Common wisdom used to be that human rights had no bearing on international business relationships and on arbitration as a means to settle commercial disputes. Thus, the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950 by various member States of the Council of Europe, (the “Convention” or the “ECHR”) was deemed irrelevant to the theory and practice of international commercial arbitration. As a result, arbitration lawyers showed no interest for the case law developed by the European Commission of Human Rights and the European Court of Human Rights when deciding on applications filed by private parties pursuant to the enforcement mechanism commanded by the aforementioned treaty.
It was also quite widely acknowledged that arbitration was not a matter to be regulated by the law of the European Union (the “EU”), such position having been robustly reaffirmed by various sectors of the legal community and by some EU institutions at the time of the recent “recast” of EU Regulation no. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I”).
A corollary of these two propositions was that, though ratified by all the Member States of the EU and laying down rules which rank high among the sources of EU law, the Convention could have no impact whatsoever on EU law as far as the regulation of arbitrations linked to the EU was concerned.