similar vein where the substitution involves an e-ADR procedure the ECHR must not be violated as a consequence.
3.1 Defining Civil Rights and Obligations
When reviewing a case involving a non-criminal dispute, the ECrtHR must first determine whether the case deals with civil rights and obligations. Essentially, in line with the ECrtHR’s approach to defining other legal terms in the ECHR, an autonomous Convention meaning has been assigned to the concept of civil rights and obligations. As a consequence each case is judged on its individual merits and the interpretation given is not always commensurate with the applicant’s national law. [17]
The most important judgment of the ECrtHR in relation to the civil aspect of Article 6 stems from the Golder v. United Kingdom case, as it defined the significance of the right. [18] Golder was a convicted felon who was suspected by prison staff and police to have assaulted a prison officer during a disturbance. After an assessment of the various statements made by prison officers no charges were brought against Golder, but the accusation was recorded in his file. Consequently Golder addressed a petition to the Home Secretary requesting a transfer and a meeting with his lawyer with a view to bringing an action for libel, but his request was refused.
Two complaints were submitted by Golder to the then operative European Commission of Human Rights (Commission). [19] The first complaint related to the letters stopped by the Governor and was declared inadmissible because Golder had failed to exhaust his domestic remedies. In contrast, the second application, which referred to Golder’s inability to consult a lawyer, was declared admissible.
Unanimously, the Commission found in favour of Golder stating that Article 6(1) guaranteed a right of access to the courts, and this had been breached when Golder was refused access to his lawyer. Whether Golder would have continued with a lawsuit after consulting his lawyer was thus irrelevant; the mere indication of intent to sue was enough. The UK denied that such a right existed under Article 6(1) and so the case proceeded to the ECrtHR. Agreeing with the deliberations of the Commission, the Court held by nine votes to three that the Home Secretary’s refusal was contrary to Article 6(1) because the Article covered both the conduct of proceedings once they had been initiated and the right to initiate them in the first place. [20]
Seeing that the rule of law would be rendered superfluous if there was no actual access to the courts, it was thought that the ability to gain access had to be an intrinsic part of Article 6. The lack of explicit reference to the right of access was merely illustrative of the fact that such a right had been entrenched in society for so long that there was no need to guarantee it further. Indeed, the ability to submit a civil claim to court is internationally recognised as a fundamental principle of law, and as such the Convention does not just presuppose the existence of courts but also the existence of the right to access courts in civil matters as without this right no civil court could begin to operate. [21]
Article 6 can be considered as a contentious right since there are no defined limits and those rights that are regarded as essential to a fair hearing can be easily appended whether listed in Article 6 or not. Essentially this allows the ECrtHR to decide if a fair hearing has taken place when the proceedings are taken as a whole. [22] When dealing with criminal cases the Court can look to Articles 6(2) and (3) for support since they enhance the application of Article 6(1). In a civil law context however, whilst the principles embodied in Article 6(3) are relevant, i.e. the right be informed promptly in a language which the individual understands, the right to adequate time and facilities for preparatory purposes, the right to legal assistance of his own choosing or legal aid when so required and the right to examine or cross examine witnesses against him, the extent to which they apply is considerably limited. [23]
Over the years the ECrtHR has established a number of principles which must be considered when evaluating whether a hearing has been fair. Above all the ‘equality of arms’ doctrine seeks to ensure that every party to a hearing has a reasonable opportunity to present their case under conditions which do not place them at a substantial disadvantage vis-à-vis their opponent. [24]
3.4 Specific Rights held in Article 6
In deciding whether an individual has had a fair trial, it is necessary to examine the proceedings in light of the other three main elements of Article 6(1). These elements are the right to a public hearing, the right to a trial within reasonable time, and the right to independent and impartial tribunal established by law. Certainly the realisation of each of these elements is fundamental to ensuring that right to a fair trial has been achieved.
The obligation to ensure a public hearing can cover two things, the entitlement to a public hearing as explicitly provided for in Article 6(1), and the implied right to provide an oral hearing. With regards to the former, signatory States must ensure that hearings can be subject to public scrutiny so as to maintain public confidence in the courts. There is no requirement that the press be informed of the hearing or that it is listed anywhere, just that they are not excluded. [25] Article 6 specifically outlines the situations in which the application of this right can be restricted. [26] When dealing with oral hearings, in criminal cases this right is very specific but in relation to civil cases again the right is considerably narrower. Only under certain circumstances will an individual in a civil case need to be present. Thus, it will be sufficient that the party is represented by their lawyer. [27] An individual can waive his right to an oral hearing entirely but the waiver must be done in an unambiguous manner and substituted by safeguards that are proportionate to its importance. [28]
With regard to the right to trial within reasonable time, this operates to ensure that all parties to court proceedings, whether criminal or civil, are protected from excessive delays. As the English maxim states, justice delayed is justice denied. Consequently, States have been held responsible for delays in a number of cases, for example, delays stemming from long drawn out hearings or a lack of co-ordination between administrative authorities. [29]
The intricacies of the right to an independent and impartial tribunal established by law have been elucidated by the ECrtHR through a number of cases. First and foremost the ECrtHR stated in Le Compte, Van Leuven and De Meyere v. Belgium that to be a tribunal ‘established by law’ it would have to be set up by a legal instrument, such as a constitution. [30] Once a tribunal has been created it would be ‘[c]haracterised [by] its judicial function, that is to say determining matters within its competence’. [31] A very important aspect of a tribunal is that it must be able to make legally binding decisions that are enforceable, as opposed to merely making recommendations or giving advice that can be departed from at anytime. [32] Here the idea is that the right to a fair trial will not be lost if the possibility still exists to go to a court that can realise the objectives of Article 6. As such, only once the right to a fair trial has been invoked in front of a tribunal that makes a determination that is enforceable against the parties will systems have to be in place that guarantee the rights found in Article 6.
To be independent the tribunal must be independent of Parliament, the Executive and the parties involved. [33] In ascertaining a tribunal’s independence the ECrtHR stated in Campbell and Fell v. United Kingdom that regard must be had to the manner in which a tribunal’s members have been appointed, the duration of their term of office, and the existence of guarantees against outside pressures. [34] Impartiality must be secured from both a subjective and objective point of view. Subjective guarantees stem from the personal conviction of the third party in a particular case, which can be achieved by allowing the parties to question the impartiality of the judge. In such circumstances impartiality is presumed unless there is evidence to the contrary. [35] To satisfy the objective test sufficient assurances must be offered as to their impartiality. Thus, in addition to permitting challenges, judges are obligated to disqualify themselves if they believe themselves to be unfit to hear a case due to bias and, moreover, if they fail to do so the judgment becomes voidable and can be set aside. [36] Clearly there is a functional relationship between a tribunal’s impartiality and independence, as a tribunal cannot be impartial if it is not independent. [37]
4. Article 6 and Voluntary ADR
Usually private sector ADR operates in a largely unregulated context and consequently it does not benefit from the long established institutional safeguards that define judicial systems. [38] This is primarily because the vast majority of ADR procedures are non-binding in nature and so are often not subjected to regulation by the State because the parties still have the ability to go to court on a de novo basis. Thus in many cases it will be up to the ADR Provider to establish the rules, which the third parties must adhere to. A self-regulatory approach works because private systems will have to meet basic standards of justice if they want their users to have faith in them. Indeed disputants will not opt for alternatives to the court if they are not confident that the system is fair. Accordingly ADR Providers using non-binding procedures do generally adhere to procedural regulations proposed by professional associations or codes of conduct so as to affirm to potential users that they operate fair procedures.
For those procedures which are binding in nature and affect the parties’ ability to go to court de novo the need for procedural guarantees is more significant as their use has graver consequences. Hence governments must find ways to ensure that binding ADR systems operating within the private arena conform to due process principles. [39] When grappling with Article 6 the ECrtHR has established a number of principles in respect of binding ADR procedures that have been entered into voluntarily which gives some indication as to the role of States and how such procedures should operate.
More often than not the subject matter of a case involving a voluntary ADR scheme will concern the determination of civil rights and obligations. Hence the proceedings will typically fall within the scope of Article 6 and the ECrtHR will have jurisdiction. Indeed, the ability to recover any sums awarded is a civil right, and where court proceedings are launched to set aside or enforce such an award, the outcome will be determinative of that right. [40]
The earliest case to have an impact on the courts approach to voluntary ADR was Deweer v. Belgium . [41] Although this particular case involved criminal law, it set an important standard for civil law cases as well. Mr. Deweer was a Belgian butcher who had failed to reduce his selling prices on consumer beef and pig meat in accordance with those dictated by a Decree. Subsequently a quasi-criminal charge was brought against him requesting that he pay a fine by way of settlement or, alternatively, face criminal charges and the closure of his shop. To save his business Mr. Deweer paid the settlement and then claimed a breach of Article 6.
The Court held that by paying the fine Mr. Deweer had effectively waived his right to have his case settled by a tribunal. Moreover ‘[a] waiver of this kind is frequently encountered both in civil matters, notably in the shape of arbitration clauses in contracts, and in criminal matters in the shape, inter alia, of fines paid by way of composition. The waiver, which has undeniable advantages for the individual concerned, as well as for the administration of justice, does not in principle offend against the Convention. [However] in a democratic society too great an importance attaches to the “right to a court” for its benefit to be forfeited solely by the reason of the fact that an individual is a party to a settlement reached in the course of a procedure ancillary to court proceedings’. [42]
In Mr. Deweer’s case he had only waived the procedural guarantees afforded to him by Article 6 because he feared the closure of his shop as well as the resulting negative effects. [43] Accordingly, Mr. Deweer’s waiver was ‘[t]ainted by constraint’ and Article 6(1) had been breached as a result. [44] Consistent with this ruling it was held in X v. Federal Republic of Germany that entering into an arbitration agreement only amounted to a partial renunciation of rights contained in Article 6 and moreover such a waiver must be done freely and in an unequivocal manner. [45]
4.1Waiving the Specific Rights Enshrined in Article 6(1)
When the parties voluntarily agree to use private binding ADR procedures the tribunal hearing the case will not have been directly ‘established by law’ per se. Rather via legislation States will have given them permission to replace the jurisdiction of the courts. In this sense the tribunals are exercising a public function only in private. This does not necessarily mean that the tribunal is a public authority whilst exercising its public function, just that tribunals can only carry out their activities within the conditions laid down by the State because they are prima facie acting in a way that is contrary to public policy. [46]
With regard to the right to a public hearing the Commission held in Axelsson and Others v. Sweden that the applicant’s dispute did not demand public scrutiny, and thus an arbitration clause in their membership agreement with a taxi licensing authority was not unreasonable. Consequently the applicants had given up their rights under Article 6 when they entered into the membership agreement even though it was compulsory for them to do so to get a taxi license. [47] Such an approach implies that since it was not compulsory for Axelsson et al to operate as taxi drivers, they had effectively renounced their rights to go to court when they chose to apply for a permit. [48] Generally therefore individuals can waive their right to a public hearing, and where an applicant fails to request a public hearing this qualifies as an unequivocal waiver of this right. [49] Such waivers are typical in ADR proceedings since the very purpose is often to avoid publicity. [50]
In the context of the right to an independent and impartial tribunal the ECrtHR held in Suovaniemi and Others v. Finland that waivers are allowed with respect to certain rights but not with others and that in order to assess whether a waiver was permitted, distinctions would have to be drawn between the different rights guaranteed, and analysed according to the peculiarities of each case. [51] Such an approach is in line with the aforementioned X v. Republic of Germany case, which stated that a waiver only amounted to a ‘partial’ renunciation of the rights found in Article 6. [52] Thus, the ability to waive the right to an independent and impartial tribunal may not be that straight forward, particularly as it is one of the most important rights. [53]
The applicants in Suovaniemi had allowed an arbitrator to remain on the tribunal after questioning his impartiality, and when more evidence surfaced which called his impartiality into question for a second time they refrained from expressing their reservations. Accordingly a waiver was sanctioned in this case because the applicants had explicitly accepted the panellist’s possible partiality when they continued to participate in the proceedings. [54] This is a similar idea to the ‘statutory waiver’ whereby late objections are barred where ample time existed to raise them either before or during the proceedings.
