one of the applicants (Ms Pechstein) According to the Court, if the arbitration is was entitled to a public hearing before voluntary, there is no need for the arbitral tribunal the CAS. The judgment has enormous practical relevance for the realm of to be established by law, since this requirement is sports arbitration, and is also of great actually waived by the parties Home significance from a doctrinal point of view and for arbitration more generally, Editorial since the Court attempted to clarify no law imposes arbitration: in some The situation of the skater (Ms Pechstein) the conditions under which arbitral circumstances, the weaker party to the is different, the Court explained. proceedings that are not based on a contract has no other choice than to Since she wanted to participate in Insight voluntary agreement by the parties are accept the arbitration clause. The Court professional competitions organised When arbitration is not voluntary: the case of Mutu nevertheless in conformity with the calls for a contextual analysis of the by the International Skating Union, and Pechstein v. Switzerland Convention. situation the parties find themselves in. In she had no alternative but to sign this particular case, the Court reviewed the arbitration agreement. In order to Global Briefing The distinction between voluntary the context in which the athletes signed make a living through the professional The impact of The Belt and arbitration and forced arbitration the arbitration clauses and attempted to practice of skating, she had to accept the Road Initiative on investment ascertain the degree to which they were arbitral clause. So the Court in this case arbitration The European Court of Human Rights truly free to do what they did. proceeded to verify whether the CAS “What’s in a name?”: NAFTA has traditionally distinguished between proceedings met all the requirements to USMCA and what this “voluntary arbitration”, which derives In the case of the footballer (Mr Mutu), that flow from article 6. change means for investment protection from the free consent of the parties, on the Court concluded that the arbitration the one hand, and “arbitration imposed was voluntary. First, the contractual The Court, however, was not fully by the law”, on the other. The distinction clause actually permitted the athlete persuasive when it reasoned how it had In Focus Cultural Heritage is relevant to determine whether to choose to file a suit in court, instead arrived at its conclusions regarding the Considerations in the rights guaranteed by article 6 of of arbitrating the dispute. The Court, satisfaction of these requirements, as we International Investment the Convention apply to arbitration. moreover, maintains that even if it will see next. Arbitration According to the Court, if the arbitration is true that large clubs are powerful Smart Contracts and falls under the “voluntary” category, enough to force the players to subject A tribunal established by law International Arbitration:Friends or Foes? the rights mentioned in article 6 may future disputes to arbitration, there is be understood to have been waived, no evidence that smaller clubs will be According to the Court, if the arbitration The Achmea decision: provided the waiver is unequivocal. in a similar position. Thus, with regard is voluntary, there is no need for the significant uncertainties linger In contrast, where the arbitration is to the footballer, the Court did not arbitral tribunal to be established by “imposed by the law”, all the guarantees examine whether all article 6 rights law, since this requirement is actually Investment Arbitration: that appear in article 6 must extend to had been satisfied. The only exception waived by the parties. Indeed, by Contact Lawyers the arbitral proceedings. This includes is the right to an independent and resorting to arbitration, the parties the right to a public hearing. impartial tribunal. In a conceptually give up their right to file a lawsuit in a unclear move, the Court considered regular court established by law. If, in In the Mutu and Pechstein case, that, because Mr Mutu had recused the contrast, the law imposes arbitration on the Court refined this distinction. It arbitrator chosen by Chelsea, he had the parties that interact in a particular now holds that an arbitration may not waived his right to an independent field, the arbitral tribunals that are be understood to be “forced” even if and impartial tribunal. entrusted with the adjudicative function www.uria.com 4