Alternative dispute resolution and article 6 ECHR. Right of access to an independent and impartial judge in Belgium from a comparative and human rights perspective.
Article 6.1 ECHR guarantees the right of access to an independent and impartial judge. The central research question is to what extent mechanisms of alternative dispute resolution (ADR) are compatible with this right.
For the purpose of this research, ADR is defined as all dispute resolution processes conducted by a neutral third party, in which the third party cannot impose a final decision on the parties (thus excluding arbitration). ADR is globally on the rise and both states and state courts often push parties towards ADR. This may result from a finding that ADR is a means to improve access to justice but can also be the result of less laudable reasons such as budgetary constraints. Some authors argue that ADR-mechanisms do not offer the same guarantees as state courts and that they undermine the right to a fair trial. This research seeks to establish whether that is indeed the case, focusing on parties’ right of access to an independent and impartial judge. The following four sub-questions will help to provide an answer to the central research question:
- Do ADR-mechanisms fall directly within the scope of Article 6.1 ECHR;
- Under which conditions can parties waive their rights under Article 6.1 ECHR in favour of ADR;
- Under which conditions can parties be obliged to attempt ADR;
- If a judge intervenes in ADR (e.g. in an attempt to reconcile the parties), how does the judge maintain its impartiality and independence under Article 6.1 ECHR.