Suovaniemi also established that waivers must be supported by minimum procedural guarantees commensurate to the importance of the rights waived. This is supported by the Jakob Boss Sohne KG v. Germany ruling, which had previously affirmed that such procedural guarantees would be realised by courts supervising and enforcing arbitral awards. [55] In particular courts must ensure that ADR proceedings were in accordance with fundamental rights, especially the right to be heard.
Controversially the Nordström-Janzen and Nordström-Lehtinen v. Netherlands case took a very different approach to Suovaniemi and Jakob outlining that the ECHR does not require national courts to ensure that arbitration proceedings are consistent with Article 6. [56] Whereas this ruling indicates that no duty is placed on States to put judicial mechanisms in place for ensuring that binding ADR procedures comply with Article 6, this decision was taken by the Commission as opposed to the ECrtHR, and it is the decisions of the Court that carry more weight. [57] In addition, the Convention is fluid and develops with time and circumstance and since the Suovaniemi ruling is the most recent decision it reflects the contemporary interpretation of the Convention. [58]
By and large therefore individuals may waive their Article 6 rights voluntarily but, because of the binding nature of the procedure they avail themselves of, it is essential that some guarantees exist in respect of ensuring due process. Therefore as long as a waiver was supported by minimum guarantees proportionate to its importance it would be permitted. As was stated in Deweer, the right to a fair trial is far too important for its benefits to be forfeited purely because of a waiver. [59] Hence sufficient safeguards must be in place because ADR is only an improvement over court action where similar guarantees of fairness are offered. [60]
Thus States are obligated to ensure that procedural safeguards are in place so that waivers are effective. A claim against a State could in theory occur for failure to provide adequate procedural safeguards. In particular, where a State has an obligation to put safeguards in place and fails to do so, it could be held liable to pay damages if, as a consequence of this, the ADR Provider does not provide a fair and correct procedure. Likewise, if the ADR procedure has been regulated by a State, and the fairness and correctness of the proceedings have not been guaranteed at the review/appeal stage, again a State can be legally responsible. For example, if the review procedure does not give the judge the necessary scope to carry out a proper review. In such a situation the State will have still failed to fulfil its duty under the ECHR, even though it had attempted to put a system in place. Ultimately therefore an appropriate review/appeal system must be in place so as to rectify any procedural injustice that may have occurred.
Indeed the rights under the ECHR imbue individuals with very specific rights and if these rights do not have the effect intended the State must be held accountable for its actions. This interpretation is in line with the argument that ECHR does not fit neatly into the dualist theory under international law because it often leads to human rights not being realised. [61] As a result signatory States to the Council of Europe (CoE) should regulate private ADR processes that have binding effects on the parties so that they comply with the standards enunciated pursuant to the case law of the ECrtHR, as this will reduce the risk of States breaching the Convention. [62]
Therefore, not only should legislation make particular procedural rights obligatory but judicial mechanisms must also be integrated into the system to oversee the original process. In particular this will assure participants that they will be protected in the event that procedural safeguards in place for the ADR hearing fail. As was stated in the Jakob case, courts also have a role to play in respect of realising the procedural guarantees found in Article 6. Not only must courts meet the basic standards of justice themselves, but they must guarantee the fairness and correctness by refusing to enforce awards where the procedure leading to the award had not met the basic procedural guarantees.
Most if not all States signatory to the CoE have regulated ADR procedures that are binding on the parties. For instance Section 33 of the English and Welsh Arbitration Act 1996 states that the tribunal shall act fairly and impartially giving each party the opportunity to put his case and dealing with that of his opponent and procedures should be adopted that avoid unnecessary delay or expense. Furthermore, Section 66(1) gives the court the power to enforce an award by summary judgment unless the tribunal lacked substantive jurisdiction, and Section 66(4) deals with the enforcement of an award by an action on award for the breach of the implied term that the award would be honoured. The typical defences to such actions are a lack of jurisdiction, public policy, want of finality, and uncertainty of meaning and time bars. Section 68 allows the parties to challenge an award because of a serious irregularity in the arbitral proceedings such as the failure to comply with Section 33. [63]
Section 69 permits an appeal on point of law if an appeal has the potential to substantially affect the rights of one or more parties, the decision rendered was obviously wrong, or the appeal is of general public importance and the original decision is open to serious doubt, although the parties can agree to exclude the application of this Section by agreement. [64] Rights of appeal from arbitration on points of law are generally quite restricted but this does not conflict with the Jakob and Suovaniemi rulings in that court supervision is only obligatory with respect to checking the procedural correctness of the process and hence appeals on questions of law are not a prerequisite.
4.1.1Summary
It is suggested therefore that whilst it is possible to waive the rights found in Article 6 in favour of ADR it is important that such a waiver is supported by minimum procedural guarantees in order to make it effective. This is particularly true in the context of those rights that are of the utmost importance to implementing the right to a fair trial, such as the right to an independent and impartial tribunal. As such any waiver of the rights found in Article 6 will only ever amount to a partial waiver. Consequently States signatory to the CoE will have to regulate ADR procedures that result in binding awards so as to ensure that these procedural guarantees are implemented. Such regulatory action will also involve States giving the judiciary the responsibility of certifying that such guarantees have in fact been met. So long as the State has an effective system in place to override possible wrongs it will have fulfilled its obligations under the ECHR.
4.2 Article 6 and Compulsory ADR
Whilst entering into a binding ADR process voluntarily poses few problems for ECHR, the situation is different for ADR processes which are compulsory, i.e. required by law. Deriving from the concepts of laissez faire and freedom of contract, ADR processes have historically only required voluntary compliance. However by the beginning of the Nineteenth Century compulsory arbitration became acceptable. Originally it was used for labour disputes, although today it is exploited in many areas of law. For the most part the departure from voluntary systems related to the desire to increase access to justice by redirecting cases to other systems, thereby freeing up court resources. [65]
Given that compulsory ADR systems see the replacement of the court system institutionally with other bodies, the rights stemming from Article 6 must still be guaranteed. Citing the Golder case the ECrtHR held in Deweer that the right of access “[b]y its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals.” Limitations can come in various forms and during implementation States have a certain margin of appreciation. [66]
This very reasoning was applied in the recent case of the Federation of Offshore Workers’ Trade Union v. Norway , wherein the ECrtHR held that the use of compulsory arbitration to prevent strike action was permitted because of pressing societal interests. [67] If workers within the oil and gas industry had been allowed to strike Norway would run into problems with regards to funding its state budget, which would have had repercussions for social security services. Moreover, it would have undermined Norway’s credibility as a gas supplier within the EU as well as having adverse effects on the supply to industry and household users. [68] Hence, the use of compulsory arbitration was proportionate to the legitimate aim.
Thus compulsory ADR is not prohibited under the ECHR. However, since courts administer justice in public and their decisions are open to scrutiny, any decision by the State to substitute a traditionally public hearing with a private ADR one must be regulated. Certainly the essence of the right to a fair trial must not be lost as a consequence and so States have to safeguard the rights embodied in the right to a fair trial once way or another. ADR tribunals executing a public function must therefore fulfil the obligations arising from Article 6 or be supervised by a body that does. Such logic is present in the deliberations of the Commission in Bramelid and Malström v. Sweden . [69]
In the Bramelid case the applicants were forced to sell their shares in a limited company because the Swedish Companies Act 1977 required them to do so where companies, through their subsidiary, owned more than ninety per cent. The Act failed to explain the way in which the share price should be calculated and if a dispute arose over the share price, the matter was to be settled by three arbitrators under the Arbitration Act. [70] Only where there had been a serious irregularity with either the nomination of the arbitrators or the procedure itself could the parties appeal to the Court of First Instance. After a decision was rendered by the tribunal, the applicants complained that they had been obliged to sell their shares at a price lower than their true value by an arbitration tribunal that did not constitute a tribunal within the meaning of Article 6(1) and thus there right to a fair trial had been violated.
The two main questions that surfaced in this case were: had the applicants’ rights under Article 6(1) been respected during the proceedings, and did they have an effective remedy before a national authority for alleged violations of the ECHR. Since the remedy offered by the Arbitration Act was limited in scope it failed to provide the parties with an effective remedy. Accordingly, the Commission focused on the proceedings of the tribunal. In order to assess the tribunal’s adherence to Article 6(1), the tribunal’s independence and impartiality has to be checked, along with whether it was established by law and met the requirements of being fair and public.
In respect of challenging a tribunal’s impartiality, the Commission held that evidence must exist that supports such a claim. As regards independence, it is not enough that the arbitrators were in fact independent but their independence must be capable of validation; ‘[j]ustice must not only be done but be seen to be done’. [71] The arbitrators were deemed to be independent from the State since the Arbitration Act gave them the freedom to assess all the evidence in cases referred to them. However, an imbalance was caused by the fact that the applicants did not appoint their own arbitrator and the opposing party had picked an accountant, and it was no secret that the opponents regularly relied on accountants to defend their interests. In view of this, the requirement for independence had not been met and the Commission held that Article 6 had been breached.
Had an effective appeal procedure been in place which gave full jurisdiction to a court that respected the rights given in Article 6, a breach would not have occurred. [72] Such an approach suggests that States do not have to offer the guarantees found in Article 6 at first instance because this would defeat the purpose of them installing a quicker, cheaper and a less demanding procedure in the first place. Furthermore, the parties will have had the opportunity to secure their rights under Article 6 prior to the exhaustion of domestic remedies. [73] Thus, at first instance the Convention rights do not necessarily have to be adhered to in their entirety so long as there is an appeal process in place that guarantees the rights in Article 6. Obviously, whilst it makes sense for States to sacrifice some rights at first instance, such as the right to a public hearing, it will be compulsory that others, like the right to an independent and impartial tribunal are always secured, otherwise disputants will simply appeal decisions they perceive to be unfair and the States efforts to save money will be defeated.
Such an approach is wholly in line with the ECrtHR’s position in respect of administrative and disciplinary bodies, whereby the Court recognises that in many cases decisions in respect of individuals’ civil right and obligations are often taken by bodies, which do not meet the definition of tribunal according to Article 6. In Albert and Le Compte v. Belgium the Court ruled that the body hearing the case must either meet the requirements of Article 6(1) or be subject to control by a judicial body that does and, what is more, that the said appeal tribunal has full appellate jurisdiction. [74] In fact the ECrtHR has found a number of States to be in breach of the Convention when they have replaced court proceedings with administrative proceedings with insufficient appeal options. [75] Whilst most participants in this process will not appeal because they too want a fast, cheap and less traumatic experience, having the possibility to appeal gives them the assurance that they have a remedy in the event that something goes wrong.
Furthermore in De Cubber v. Belgium it was stated that where a tribunal was not integrated within the standard judicial machinery of a country it was not considered to be ‘[a] court of the classic kind’. In order to be integrated the tribunal must be a proper court in both the formal and the substantive meaning of the term. [76] If a tribunal is considered to be a part of the judicial structure there is no justification for reducing the requirements of Article 6. To be sure, if lower courts did not satisfy Article 6 they would be at a variance with the intention of creating several layers of courts, namely to reinforce the protection of litigants. Thus a restrictive interpretation was not consistent with the object and purpose of the Article operating within its traditional and natural sphere of application. [77] Undoubtedly ADR tribunals like administrative or disciplinary bodies are not courts of the classic kind because they are not a court in the formal substantive meaning of the term. Consequently they ought to be subject to the same rules as administrative or disciplinary bodies.
