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.

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