In its recent judgment in the Beg S. Beyond an apparently typical case of conflict, this judgment is the culmination of jurisprudence that anticipated that the intrinsic waiver to jurisdiction when parties submit to voluntary arbitration does not amount to a blank waiver of all aspects of the right to a fair trial guaranteed by the ECHR.
The arbitrator accepted his appointment without disclosing these circumstances. After the arbitral tribunal deliberated, Beg challenged the arbitrator appointed by Enelpower on the same day in which he and the chairman signed and deposited a majority award.
The Chamber dismissed the challenge because a binding final award had already been handed down. Further attempts to challenge the arbitrator in the lower civil courts were also dismissed as a late challenge because a final award had already been agreed on the deliberation or signature date. The Rome Court of Appeal dismissed the request of annulment of the award, as did the Italian Court of Cassation because Beg had failed to prove the alignment of interests between the arbitrator and one of the parties to the proceedings, but the latter considered that Beg had in fact filed the challenge in time before the end of arbitration proceedings.
The Court found that article 6. The Beg case was not a case of mandatory or forced arbitration, in which case the full protection of article 6.
However, there was no leap to apply the ECHR between private parties. According to the Court, it was still a State, Italy, that committed the infringement and was thus liable because its courts βnot the Chamberβ had failed to exercise the powers granted by the Italian Code of Civil Procedure to annul an award that did not respect one of the rights guaranteed by Italian law in a voluntary arbitration, i.