4.2.1 Analysis of the ECrtHR’s Approach
Whereas the ECrtHR follows a similar line of reasoning with respect to the application of the ECHR to both voluntary and compulsory ADR, it is stricter with respect to compulsory systems because States make the decision to use ADR on behalf of the disputants. Thus when the use of ADR is compulsory it is imperative that the Convention rights can be implemented in their entirety prior to exhaustion. Along with freeing up court resources for more meritorious disputes, steps must therefore be taken to safeguard Article 6, by having the ADR tribunal either offer the rights guaranteed by Article 6 itself or supervised by a body that does. In respect of voluntary proceedings it seems that since Article 6 is so important, the freedom to contract out of the rights found therein is constrained by the desire to ensure that the spirit of Article 6 is preserved, and hence it is important that minimum procedural protections are in place.
4.3 Article 6 and Voluntary e-ADR
Whilst going to court is not a factual possibility for many disputants, e-ADR Providers seem to favour non-binding forms of e-ADR that preserve the ability of the parties to bring a case to court de novo. Such an approach is taken primarily because e-ADR is still in its infancy stages and many Providers feel insecure about the possible legal obstacles with regards to things like enforcement. [78] Nonetheless when binding e-ADR procedures become more emblematic of the dispute resolution techniques utilised online, signatory States to the ECHR will have to ensure that those procedures falling under their jurisdiction are compliant with the rights found therein, as e-ADR procedures are merely online ADR. Indeed, where an individual or a company voluntarily decides to settle their dispute using a binding e-ADR procedure they have also chosen to opt-out of the rights enshrined in Article 6.
Identifying which States govern the various e-ADR Providers and their procedures will be difficult where the providers only have a web presence. However where the actual e-ADR Provider is established will generally not be important, at least when it comes to a States obligations in respect of reviewing the award. For instance when a disputant wishes to seize a court to check the compliance of an e-ADR procedure with national legislation that implements the principles laid down by the ECrtHR jurisdiction will depend on the place where the binding award was delivered. Although there is a lack of physical venue in e-ADR proceedings this is not wholly problematic. In arbitration for example the seat is generally chosen by either the disputants or the arbitrator in accordance with the applicable arbitration rules and law. [79] Alternatively either the date and place where the award was delivered, or the place of establishment of the arbitral institution responsible for delivering the award can be indicative of where the arbitration took place. [80]
Thus when States regulate e-ADR to comply with the deliberations of the ECrtHR they will be regulating any binding procedures that may take place within their jurisdiction in the future, rather than the e-ADR Providers themselves. This is not to say that States cannot regulate the activities of e-ADR Providers within their jurisdiction, for example, if they wanted to ensure that domestic e-ADR Providers published statistics on the awards delivered by their third party neutrals or have an internal appeal system. However regulation of this type would definitely be more difficult to achieve and may give rise to jurisdictional issues. As such it would be better if this type of regulation was achieved at an international level with as many States in agreement as possible.
Consequently e-ADR Providers should also be obliged to offer minimum procedural guarantees where the procedure strips the participants of the right to go to a court de novo. Certainly, if the ECrtHR is ever called upon to explore the applicability of Article 6 to e-ADR it may well hold a State liable for failing to ensure that a particular e-ADR system was regulated appropriately. For instance if an individual has agreed to be bound by the outcome of an electronic-arbitration (e-arbitration) and they wish to question the impartiality of the arbitrator, the court with the jurisdictional rights must be able to scrutinise the challenge properly to check for impartiality and the extent to which an impartiality waiver was acceptable. [81] Thus, e-ADR procedures should also be regulated in the same manner as their offline forms.
Many national legal instruments do just this by, for example, taking into account the use of ICT in drawing up arbitration agreements and awards. [82] Where they do not most countries have laws which permit the conclusion of contracts by electronic means, [83] and accordingly arbitration agreements and awards ought to be either covered by these laws or construed in light of their existence. Likewise where domestic arbitration laws still require arbitration agreements and awards to be signed, national laws generally make provision for the use of digital signatures. [84]
When recognising and enforcing a foreign arbitral award the most important legal instrument is the New York Convention. [85] Article II(2) of the Convention states that the original agreement to arbitrate must be in writing and signed by the parties. Whilst no mention is made of the agreement being recorded by modern electronic means, it does note that an agreement can be formed in an exchange of telegrams. A contemporary interpretation of this may lead to communication methods like e-mail being covered by the Convention as like telegrams e-mails are in text form and provide an electronic record. Indeed, courts have already accepted that faxed copies and telexes are comparable to telegrams. [86] It can be suggested that such an approach is likely because a number of domestic laws relating to arbitration follow the UNCITRAL Model Law on International Commercial Arbitration and therefore define writing as including exchanges of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement. [87]
When accepting the validity of click wrap agreements it may be necessary to rely on the first alternative in Article II(2), i.e. the need for an in writing and signed document, rather than comparing click wrap agreements with an exchange of telegrams. This is primarily because a final contractual agreement is formed after clicking the accept button. Whilst the resulting document would not be signed again national laws generally make provision for the use of digital signatures.
Unfortunately it may be that national laws are not applicable during the recognition and enforcement of foreign e-awards anyway, because the New York Convention must be applied uniformly. In such a situation as long as there is divergence between national laws the exact position of the New York Convention is ambiguous. [88] Moreover, the formal requirements of arbitration agreement ought to be assessed by reference to Article II(2) of the Convention only as opposed to looking to national law for guidance. [89]
A possible loophole in applying the Convention according to the rules found therein may lie in Article VII(1) - the Most Favourable National Enforcement rule, which states that the Convention shall not deprive any interested party of any right they may have to avail themselves of an arbitral award in the manner and to the extent allowed by the law or the treaties of the country where such award is sought to be relied upon. Hitherto this Article has only been interpreted to permit enforcement of an already annulled award where the laws in the country where enforcement is sought are more liberal than that of the New York Convention. [90] However it may be possible to rely on it to have an e-award enforced, particularly since the purpose of the Convention is to facilitate the recognition and enforcement of arbitral awards. [91] Indeed the rationale for including this rule seems to be based on making the enforcement of awards in the greatest number of cases possible. [92]
Although it can be suggested that this Article does not mention arbitration agreements and as such it does not give a party wishing to have an e-award recognised the ability to rely on national laws that permit the formation of e-agreements van den Berg (1981) suggests that this omission is unintentional. He notes that since Article VII(2) specifically abrogates the Geneva Protocol on Arbitration Clauses of 1923, matters covered by this Protocol can be viewed as falling within the scope of the Most Favourable National Enforcement rule and hence it also applies to agreements. Furthermore, it would be unusual if a referral to arbitration under Article II(3) could be rejected for not fulfilling the requirements of Article II(2) but an award based on the same agreement could be enforced. [93]
Recognising the need for modernising the Convention UNCITRAL has proposed that an interpretative instrument could be drafted and used by States during their implementation of the Convention. Such an instrument would recommend that the definition of the term “[i]n writing” be interpreted so as to include electronic processes. [94] This instrument would be drafted in accordance with a revised version of Article 7 of the UNCITRAL Model Law on International Commercial Arbitration. Since this interpretative instrument has still to come to pass it remains to be seen whether Article II(2) will be interpreted to cover agreements formed by e-mail, and more to the point website communications, such as click wrap.
Similar issues exist in respect of the arbitral award as this must be signed by the majority of the arbitrators and a party seeking enforcement must provide the court with either a duly authenticated original or a certified copy thereof. Again this need for a signature may be a source of uncertainty where States do not recognise electronic signatures or are unwilling to accept the third party authentication of such signatures, and/or courts do no interpret the New York Convention according to national law. [95]
Even if the electronic creation and signing of arbitral agreements and awards is permitted under the New York Convention, there are however still some remaining obstacles as regards the storage, ratification and deposit of electronic documents. With respect to storage it must be possible to ensure that the agreements/awards can be admissible as evidence. As long as technology is used which permits long lasting compatibility that eliminates the possibility of alterations then such problems should be surmounted. [96] The low level of computerisation of courts may frustrate the depositing and ratification of the award. In many cases a system of electronic registration will be necessary so as to permit the archiving of awards and the electronic signature of the judge. Thus the development of electronic justice will have to develop in conjunction with e-arbitration. [97]
Where the conclusion of binding e-ADR procedures, like e-arbitration is permitted under national law, States should avoid breaching the ECHR as courts ought to judge the procedures in the same way as they would offline ones. In the event that national legislation in CoE States does not cater for e-ADR versions of the ADR service they are potentially contravening the ECHR as e-ADR systems falling within their jurisdiction would not be obligated to comply with the relevant legislation. For instance States that have legislation relating to ADR procedures like arbitration that do not cover online arbitrations may be held liable for breaching the ECHR. Moreover, the courts would not be able to use national legislation to enforce and subsequently check e-awards as courts are not there to legislate or make policy but to enforce the existing law. [98]
It is also advisable that States legislate for those binding e-ADR procedures that are either novel versions or constitute a new paradigm of ADR so as to avoid a violation of the ECHR. An example of such an e-ADR procedure would be Binding Evaluation, wherein the third party makes an evaluation that is potentially binding on the disputants. Traditionally evaluation procedures are non-binding for both parties, but in the online context the third party makes a determination in the form of advice which is binding on the Company. This type of procedure is currently employed by the e-ADR Provider Online Confidence. [99]
Likewise the ambiguity surrounding enforcement under the New York Convention gives incentive to States to either seek modernisation of the system or draw up bilateral/multilateral treaties. In particular the duties under the ECHR apply if a party seeks enforcement in a CoE State via the New York Convention. For those CoE States also signatory to the EU such a system could find a legal base in Article 293 of the Treaty Establishing the European Community which states that Member States must enter into negotiations with each other with a view to securing the simplification of formalities governing the reciprocal recognition and enforcement of arbitration awards, which would cover e-awards. [100]
Since the use of binding e-ADR is limited at the moment, the problems associated with the technological neutrality of standard-setting legislation are of minor importance. However, the status quo merely frustrates the development of e-ADR and potentially invokes a breach of the ECHR where it could be avoided. Thus, States should seek to eradicate any legal obstacles so as to ensure that both imprudent violations are avoided and that the growth of e-ADR is fostered.
An important point in this context is the role of courts in reviewing e-ADR decisions. First and foremost courts must comply with Article 6 themselves when exercising a supervisory or enforcement function. [101] Thus reviews and challenges of binding ADR awards should be made in public. Of course disputants can also waive their right to a public review and as such submit to a documents-only procedure operated by the court or have their lawyer represent them alone. However this will involve scarce resources such as time and money into the resolution process that the disputants originally sought to avoid by opting for e-ADR in the first place. Accordingly it would often be unrealistic for a participant in an e-ADR process to have a decision reviewed offline.
One revolutionary solution might be to install an online review and appeal system. [102] Such a system should be carried out by cybercourts that are controlled by States so as to comply with Article 6 as far as possible. This would give the participants the ability to have the procedure checked for procedural fairness and correctness by a court. Again jurisdiction would lie with the courts that had the same nationality as the resulting award. Whilst an online system would be sufficient for the majority, some participants however may still require a traditional public hearing. As such online appeals ought to operate as an extra tier that functioned in between the original decision rendered and the final offline review/appeal stage. Moreover, the use of online systems would have to be activated after the original e-ADR hearing so as to avoid allegations of delaying access and the implementation of Article 6. Of course until conferencing techniques, and in particular web conferencing, become more exploited within judicial systems it is unlikely that this procedure would happen in the near future. Nonetheless it serves to emphasise that the problems encountered at the moment may be overcome in the future by modern solutions.
