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Arbitration and Right of Access to Justice: Tips for a Successful Marriage

The arbi­tra­tion, a form of pri­vate jus­tice paid by the par­ties, and the right of access to jus­tice regard­less the finan­cial obsta­cles guar­an­teed by the Euro­pean Con­ven­tion of Human Rights are pre­de­ter­mined to have a dif­fi­cult rela­tion­ship. Nev­er­the­less, their “mar­riage” has been recent­ly cel­e­brat­ed when, on 17 Novem­ber 2011, the Paris Court of Appeal decid­ed that arbi­tral tri­bunals are not exempt from apply­ing this right. Con­se­quen­tial­ly, the Court annulled for vio­la­tion of right of access to jus­tice an inter­na­tion­al arbi­tral award in which arbi­tra­tors fol­lowed the ICC court’s deci­sion to with­draw coun­ter­claims of an impe­cu­nious cor­po­rate defen­dant because of the non-pay­ment of the advance on costs.

The Court’s deci­sion marks a tri­umph of the right of access to jus­tice over par­ty auton­o­my to sub­mit dis­pute to arbi­tra­tion gov­erned by a pro­ce­dure agreed on by the par­ties. Nev­er­the­less, it does not pro­vide an appro­pri­ate solu­tion for cas­es when a par­ty to arbi­tra­tion is impe­cu­nious. There­fore, the tips for a “suc­cess­ful mar­riage” between arbi­tra­tion and right of access to jus­tice are need­ed and alter­na­tive solu­tions how to artic­u­late right of access to jus­tice and arbi­tra­tion in pres­ence of an impe­cu­nious par­ty will be explored.

Click here to read the full note Arbi­tra­tion and Right of Access to Jus­tice: Tips for a Suc­cess­ful Mar­riage.

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