A Protocol for Being Heard: Invoking a New Right for an Open Arbitration Hearing in Europe

摘要

The European Court of Human Rights judgment bears witness of a global trend: a rising public interest in arbitration, which is also due to the successful rise of arbitration use. That prompts a conflict between the principle of confidentiality seen as germane to arbitration, and the call for more transparency. This conflict calls for well-crafted solutions. Transparency and confidentiality ought to be balanced to preserve arbitration's fitness for its purpose: an efficient and neutral (international) dispute resolution tool. CAS Code Article R43 (the full code is available at https://bit.ly/lipJp5w) provides for confidentiality in CAS arbitrations by default. It states: R43 Confidentiality Proceedings under these Procedural Rules are confidential. The parties, the arbitrators and CAS undertake not to disclose to any third party any facts or other information relating to the dispute or the proceedings without the permission of CAS. Awards shall not be made public unless all parties agree or the Division President so decides. Correspondingly, Article R44.2, on hearings, in its second paragraph, still subjects a public hearing to the consent of both parties ("... Unless the parties agree otherwise, the hearings are not public. ..."). So did former Article R57 para. 2 of the CAS Code, the provision at issue in Mutu and Pechstein v. Switzerland ("... At the hearing, the proceedings take place in camera, unless the parties agree otherwise."). Conversely, the European Court has established a party's right to request a public hearing in mandatory CAS arbitrations that is not contingent on the other party's consent, while it has carved some limits and exceptions to that right.