4.3.1Validity
It should also be considered here that the relevance of Article 6 to ADR and e-ADR procedures also depends on whether the subject-matter of the dispute is capable of being put to binding alternatives in the first place. For instance, pre-dispute e-/ADR clauses that bind the consumer are often restricted or completely forbidden and so the ability to opt out of a court hearing could be constrained by national or supranational legislation. [103] In such cases Article 6 would still be applicable, but to the determination made by the Court as opposed to the e-ADR proceedings. However, since the ECrtHR is a review court, in the event that the applicant agreed to use ADR where national law prohibited them from doing so and the ECrtHR had to analyse the legality of a waiver, the focus would still be on whether the applicant entered into the ADR voluntarily and if the appropriate procedural safeguards were met rather than enforcing the respective national law. [104]
4.3.2 Current e-ADR Systems
As noted the majority of e-ADR Providers operating at the moment do not use binding procedures and thus the right to go to court de novo is not lost. In particular many European based e-ADR Providers offer services that do not invoke compliance with Article 6 of the ECHR. Despite this it is in the best interests of these e-ADR Providers that their services guarantee that the basic standards of justice are observed. Indeed, disputants still have the option to go to court de novo they will not opt for an alternative process that does guarantee fairness and resource savings. To help maintain their position in the market therefore e-ADR Providers could, amongst other things, offer users similar procedural guarantees to those they would receive in the offline world. This is particularly important for those e-ADR Providers that do not benefit from external financing.
Procedural guarantees like right to an independent and impartial third party and the rights to have the dispute settled within a reasonable time will always be important to any dispute resolution service. As such e-ADR Providers must integrate these concepts into their rules. The relevance of the public hearing is diminished because again the idea behind ADR and thus e-ADR is to have a private resolution. Likewise an appeal or review system will not be necessary because the outcome is non-binding and the disputants have the opportunity to either opt for another e-ADR service, an ADR service or go to court.
Some systems operating at the moment however do demand compliance; in particular those trustmark systems that involve Trustmark Providers using e-ADR systems to support the operation of their trustmark, or e-ADR Providers using a trustmark to support the operation of their e-ADR service. Such systems are either unilaterally binding i.e. they only bind the stronger party that has subscribed to the trustmark, or they are binding on both parties because both subscribe to the same trustmark. Businesses subscribe to a trustmark to legitimate its dealing and instil trust. In the event of a dispute the Provider that assigned the trustmark steps in to resolve it. Where a business bearing a trustmark fails to comply with the decision of the Provider the trustmark is revoked. Contractual liability clauses can also be generated in favour of the Provider in the event that the trustmark holder breaches any payment obligations that have arisen out of an e-ADR decision.
In view of the fact that the businesses subscribing to the Trustmark agree to be bound by the decision they voluntarily waive their right to a fair trial under Article 6. Thus the procedures used by the e-ADR Providers should offer minimum procedural guarantees proportionate to their importance as outlined in Suovaniemi. An example of a unilaterally binding system in Europe is Online Confidence which offers a number of ADR services in correlation with a Business to Consumer (B2C) e-commerce trustmark. Although not available to the public as of this writing, when its doors do open to the public it must comply with Article 6 in respect of those Evaluations that involve a monetary amount of €5000, as the ‘Advice’ rendered by an Evaluator will be unilaterally binding on the trustmark holder. [105] Naturally if the consumer is not happy with the Advice they can reject it and file a court action and once the consumer rejects the Advice this also allows the business to file a court action. The business also has the opportunity to refuse to reject the Advice where it relates to a monetary amount of more than €5000.
According to the rules of Online Confidence the third party must be impartial and independent, [106] and the company waives their right to a public hearing when they subscribe to the trustmark, [107] although an oral hearing can be held by teleconference, videoconference and web conference if deemed appropriate. [108] Hence the procedure itself is in compliance with the standards enunciated by the ECrtHR. Unfortunately there is no review or appeal procedure available because binding evaluation has yet to be regulated by States in the same way as other procedures that result in binding results, such as arbitration. This can be problematic for companies using the Online Confidence trustmark when the dispute deals with a monetary amount less than €5000, because the only chance to adhere to Article 6 for the benefit of the company will be during the procedure itself, that is, unless the consumer takes the issue to court. If the company does not believe that the rules in respect of, for example, the impartiality and independence of the Evaluator have been respected and the consumer accepts the Advice rendered, the inability of the company to appeal the outcome in a court may be in breach of the standard outlined in Jakob.
However, since companies utilising Online Confidence are contractually bound to comply with any binding decision rendered, in the event that they believe the Advice to be invalid on the basis that relevant procedural guarantees were not met they can choose to ignore the award, as Online Confidence would launch court proceedings for breach of contract. Thus during this stage the relevant procedural guarantees would be met because the judge could refuse to enforce the contract on the basis that Online Confidence had not acted in accordance with its rules, namely the third party was not independent and impartial. [109]
If this type of binding Evaluation was regulated in the same way as arbitration the ‘nationality’ of the Advice rendered would determine which country would be responsible for ensuring that the relevant procedural safeguards were met. At the moment, the Advice given by Online Confidence can only be enforced by means of a breach of contract lawsuit. A mediation clause is embedded in the Trustmark holder’s contract with Online Confidence to go to the Centre for Effective Dispute Resolution in London in the event of a dispute. Where a solution cannot be reached the applicable court will be set by the contract between the company and Online Confidence. If the company is based in a country in which Online Confidence has a secretariat (Italy, Germany, Spain or Belgium) then the jurisdiction designated will correspond to this. Failing that the default jurisdiction will be Belgium. [110]
If the breach of contract lawsuit was considered to be an insufficient court procedure to ensure procedural fairness the courts would have to play a role in supervising and enforcing the Advice via enforcement proceedings. This would be a similar procedure to enforcement proceedings for arbitral awards. Consequently if the unilaterally binding Advice was delivered in a State signatory to the ECHR this State would be responsible for ensuring that the relevant procedural safeguards were in place. So long as States do not regulate this unilaterally binding ADR procedure the company will not be able to call upon the courts in the responsible CoE State to check the compliance of the procedure with Article 6 and hence the company will have exhausted all their domestic remedies. States could therefore be held liable for failing to ensure that this procedure complied with the right to a fair trial and the principles enunciated by the ECrtHR.
Over and above trustmark systems, there are a number of other e-ADR services that result in binding outcomes. For example automated negotiation services result in binding decisions for both parties, albeit in the form of settlement agreements rather than arbitral awards. Hence those European e-ADR Providers, like the UK based Wecansettle.com, that use automated negotiation should technically comply with Article 6. However automated negotiation only leads to a renunciation of the Article 6 rights when the software has produced a final decision. Thus the participants can take their case to court de novo during the binding process and it is only once a settlement has been reached that it is considered binding on the parties. [111] There are no rights of appeal against the decision once it has been made, because, unlike an arbitral award, the final outcome cannot be executed in the same way as a court judgment, but rather the participants must go to court claiming a breach of contract and the ensuing court order would then have to be executed. As such if the participants do not perceive the automated negotiation procedure to be fair they have to act on this before the bidding procedure is completed.
Where the participants fail to act prior to an agreement being reached, in a similar vein to the Suovaniemi ruling and statutory waivers, they will be deemed to have unequivocally waived their rights under Article 6. By allowing the limitation period to expire the parties have explicitly accepted the waiver. Moreover, since this system is automated questions relating to independence and impartiality are not relevant; although automated negotiation Providers will still have to give the disputants an equal opportunity to make bids. Even if a problem relating to the independence and impartiality of the service could arise, a support system may again be found via a breach of contract claim.
Arbitration-based dispute resolution procedures offered for the resolution of domain name disputes also operate a system similar to the statutory waiver. For instance, Nominet, the registry for the .uk domain, uses a dispute resolution procedure that binds the parties in the event that neither party has chosen to go to court before or after a decision has been rendered. Once a decision has been communicated to the parties each party has five days within which to make an internal appeal. Where they fail to activate this they have a further five days to file a court action. Only when neither party decides to appeal or bring proceedings in a court afresh within the ten day limitation period will the decision be final and binding. In the event that they do choose to appeal internally and they are still not satisfied with the decision they have ten days from the date on which the appeal decision was rendered to take the case to court. [112] If court action is launched Nominet will not implement the decision rendered by the Panellist unless the receive evidence that the disputants have reached a settlement or that such proceedings have been dismissed, withdrawn or otherwise unsuccessful. [113]
If the participants have reservations about the fairness and correctness of the proceedings they must override them by launching a court action before the limitation period expires otherwise they will have unequivocally waived their Article 6 rights. [114] Unfortunately a breach of contract lawsuit is not an option here to secure compliance since the enforcement of decisions by domain name dispute resolution providers is carried out by registrars and country-code registries. Once a decision has been rendered the necessary amendments to the Domain Name System (DNS) Records in the Top Level Domain Name Servers take effect. This is the ultimate enforcement tool, as the root zone, of which the Domain Name Servers are an intrinsic part, determines which domain names will be visible in cyberspace with or without the consent of the losing party. [115]
This complete loss of rights is particularly controversial seeing that it occurs as a consequence of not activating them during a period of time that can only be considered as very short. Above all, this approach to domain name resolution results in a shift in procedural advantage, which inadvertently hampers individuals activating their rights in the first place. As Thornberg (2000) notes when a trademark holder files a complaint they have very few procedural hurdles to overcome in contrast to litigation and the respondent has very little time to prepare a response to the complaint. If the respondent wishes to challenge a decision reached by an arbitrator they are the one to incur the burden of filing a lawsuit. Under normal circumstances it would be the trademark holder that would file a lawsuit to get a domain name back. [116] Consequently even though this system still allows both the complainant and the respondent the opportunity to go to court, it is inherently unfair for the respondent because access to justice is impeded. In addition, the domain name registrant has no choice but to accept such a system and hence the idea of freedom of contract without constraint is illusory.
However as already noted in Axelsson and Others v. Sweden the Commission held that even though it was compulsory for the applicants to accept an arbitral clause in their membership agreement with a taxi licensing company in order to obtain a taxi license they had voluntarily waived their rights, since it was not compulsory for Axelsson et al to operate as taxi drivers. [117] As follows, since there is no compulsory requirement to purchase a domain name if the disputant does so they voluntarily accept this policy and therefore waive their rights. This argument is also valid in the context of those ADR systems that operate online but are not modelled on traditional procedures. Examples of such systems are Digital Rights Management (DRM) software, which is used by copyright holders to track the use of digital materials that are protected by copyright so as to prevent unlicensed use, and notice and take down procedures, which involves Internet Service Providers removing websites that for example infringe copyright or defame another. [118] In particular, despite being heavily criticised for being unfair, i.e. the procedural burden shifts and it becomes the alleged infringer’s responsibility to launch litigation, individuals are neither obligated to purchase the goods that have DRM software built in nor launch a website. Hence if they do they will have agreed to these alternative justice systems.
Arbitraje y Mediación (ARyME) was an example of a European-based Provider that offered binding e-arbitration for Business to Business (B2B) disputes without the support of a trustmark. [119] It promoted the use of pre-dispute arbitration clauses, and even proposed a standard clause to use, although it did suggest that businesses consult their lawyer before doing so and highlighted that arbitration clauses could be negotiated after a dispute has arisen. [120] The e-arbitration procedure was governed by both their International Arbitration Rules (IAR) and their Supplementary Procedures for ODR Processes (SP). [121] Article 9 of the IAR stated that the arbitrator had to be independent and impartial. This Article gained support from Article 10 which outlined that arbitrators could be removed if there were doubts as to their independence and impartiality. Awards delivered by an ARyME arbitrator could be made public if required by law or by the parties in writing. [122] Strict rules on time limits were set out by the IAR so as to ensure a speedy resolution (Articles 4 and 6). Both parties were given equal opportunities to prepare, respond and be heard and the arbitrators were required to respect due process rules at all times (Articles 4, 15 and 16). Article 22 asserted that where a party failed to object in writing that the IAR had not been complied with they had waived their right to do so, which essentially mimicked the statutory waiver. In the SP Article 1(ii) indicated that e-arbitrations had to be carried out in accordance with the IAR. Article 1(iii) of the SP also gave the parties the ability to request an oral hearing. It appears therefore that ARyME’s arbitration procedure was in full compliance with Article 6.
