The Right to a Public Hearing in Arbitration in Light of ECtHR Judgments

Abstract

On 2 October 2018, the European Court of Human Rights (ECtHR) issued a decision in Mutu and Pechstein (hereinafter referred to as ‘Pechstein’) in which it found, inter alia, that the German speed skater Claudia Pechstein had the right to a public hearing based on Article  of the European Convention on Human Rights (ECHR) in relation to an arbitration before the Court of Arbitration for Sport (CAS). The CAS arbitration was based on an arbitration agreement signed by Pechstein during her registration for the 2009 World Speed Skating Championships. The rules of the CAS applicable at the time provided that a hearing is private unless both parties agree otherwise. Yet, Pechstein explicitly requested for a public hearing. When the request was not fulfilled and the award rendered after a hearing held in camera,Pechstein applied to set aside the CAS award in the Swiss Federal Supreme Court. After an unsuccessful challenge of the CAS award, Pechstein then filed an application to the ECtHR against Switzerland on the basis of a violation of Article ECHR.