The arbitral award delivered by an ARyME arbitrator was a valid and enforceable legal instrument and as such if objections were delivered in good time and complied with Article 22 of ARyME’s IAR then judicial proceedings would have been available to the parties to have the award reviewed and enforced. The nationality of an e-award determines the review and appeal structure available to the parties. In ARyME’s case Article 13 dealt with applicable law and jurisdiction noting the parties were able to make a choice themselves or failing that, the arbitrators had the ability to apply the rules of law they deemed appropriate. This included designating the seat of arbitration as Article 20(iv) stated that the award had to be executed in any manner required by the applicable law. In the alternative Article 20(iv) indicated that the award had to contain the date and place where the award was delivered and Spain is the place of establishment of ARyME. Accordingly either one of these factors may have confirmed where the e-award was delivered.
Obviously if the seat of arbitration is a CoE State then the court with jurisdiction must adhere to the ECHR. Where the seat has been designated as a country that is a non-contracting State of the CoE then the ECHR is no longer applicable even where a party to the proceedings and/or the institution that delivered the award is connected to a CoE State. As previously noted, a State’s duties will be invoked under the ECHR when a successful party tries to have the award recognised and enforced in that State in accordance with the New York Convention. [123] In such cases Article V(1) (d) of the Convention applies which states that recognition and enforcement can be refused if the composition of the arbitral authority or the arbitral procedure was not in accordance with either the agreement of the parties or the law of the country where the arbitration took place.
If the parties have made an agreement on these matters, the alleged irregularity must be judged under the said agreement. The law of the county where the arbitration took place will only be taken into account where the agreement on these matters is lacking or to the extent that the matters are not covered by the agreement. [124] A violation thereof may lead to a refusal of enforcement under Article V(1) (b) (was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case) or Article V(2) (b) (public policy). What is public policy is judged according to international public policy as has been expressly or implicitly affirmed by a substantial number of courts. [125] Procedural rights such as the right to an impartial arbitrator would be one such public policy right. [126]
Word&Bond (W&B) is an e-ADR Provider that employs a pan-European binding e-ADR system for both Business to Business (B2B) and B2C disputes. The interactive-arbitrations (i-arbitrations) offered by W&B are supported by a Trustmark scheme. I-arbitrations are consensual legal processes that are binding on both parties once they have agreed to use the system. When a trader signs up to W&B they enter into a License Agreement which states that the trader has to amend its standard conditions of sale to read: “[a]ll disputes or differences arising out of or in connection with this contract, including its validity, shall be referred for determination by arbitration under the W&B i-arbitration rules, by an arbitrator appointed thereunder”. [127] Whilst this seems to lock the buyer into a determination by W&B, this may not always be the case, at least for those buyers that are consumers.
Specifically if a consumer is domiciled in a State that forbids or restricts the use of pre-dispute arbitration clauses and decides not to file their dispute with W&B it is unlikely that the arbitration clause in their contract would be enforced against them. As such the consumer still has choice whether to opt for a W&B ruling and hence the clause in consumer contract acts more like a voluntary arbitration clause that is activated post dispute when the consumer submits their interactive-claim form. Given that it will typically be the consumer that brings a case before W&B rather than the trader because consumers do not want to go to national courts for disputes of small monetary value; the real purpose of the clause in a B2C contract is to ensure that the trader is bound to the rules and any decision taken by a W&B arbitrator. [128] In respect of B2B contracts the inclusion of this arbitration clause in their contract with the trader is very straightforward, particularly in respect of disputing businesses that are both W&B subscribers.
The i-arbitrations themselves are covered by the Arbitration Act 1996 of England and Wales and so the right to an impartial and independent tribunal should be met, [129] both parties have an equal opportunity to participate in the proceedings, and the parties voluntarily waive their right to a public pronouncement of their award as a consequence of Section 15 of W&B’s rules. Moreover, Section 17 of the i-arbitration rules states that interactive-awards are subject to the limited rights of review as set out in the Arbitration Act 1996. [130] Accordingly, in addition to being extremely innovative, the W&B system meets all the requirements of Article 6. [131]
4.4 Article 6 and Compulsory e-ADR
In a similar vein to voluntary e-ADR, the standards set by the ECHR in respect of compulsory ADR would also be applicable to e-ADR procedures that were invoked by legislation. If States tried to circumvent its problems with court backlogs by using e-ADR systems as they have done with ADR, they will have to ensure that these compulsory systems comply with Article 6. Any use of compulsory e-ADR of course has to be legitimate and proportionate to its aim. In addition, the rights found in Article 6 must be secured during the internal process itself or an external appeal process.
Undoubtedly when enacting and enforcing regulations and standards many governmental agencies, such as tax offices and environmental protection agencies, could utilise e-ADR systems quite effectively to resolve disputes. [132] In fact, some governments have already begun investigating the benefits of e-ADR with a view to adding e-ADR to their existing services. [133] Thus, even if the initial use of e-ADR by governments is only voluntary, eventually the use of compulsory e-ADR schemes will come to pass and serve as a constructive way of achieving better access to justice. In particular this change will be facilitated by technological advances, such as an increase in bandwidth and software capabilities, as well as cultural changes. Not only will governments have a role in prompting cultural changes but as the Internet generation supersedes the mortar generation this transformation process will be accelerated.
Whereas e-arbitration is generally considered to be the best e-ADR method, there are other types of e-ADR that can also be utilised, such as adjudication procedures and online ombudsmen.
4.4.1 Adjudication
Traditionally adjudication is a procedure that arises out of contract and involves the adjudicator - the third party - making a final and binding decision on the disputants unless the dispute is finally resolved through litigation or arbitration. Recently however adjudication has become increasingly important, particularly for disputes involving the construction industry, and in the UK it has been made compulsory for all construction contracts that are to be carried out in England and Wales and Scotland under the Housing, Grants and Regeneration Act 1996. [134]
The use of compulsory adjudication is permitted under the ECHR since it provides an efficient means of resolving construction disputes. Furthermore, adjudication tribunals do not have to comply with the ECHR in their entirety because their decisions are not necessarily a final determination, although the rules of natural justice ought to be applied. [135] Whilst an adjudicator’s decision can be enforced by means of a summary judgment a losing party can either initiate arbitration or litigation proceedings before the opponent has begun enforcement proceedings. In fact a party can launch both adjudication and litigation proceedings on the same day so as to have a full trial but get their hands on the money at issue immediately. [136] Since both arbitration and litigation are conducted by bodies that have full jurisdiction the ECHR will not be breached. [137]
4.4.2 Ombudsmen
Ombudsmen schemes involve complaints being investigated and reported on to help achieve a fair settlement between the disputants. Such schemes can be either statutory or non-statutory based, and some are compulsory whilst others are voluntary. By and large ombudsmen schemes are non-binding in nature, although some public operated systems are potentially enforceable in the ordinary courts. Where an ombudsmen scheme is a public scheme, it determines civil rights and obligations and produces binding awards it must comply with the requirements of Article 6.
Take for example the Financial Ombudsmen Service (FOS) in the UK which is compulsory for all those firms which are authorised by the Financial Services Authority (FSA). [138] Although questions exist in respect of whether this system complies with Article 6 in the offline context it is an example of a compulsory system that could both operate online and comply with Article 6. Consumers with complaints about finance companies approved under the Financial Services and Markets Act 2000 must first take their problem up with the company with which they have a dispute. Only when they have not had their complaint dealt with to their satisfaction can the FOS can look at the complaint.
The decisions delivered by the FOS are unilaterally binding in that the companies are obliged to adhere to its decisions but complainants are not. [139] If the complainant decides to accept the determination given by the FOS the decision will be final and binding on both parties, [140] and where the complainant rejects the determination neither party will be bound by the decision. [141] Since the decision can result in a binding award the system must comply with Article 6. Once a determination has been accepted by a complainant there is no appeal process. A decision given under the auspices of the FOS can be subjected to judicial review since the FOS is a public body but this is confined to checking whether the FOS has the power to act in the first place. [142]
Accordingly the only chance to adhere to Article 6 for the benefit of the company, unless the complainant takes the issue to court, is during the FOS procedure. [143] Obviously the complainant has the ability to reject the determination made by the FOS, on the basis that the decision procedure was unfair and therefore go to court de novo. However, just because a complainant feels the procedure was fair does not necessarily mean that the respondent company will also interpret things this way.
Additionally, the option to wait until the complainant has the award enforced is not available in this instance since Section 384 of the Financial Services and Markets Act 2000 gives the FSA the power to request payment of any award made by the FOS. Furthermore, Sections 380 and 382 allow the FSA to apply to the court for an injunction to prevent a firm from not complying and or continuing to contravene a decision rendered by the FOS. [144]
Unfortunately the FOS neither holds oral hearings nor permits respondent firms to request one. As the case law of the ECrtHR indicates, if firms had the ability to ask for a public hearing at first instance then Article 6 will have been complied with, and where they have failed to activate this right then they will have been considered to have waived the right. [145] Since most, if not all, companies will want to refrain from having unwanted exposure even if it was possible to request an oral hearing it is suggested that the workload of the FOS would remain more or less the same.
As a result it seems that the FOS, although a great system, is potentially in breach of Article 6. [146] As of yet a disillusioned firm has to bring an action against the FOS for breaching the right to a fair trial and so the extent of conformity remains ambiguous. In the event that the conformity of the FOS is challenged in court a possible defence exists via the Håkansson and Sturesson v. Sweden and Göç v. Turkey judgments, whereby the ECrtHR held that in proceedings before a court of first and only instance the right to a public hearing entails the entitlement to an oral hearing unless there are exceptional circumstances that justify dispensing with such a hearing. [147] Since the FOS is intended to provide a speedy means for dealing with complaints without the expense and delay of an oral hearing, domestic courts and possibly the ECrtHR may consider the FOS to be in compliance with Article 6. Further in Schuler-Zgraggen v. Switzerland the Court ruled that in the interests of speed national authorities may dispense of oral hearings so as to avoid jeopardising expediency and access. [148] Of course it would be much easier simply to provide the ability to ask for an oral hearing.
If the FOS overcomes its Article 6 compliance problems it may well be a candidate for compulsory government e-ADR scheme, primarily because it generally decides the cases that come before it on the basis of paperwork anyway. In the event that the FOS had to give users the option of an oral hearing at first instance the use of conferencing techniques may well be the online answer.
4.4.3 The Future is Bright for Compulsory e-ADR
At the moment a number of government schemes have already begun the migration process, and now offer a number of the services inherent in their systems online. This includes the FOS, which allows complainants to download a complaint form from their website, although at the moment they will not accept a form by e-mail. [149] Likewise, the Chartered Institute of Arbitrators which offers its services for the adjudication of construction disputes, allows the referring party to make their request for an adjudicator online. This involves submitting all documentation and making their nomination payment over the Internet. [150] Thus, whilst no compulsory government dispute resolution systems utilise e-ADR procedures at the moment, it is only a matter of time before activity in this area takes off.
Once government e-ADR is integrated with traditional practices things like online appeals could become very relevant to ensuring that full appellate jurisdiction is given to the courts. It should be noted that compulsory government run e-ADR schemes would primarily involve domestic participants and thus the need for online appeals is less significant. However some cases will have an international element for instance construction companies operating in the UK may be foreign and as such they would be subject to the Housing, Grants and Regeneration Act’s compulsory adjudication procedure in the same way as British companies. Similarly the FOS covers all complaints about most financial products and services provided in or from the UK, as non-UK based financial services companies can apply to the FSA for permission to carry out their activities in the UK. In particular, via a notification procedure, EEA-based financial service companies can gain authorisation under the Financial Services and Markets Act to direct their activities to consumers in the UK. Correspondingly UK-based financial service companies can carry out their services in other countries in the UK if permitted and thus non-UK based consumers can also seek to rely on the FOS.
Although e-ADR procedures are usually just online ADR procedures it is still necessary to question whether there is anything unique to them that might warrant the ECrtHR to apply the principles of Article 6 to them differently. In particular e-ADR has a number of unparalleled characteristics, such as a lack of in person interaction, concerns relating to the security of the communications and due process disadvantages, which could justify a stricter approach. Of them all reconciling the due process issues, and in particular inflexible time limits, with Article 6 may be the main challenge for the ECrtHR. In the same way that a procedure cannot take too long, fleeting time limits may be viewed as constraining the applicant’s decision to waive their rights.
This may be less of an issue where the disputants voluntarily agree to use the procedures as they know in advance about short time frames. When it is compulsory to use e-ADR inflexible time limits may be considered as more problematic. However, combining the approach taken in Deweer with Airey v. Ireland States could argue that e-ADR systems with strict time periods were necessary because the resources available to them were limited and that the rise in disputes in certain areas makes it necessary to sanction alternative systems so as to prevent court congestion. [151] Such an argument ought to be judged in light of whether similar systems also operate outside the CoE boundaries.
Furthermore, since the ECHR must be interpreted according to time and circumstance, a more contemporary approach would be to accept that the individuality of these systems is related to the state-of-the-art. Indeed, communications between the parties can be accelerated because of the storing, communicating and processing powers of ICT. As such a unique approach to the short time frames used in e-ADR procedures may not necessarily be the correct one, although it may be wise for States to regulate these procedures where possible so as to realign them with important public interests.
Another possible problem that may arise in the context of e-ADR is the application of the right of access to e-ADR. In particular unequal access to ICT might be a problem where the e-ADR Provider makes it compulsory for disputants to use specific ICT. It could well be that some disputants will not have access to the chosen ICT and thus an e-ADR procedure could become inaccessible to disputants with no access to the necessary ICT. Whilst disputants voluntarily agreeing to use e-ADR will not opt for a system that uses ICT that they do not have, it is still better that e-ADR Providers do not make it compulsory to use specific ICT. Again this relationship becomes even more complex where the e-ADR procedure is compulsory. As long as access to the relevant ICT is an issue States could not rely solely on ICT to communicate with the Provider, that is disputants will have to be allowed to file their complaints and send in any related documents using alternative communication methods. A more progressive solution to the access problem could be to employ a similar idea to that of court kiosks, which are currently used to give access to information about the law. [152] In particular court kiosks could also be set up by States to give disputants’ access to both the Internet and the ICT tools supporting the e-ADR procedure.
Generally the ECrtHR has reaffirmed that whatever method of dispute resolution is used - compulsory or not - when it is binding on the parties, the essence of the Convention must not be lost. The ECHR gives States more discretion in respect of voluntary proceedings because the parties have opted out of a state regulated procedure themselves. Nonetheless privately run systems must be subject to some procedural safeguards. By contrast where the ADR has been initiated as a consequence of legislation States must meet the obligations of Article 6 in full. Accordingly its obligations are almost as strict as they are when ordinary court proceedings have been invoked. Yet, since ADR procedures are introduced by States in order to increase access to justice, States are permitted to compromise some of the rights held in Article 6 at first instance so long as the guarantees found therein are secured during the appellate stage.
Given that the ECrtHR adopts a dynamic and contemporary approach to the interpretation of the ECHR so as to realise its fundamental object and purpose in an ever changing world, the potential for invocation in respect of e-ADR is immense. E-ADR is merely ADR carried out over the Internet and hence the same rules should apply to online versions as they do to the offline ones. As more and more European based e-ADR Providers operating within the private arena begin to use binding procedures the more relevant Article 6 will become. Consequently the need for laws that secure procedural guarantees will also become more important. Likewise if governments begin substituting court- and compulsory ADR procedures with compulsory e-ADR systems these must also comply with Article 6. Accordingly, e-ADR procedures, whether voluntary or compulsory, must be regulated appropriately if States do not want to find themselves in breach of the ECHR. Indeed, as the popularity of e-ADR grows the future relationship between e-ADR and Article 6 will only get more intertwined.
[1] Golder v. United Kingdom, A 18 (1975), para 35.
[2] Lord Chancellor’s Department Working Group, Alternative Dispute Resolution: Interim Report to the Lord Chancellor , 1991, Page 4.
[3] See further Palmer, Michael., & Roberts, Simon., Dispute Processes: ADR and the Primary Forms of Decision Making , 1998, First Edition, Butterworths London.
[4] See further Vahrenweld, Arnold., Out-of-Court Dispute Settlement Systems for E-commerce, Report on Legal Issues , Part III: Types of Out-of-court Dispute Settlement, 29 th May 2000, pages 8- 10.
[5] See further National Alternative Dispute Resolution Advisory Council, Dispute Resolution and Information Technology: Principles for Good Practice , March 2002, http://www.nadrac.gov.au/adr/DisputeResolutionInformationTechnology.htm , (accessed 12/12/02).
[6] The three pilot projects were called the Virtual Magistrate, the Online Ombuds Office and the Maryland Mediation Project. These systems are thought to have transpired during stage 2 of the development of e-ADR, i.e. experimental stage. In contrast to stage 1, which saw the evolution of non-ADR dispute resolution techniques that were applied informally and in particular contexts (e.g. blocking or unsubscribing flamers on mailing lists) – the elementary stage, the experimental stage saw the rise of the first actual e-ADR Providers. Stage three, the entrepreneurial stage, which is still running today, involved the commercialisation of e-ADR systems. See further Katsh, Ethan, and Rifkin, Janet., Online Dispute Resolution: Resolving Conflicts in Cyberspace , Jossey-Bass: San Francisco, 2001, Pages 47-67.
[7] See further Hörnle, Julia., Online Dispute Resolution – The Emperor’s New Clothes? Benefits and Pitfalls of Online Dispute Resolution and its Application to Commercial Arbitration , BILETA Conference 2002, http://www.bileta.ac.uk/02papers/hornle.html , (accessed 27/06/02).
[8] Schultz, Thomas., Online Dispute Resolution: An Overview of Selected Issues , United Nations Economic Commission for Europe Forum on Online Dispute Resolution, June 2002.
[9] See National Alternative Dispute Resolution Advisory Council, Supra No.5.
[10] EC Commission Recommendation on the Principles Applicable to the Bodies Responsible for Out-of Court Settlement of Consumer Disputes (98/257/EC) and Recommendation on the Principles Applicable to the Bodies Responsible for Out-of Court Settlement of Consumer Disputes (2001/310/EC).
[11] See further Guidelines for Consumer Protection in the Context of Electronic Commerce, December 9, 1999.
[12] See also Bygrave, Lee, A., Online Dispute Resolution: What it means for Consumers , Sydney, May 2002, Page 7, http://www.bakercyberlawcentre.org/2002/Domain/Bygrave_ODR.pdf , (accessed 15/11/02) and Hörnle, Julia., Disputes Solved in cyberspace and the rule of law , BILETA 2001, http://www.bileta.ac.uk/01papers/hornle.html , (accessed 04/03/02).
[13] See Convention for the Protection of Human Rights and Fundamental Freedoms
as amended by Protocol No. 11, http://conventions.coe.int/Treaty/EN/Treaties/Html/005.htm , (accessed 12/02/03). Article 6 has a further two sections (6(2) and 6(3)), both of which relate primarily to the rights of individuals charged with a criminal offence, although they can serve as a point of reference in civil cases. It should be noted that applicants may be natural persons (whether citizens or not) or legal persons such as corporations or organisations or interest groups.
[14] Harris, D, J., Boyle, M, O., and Warbrick, C., Law of the European Convention on Human Rights , 1995, First Edition, London: Butterworths, Page 164 and De Cubber v. Belgium A 86 (1984).
[15] See Delcourt v. Belgium A 11 (1970) at para 25 and Moreira de Azevado v. Portugal A 189 (1990) at para 66. Although these cases make explicit reference to Article 6 (1), the same can be said for Articles 6 (2) and (3). See also Harris, D, J., Boyle, M, O., and Warbrick, C., Ibid, page 164.
[16] See further Harris, D, J., Boyle, M, O., and Warbrick, C., Supra No.14, Pages 15 and 164.
[17] See further Jacobs, Francis, G., and White, Robin, C, A., The European Convention on Human Rights , 1996, Second Edition, Oxford: Clarendon, page 128. See also Ringeisen v. Austria A 13 (1971) para 94 and Konig v. Federal Republic of Germany A 27 (1978) at para 88.
[18] Supra No.1.
[19] The Commission used to screen applicant cases i.e. they checked the admissibility of a complaint and produced a reasoned opinion as to whether there had been a breach which a state could either endorse or contest. After 1 November 1998 screening is now carried out by chambers of the Court.
[20] It should be noted that the decisions taken by the Commission were not authoritative, but rather only had a persuasive value for the court. Nonetheless the fact that by and large States accepted its decisions reflected that the ECrtHR would have likely arrived at the same conclusion
[21] Supra . No.1, para 33 – 36. See also Separate Opinion of Judge Verdross, who, although held a dissenting opinion based on the lack of jurisdiction of the Court, agreed with the reasoning of the court as regards the implied right of access to a court.
[22] See further Harris, D, J., Boyle, M, O., and Warbrick, C., Supra No.14, page 202.
[23] See further Dombo Beheer v. Netherlands A 274 (1993) para 32 and Albert and Le Compte v. Belgium A 58 (1983) para 39.
[24] See Neumeister v. Austria A 8 (1968) and Kaufmann v. Belgium App. No. 10938/84, 50 DR 98 (1986).
[25] X v. United Kingdom App. No. 8512/79 (1979).
[26] For example in the interests of morals, see further ECHR Supra No.13.
[27] Poitrimol v. France A 277-A (1993) para 31. See also Harris, D, J., Boyle, M, O., and Warbrick, C., Supra No.14, Page 204.
[28] Håkansson and Sturesson v. Sweden A171-A (1990) para 66 and Fredin v. Sweden (No.2) A 283-A (1994) para 21.
[29] See X v. France A 234-C (1992), Konig Supra No. 17, and Wiesinger v. Austria A 213 (1991).
[30] A 43 (1981) para 56.
[31] Belios v. Switzerland A 132 (1988) para 50.
[32] Benthem v. Netherlands A 97 (1985).
[33] Ringeisen v. Austria A 13 (1971), para 95 and Crociani v. Italy App. No. 8603/79 (1980).
[34] A 80 (1984) para 78.
[35] See Hauschildt v. Denmark A 53 para 46 (1982).
[36] Gregory v. United Kingdom (1977) 25 EHRR 577. See also See further Sellar v. Highland Railway Co . 1919 SC (HL) 19. In the context of a jury trial the jury is committed by oath that they faithfully try the applicant and give a true verdict according to the evidence presented to them. Furthermore a judge can discharge a jury at anytime.
[37] See Bramelid and Malmström v. Sweden App. Nos. 8588/79 and 8589/79 (1986) 8 EHRR 45, para 33, page 118.
[38] Lawson, Philippa., E-commerce Listserv, Online ADR for Consumers, FTC/consumer.gov initiative , posted 27/02/02, http://lists.essential.org/pipermail/ecommerce/2002q1/000683.html , (accessed 12/03/03).
[39] This is in line with the decision given in Belios v. Switzerland and Betham v. the Netherlands, Supra No.31 and 32 respectively. Also see the deliberations of the European Court of Justice in Case 61/65 Vaassen-Goebbels 1966 ECR 377.
[40] See further Haydn-Williams, Jonathan., Arbitration and the Human Rights Act 1998 , The Journal of the Chartered Institute of Arbitrators, Volume 67, Number 4, November 2001, 289-311, at page 297.
Article 6 is a procedural guarantee of a right to a fair trial in determination of the substantive legal rights and obligations in question. If a dispute is deemed to exist then it must be established whether the civil rights and obligations at issue are being ‘determined’ by the proceedings. Clearly, this condition is achieved when the applicants civil rights and obligations are the main focus of the proceedings; the outcome of which is determinative to their implementation. See further Starmer, Keir., European Human Rights Law: the Human Rights Act 1998 and the European Convention on Human Rights , 1999, London: Legal Action Group, pages 346 - 348.
[41] A 35 (1980).
[42] Ibid, at para 49.
[43] Supra No. 41, paras 50 and 51.
[44] Ibid, para 54.
[45] App No. 1197/67, Yearbook 5, (1962). See also R v. Switzerland App. No. 10881/84 (1987), Hedland v. Sweden App. No. 24118/91 (1997), Oberschlick v. Austria A 204 (1991) and Pfeifer and Plankl v. Austria A 227 (1992).
[46] See further Haydn-Williams, Jonathan., Supra No 40, pages 293, and 302 – 304. This question of whether arbitral tribunals are ‘public authorities’ recently arose in the UK in the context of the Human Rights Act 1998, which makes it unlawful for a public authority to act contrary to the rights in the ECHR. However, whether or not arbitral tribunals are classed as public authorities they are still obliged to adhere to the ECHR as all legislation, including the Arbitration Act 1996 must be read and given effect to in way that is compatible with the ECHR. Ibid, page 303. It should be noted that it is possible for a private entity to exercise a public duty from time to time, as is the case with Railtrack in the United Kingdom when it acts in its capacity as a developer of railway property.
[47] App. No. 11960/86 (1990). The application was thus found to be manifestly unfounded.
[48] Further support for this argument is seen in Samuel, Adam., Arbitration and the European Convention on Human Rights , pages 18-20, http://www.adamsamuel.co.uk/pdf/echr.pdf , (accessed 15/01/03).
[49] See further Håkansson and Sturesson Supra No. 28, para 66 and Scarth v. United Kingdom App. No. 33745/96 (1999).
[50] Suovaniemi and Others v. Finland App. No. 3137/96 (1999).
[51] Ibid.
[52] See further Supra No. 45.
[53] See Pfeifer and Plankl v. Austria Supra No.45 where the question of the ability to waive the right to an impartial and independent tribunal was left open.
[54] See also D v. Ireland App. No. 11489/85 (1986).
[55] App. No. 18479/91 (1991).
[56] App. No. 28101/95 (1996). It should be considered that in interpreting Nordström in the context of Suovaniemi, the ECrtHR, noted that States do have some discretion with regards to regulating the proceedings as quashing awards will often be counterproductive. Whilst this suggests that the appellate and supervisory powers can be restricted, it does not concur with Nordströms’s extreme position that the possibility exists not to have any counter measures in the first place. See also Haydn-Williams, Jonathan., Supra No. 40 for a discussion on this conflict, in particular see footnote 20.
[57] The rules of natural justice are the same as those enshrined in Article 6 save for the right to public hearing and public pronouncement.
[58] See further Haydn-Williams, Jonathan., Supra No. 40.
[59] See Section 4, para 4, and Supra No.41. See also Haydn-Williams, Jonathan., Ibid, page 298 and Molin v. Turkey App. No. 23173/94 (1996).
[60] See further Lawson, Philippa., Supra No.38
[61] See further Cooper, Jonathan. International Human Rights Treaties in UK Domestic Law: Inspirational, Enforceable, or Irrelevant , http://www.doughtystreet.co.uk/data/h_rights/data/cooper.pdf , (accessed 06/04/03).
[62] Often when a State is held liable it is not always required to pay compensation for pecuniary and non-pecuniary loss, rather it is only obligated to pay costs and expenses but as already noted even, if the is the case, the real sanction is the public finding that a State is in breach of the Convention.
[63] See further Aeberli, Peter, D., Arbitration: Statutory and Contractual Framework , <http://www.aeberli.co.uk/articles/BLS%20-%20%20ARBITRATION%20LAW%20AND%20PRACTICE.pdf>, (accessed 04/06/03).
[64] Section 69(3). See also North Range Shipping Limited v. Seatrans Shipping Corporation [200] EWCA Civ 45.
[65] See Airey v. Ireland A 32 (1979) which stated that a duty is placed on signatories to organise their legal systems to comply with Article 6. With the possibility existing for States to be held liable for failing to increase resources where backlogs exist it seems reasonable that they would attempt to streamline the judicial system so that certain types of cases were directed towards another system thereby freeing up the courts for other cases.
[66] Supra No.41.
[67] App.No.38190/97.
[68] The adverse effects would only have been felt in EU countries as opposed to Norway because save for offshore power generation and on-land methanol production and gas processing there is no natural gas consumption in Norway. Rather Norway is a major supplier to EU countries, currently holding 15% of the market share.
[69] See further Supra No. 37.
[70] Lag om Skiljemän (SFS 1925: 1945). See also Chapter 14, Section 9(1) – (3) of the Companies Act (Aktiesbolagslagen (SFS 1975: 1385)).
[71] See further Supra No. 37, para 35.
[72] Ibid, para 31. See also Commission Admissibility Report, (1983) 5 EHRR 249, Complaint No.4, pages 249 – 250 and 258 – 259. This approach was endorsed by the Court in Bryan v. United Kingdom A 335-A (1995).
[73] See also Guzzardi v. Italy A 39 1980, para 72 and Van Oosterwijck v. Belgium A 40 1980, para 34, where it was outlined that a higher or the highest court might, in some circumstances, make reparation for an initial violation of one of the Convention's provisions which is precisely the reason for the existence of the rule of exhaustion of domestic remedies.
[74] See further Supra No.23 para 29. See also Le Compte et al, Supra No.30, para 51 (b).
[75] See for example W v. United Kingdom A 121 (1987).
[76] A 86 (1984) para 32. See further Zand v. Austria App No. 7360/76 (1979), paras 50 - 60. See also Campbell and Fell v. United Kingdom A 80 (1984) paras 67-73 and 76.
[77] De Cubber, Ibid, para 32.
[78] See further Schultz, Thomas., Online Arbitration: Binding or Non-binding , http://www.ombuds.org/center/adr2002-11-schultz.html , (accessed 12/12/02)., and Vahrenweld, Arnold., Out-of-Court Dispute Settlement Systems for E-commerce, Report on Legal Issues , Part IV: Arbitration, 31 st October 2000 (revised 07/03/01).
[79] See further Hill, Richard., The Internet, Electronic Commerce and Dispute Resolution: Comments , Journal of International Arbitration, Volume 14 (1997) 4.
[80] See further Hill, Richard., Ibid, page 104. See also Article 1(2) (c) of the European Convention on International Commercial Arbitration 1961. It is also questionable whether the server for the technology platform can be indicative of the seat.
[81] See Jakob, Supra No 55. Obviously time limits and statutory waivers must be complied with of the applicants wish to succeed. See for instance Sections 67 (1) and 70 (2) and (3) of the Arbitration Act 1996.
[82] See in particular the English and Welsh Arbitration Act 1996, Sections 5 and 52. Although Section 5 applies to agreements it is likely that the same rules would be applied to the award. Alternatively Section 52(1) allows the parties to agree on the form of award and hence they are free to agree to electronic awards. See also the German Arbitration Reform Act 1988 and the Swiss Private International Law Statute 1987.
[83] See Directive 2001/31/EC on Certain Legal Aspects of the Information Society Services, in particular E-commerce, in the Internal Market.
[84] See for example Directive 1999/93/EC on a Community Framework for Electronic Signatures.
[85] United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
[86] See further United Nations Conference on Trade and Development, Dispute Settlement: International Commercial Arbitration, 5.9 Electronic Arbitration, 2003, page 20.
[87] Article 7(2). As of this writing 38 States have adopted the Model Law, see further http://www.uncitral.org/en-index.htm (accessed 30/10/03).
[88] See Vahrenweld, Arnold., Supra No.78, page 37. See further van den Berg, Jan, Albert., The New York Convention of 1958: Toward a Uniform Judicial Interpretation , Kluwer Law and Taxation Publishers, T.M.C. Asser Institute – The Hague, 1981, among others, page 1.
[89] See Kahn Lucas Lancaster, Inc. v. Lark International, Ltd . (2d Cir. 7/29/99) and Sidley and Austin, Standards For Enforcement of Arbitration Agreement May Be Different Under International Convention , Alternative Dispute Resolution Developments, <http://articles.corporate.findlaw.com/articles/file/00082/000829/title/Subject/topic/
Alternative%20Dispute%20Resolution_International%20Arbitration/filename/alternativedisputeresolution_1_8>.
[90] Cardero Moss, Guidotto., International Commercial Arbitration: Party Autonomy and Mandatory Rules , AIT Otta AS, pages 240 – 244.
[91] See further UNCITRAL, Preparation of Uniform Provisions on Written Form of Arbitration Agreements , February 6, 2002, A7CN.9/WG.II/WP.118, http://www.uncitral.org/english/workinggroups/wg_arb/wp-118e.pdf , (accessed 19/01/04). See also United Nations Conference on Trade and Development, Supra No.86, pages 24-25.
[92] See further van den Berg, Jan, Albert., Supra No. 88, page 83.
[93] See further van den Berg, Jan, Albert., Ibid, pages 86 - 87.
[94] See further UNCITRAL, Preparation of Uniform Provisions on Written Form of Arbitration Agreements , Supra No.91.
[95] See further Schultz, Thomas., Supra No.8, Hill, Richard., On-line Arbitration: Issues and Solutions , http://www.umass.edu/dispute/hill.htm , (accessed 15/05/02), and Arsaic, Jasna., International Commercial Arbitration on the Internet: Has the Future Come Too Early , Journal of International Arbitration, Vol.14 (1997) 3, 209-221.
[96] See further Schultz, Thomas., Ibid. In particular footnote 33. To be on the safe side it is far wiser that the Provider and a Trusted Third Party retain primary copies and the parties only receive secondary ones.
[97] See further United Nations Conference on Trade and Development, Supra No.86, pages 52-53.
[98] Cf R. v. Gold and Another [1988] 2 All ER 186 whereby the House of Lords was forced to allow hackers to go free because they could not construe hacking to come within the definitions in the Forgery and Counterfeiting Act 1981.
[99] See further http://www.onlineconfidence.org/To-Resolve/ODR-featur/index.htm#Evaluation , (accessed 09/07/03).
[100] The European Convention on International Commercial Arbitration (1961), otherwise known as the Geneva Convention, has already emerged from Article 293 but it was only ratified by a few EU Member States because of the acceptance of the New York Convention and hence is not in force. As an alternative to a supranational effort the CoE could produce an international Convention that takes into consideration electronic communications.
[101] Indeed, in the Axelsson case, Supra No. 47, it was stated that whilst the Court determined whether an oral hearing was necessary the applicants could have still asked for an oral hearing. See further Jakob, Supra No. 55, Molin v. Turkey, Supra No.59, and Stran Greek Refineries and Startis Andreadi v. Greece App. No. 13427/87 (1994). Section 69 of the English and Welsh Arbitration Act 1996 outlines that an application for leave is to be determined without a hearing unless it appears to the court that a hearing is required, which may breach Article 6. See further Haydn-Williams, Jonathan., Supra No.40, page 301.Yet this provision may also signify that as long as the judge has the right to make this decision public reviews may not be necessary, as the ability to have a public hearing still exists and is thus safeguarded.
[102] See further Schultz, Thomas., An Essay on the Role of Government for ODR: Theoretical considerations about the future of ODR , International Conference for Artificial Intelligence 2003.
[103] See further Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts, Section 91 of the English and Welsh Arbitration Act 1996 and the Unfair Arbitration Agreements (Specified Amount) Order 1999, No.2167 and Section 6 of the Swedish Arbitration Act.
[104] See Samuel, Adam., Supra No.49. See also X. v. Federal Republic of Germany (1962).
[105] See further http://www.onlineconfidence.org/Trust-Seal/FAQ/index.htm , (accessed 09/07/03).
[106] Articles 21 and 22 of the Rules of the Procedure. See further http://www.onlineconfidence.org/To-Resolve/ODR-Rules/index.htm , (accessed 09/07/03).
[107] Article 23, Ibid, places a duty of confidentiality on the Evaluator, the parties and the Case Officer. Moreover Online Confidence states that they will publish statistics, see http://www.onlineconfidence.org/Know-more-/Latest-Sta/index.htm (accessed 09/07/03).
[108] Article 16, Su pra No.106.
[109] This is a similar argument to the one advanced by HHJ Bowsher QC in Austin Hall Building Ltd v. Buckland Securities Ltd [2001] TCLR 405, which viewed enforcement proceedings by way of a summary judgment to be an adequate method of securing the rights held in Article 6.
[110] E-mail communication with Vincent Tilman of Online Confidence, 20 August 2003
[111] See further www.wecansettle.com .
[112] See http://www.nic.uk/DisputeResolution/DrsProcedure/, (accessed 15/10/03). This system is based on the US-based Uniform Dispute Resolution Procedure (UDRP) operated under the auspices of the Internet Corporation for Assigned Names and Numbers.
[113] Section 17(c) (ii), Ibid.
[114] See Suovaniemi, Supra No. 50. It should be considered that domain name arbitration is a hybrid form of arbitration and would not be covered by arbitration laws. See further the US the 3rd Circuit Court of Appeal case Dluhos v. Strasberg, 321 F.3d 365 (3rd Cir. 2003), which stated that although the UDRP ran along similar lines to documents only arbitration it was not arbitration in the traditional sense because certain provisions in the Federal Arbitration Act, such as the right to appeal, were rendered redundant by the UDRP rules.
See further http://caselaw.findlaw.com/data2/circs/3rd/013713p.pdf (accessed 21/02/03).
[115] See further Schiavetta, Susan., and Komaitis, Konstantinos., ICANN’s Role in Controlling Information on the Internet , BILETA 18 th Annual Conference, http://www.bileta.ac.uk/03papers/schiavetta.html , (accessed 06/08/03)
[116] Thornberg, Elizabeth, G., Going Private: Technology, Due Process and Internet Dispute Resolution , 34 U.C.Davis L Rev 151 (2000)., pages 191 – 193. This particular article discusses this problem in the context of ICANN but the principles are the same.
[117] Supra No.47. It should also be noted that at the time of applying for a taxi permit this was the only company operating at the time. See also Hedland v. Sweden, Supra No.45. In this case although the Commission declared the case inadmissible for failure to exhaust domestic remedies, it is likely that had the Hedland case been declared admissible the Commission would have found that Mr Hedland was not required to go and work for his employer.
[118] See for example Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on Certain Legal Aspects of Information Society Services, in particular Electronic Commerce, in the Internal Market which provides safe harbour provisions for ISPs, although it is left up to Member States to decide how notice and take down procedures should work. In the UK the Statutory Instrument implementing the Directive (2002 (No. 2013) implements that Directive reflects reliance on Codes of Conduct promulgated by Industry. N.B. Thornberg, Supra No. 116, makes a compelling argument for judging DRM software and such like as e-ADR systems/privatised systems of justice.
[119] Although ARyME is still operational it is no longer able to provide ADR services because of a new (incomprehensible) law in Spain prohibiting corporations from delivering such services. As the law stands now only not-for-profit associations, chambers of commerce and bar associations are allowed to provide ADR services in Spain. See further Article 14(1) of the Spanish Arbitration Act, Law 60/2003.
[120] ARyME, Clauses: The Key to Arbitration , http://www.aryme.com/aryme/eng/arbitraje/clausulas.asp , (accessed 02/08/03). Only a few jurisdictions such as Scandinavian jurisdictions afford similar protection to small businesses as consumers. In such cases the ability exists for small business to seek an injunction to prohibit the use of an improper term by a stronger business concern or apply to have an unreasonable contract term declared unenforceable or adjusted. In some cases these rights may be applicable in the context of pre-dispute arbitration clauses. See for example the Swedish Contract Act, Section 36. See also Collins, Brian, St. J., Unfair Terms in Consumer Contracts Regulations 1994 , [1995] 3 Web JCLI, http://webjcli.ncl.ac.uk/articles3/collins3.html , (accessed 12/03/03).
[121] <http://www.aryme.com/documentacion/esp/adobe_pdf/reglamentos/aryme_reglamentos_2003.pdf>, (accessed 05/08/03).
[122] Article 20 (viii), Ibid.
[123] See further the facts of the Jakob case, Supra No.55.
[124] See van den Berg, Albert, Jan., Supra No.88, page 325.
[125] See for example Judgement of 3 April 1975, Oberlandesgericht of Hamburg, U.S Firm P v. German Firm F YB Comm. Arb. II (1977) 241 (Germany No.11).
[126] See also Hill, Richard., Primer on International Arbitration , July 1995, http://www.batnet.com/oikoumene/arbprim.html , (accessed 29/10/03).
[127] Schedule 1, Section 2.4 of the Trader License Agreement. E-mail Communication with Martin Odams de Zylva, 03/04/2003.
[128] Ibid.
[129] Section 1 of the Arbitration Act 1996 and Section 29 of W&B’s i-abitration rules.
[130] See further The W&B i-arbitration Rules, http://www.wordandbond.com/images/i-arbitrationrules.pdf , (accessed 04/04/03). No mention is made of excluding the application of Section 69.
[131] For an example of similar system see further the Independent Dispute Resolution Service for Purchaser’s From Ford Journey carried out by Chartered Institute of Arbitrators. The systems leads to an award which is final and legally binding on all parties and subject only to the limited rights of review and appeal set out in the Arbitration Act 1996 where claimant has won their claim in full. See further The Rules of the Independent Dispute Resolution Service for Purchaser’s From Ford Journey, Rules 1.2 and 3.2 (10), https://www.arbitrators.org/fordjourney/Index.htm , (accessed 10/08/03). See also The Rules of the Independent Dispute Resolution Service for the Travel Industry, http://www.arbitrators.org/ABTA/rules.htm , (accessed 10/08/03).
[132] See Katsh, Ethan., Online Dispute Resolution: The next phase , Lex Electronica, vol. 7, No.2, printemps 2002, http://www.lex-electronica.org/articles/v7-2/katsh.htm , (accessed 18/04/03). See also Rule, Colin., Online Dispute Resolution for Business , San Francisco: Jossey-Bass, 2002, Chapter 9.
[133] Tyler, Melissa, Conley., and Bretherton, Di., Research into Online Alternative Dispute Resolution: Exploration Report prepared for the Department of Justice, Victoria , 21 March 2003, http://www.odrnews.com/ODRAusReport.doc , (accessed 21/05/03), pages 12 – 15 and 47 – 59.
[134] See in Part II, Section 108 of the Act. See also The Scheme for Construction Contracts (England and Wales) Regulations 1998 (Statutory Instrument 1998 No. 649) and The Scheme for Construction Contracts (Scotland) Regulations 1998 (Statutory Instrument 1998 No. 687).
[135] See Elanay Contracts Ltd v. The Vestry [2001] BLR and Freshfields, Bruckhaus Deringer, The Human Rights Act 1998: the impact on construction and engineering law , October 2000, http://www.freshfields.com/practice/disputeresolution/publications/pdfs/22510.pdf , (accessed 11/02/03) and Compulsory adjudication of disputes , October 2001, http://www.freshfields.com/practice/disputeresolution/publications/pdfs/1543.pdf , (accessed 12/03/03).
[136] E-mail Communication with Tony Bingham on 05/06/03.
[137] See further Winter, Jeremy., and Handler, Rebecca., Adjudication, the Human Rights Act and the Rules of Natural Justice , <http://www.bakerinfo.com/NR/rdonlyres/e6ds3zvrzfwiui6i4hb7zxxbrbpolpduha6jnpfxnvnzqzhglme
ogo3raf5h63gcvbk24as6m3y2ej/Adjudication Human Rights.pdf>, (accessed 15/05/03). To participate in arbitration this must be included in the contract and this would be considered as a voluntary process and would change the dynamic of the system.
[139] Financial Services and Market Act 2000 Part XVI. See further http://www.financial-ombudsman.org.uk/about/key-facts.htm , (accessed 24/06/03).
[140] FSA Handbook, Complaint Handling Rules , DISP 3.8.3 (3), http://www.fsa.gov.uk/vhb/html/DISP/DISP3.8.html and Appendix 1, DISP 1.8.1, http://www.fsa.gov.uk/vhb/html/DISP/DISPApp1.8.html , (accessed 24/06/03).
[141] Ibid, DISP 3.8.3 (4)
[142] Benitez, Rafael, A., Administrative Justice in a World in Transition: Pan-European Values in Administrative Justice - administrative justice in a world in transition , CLWR 30 (434). See also Le Compte, et al, para 51 (b).
[143] See further Responses to the Consultation, and the FSA’s Policy Approach , http://www.fsa.gov.uk/pubs/policy/p04.pdf (accessed 28/02/03) and Ombudsman Schemes: Guidance for Departments , http://www.cabinet-office.gov.uk/central/2001/Ombudsmen/ombudsman_schemes.htm , (accessed 03/12/02). See also Your Complaint and the Ombudsmen, How can the Financial Ombudsmen Service Help , http://www.financial-ombudsman.org.uk./publications/consumer-leaflet.htm , (accessed 24/06/06).
[144] Warning notices and decision notices are also available under Section 385 and 386 and Section 150 allows complainants to take legal action for payment of damages where they have suffered a loss as a result non-compliance.
[145] Schuler-Zgraggen v. Switzerland A 263 (1993). See also Austin Hall Building Ltd, Supra No.109. In Deweer the ECrtHR stated obiter that the right to an oral hearing can be waived when dealing with public bodies. See further Supra No.41, para 49.
[146] See further Financial Ombudsman Service and the European Convention on Human Rights , http://www.ifasok.co.uk/financial_ombudsman_service.htm , (accessed 10/07/03).
[147] See Series A 171 (1990) para 64 and App. No. 36590/97 (2002) para 47 respectively. Article 6(1) itself states that an oral hearing may be excluded in special circumstances where it would prejudice the interests of justice.
[148] Supra No.145, paras 57 and 58.
[149] FSO, How to Complain , http://www.financial-ombudsman.org.uk/consumer/complaints.htm , (accessed 25/06/03).
[150] See further New online construction arbitration service in the United Kingdom , ODR NEWS, http://www.odrnews.com/2003_01_19_archive.htm , (accessed 24/01/03).
[151] See Section 4.2 and Supra No. 41 and 65.
[152] See further Susskind, Richard., The Future of Law , Oxford University Press, Oxford, 1996, pages 212 - 215.