The ECHR and contractual provisions on dispute resolution

The right of access to court and the right to a fair trial are fundamental rights guaranteed in all democratic states. The basic ideas are that anyone is entitled to have a dispute heard by a court of law in a procedure that meets certain requirements, i.e., a fair trial, and that the State has a duty to make such judicial dispute-resolution procedures possible. One of the most fundamental legal provisions governing the right of access to court and the right to a fair trial is Article 6 § 1 of the European Convention on Human Rights (ECHR). However, one point of unclarity with respect to that Article is whether it encompasses a right for parties to a contract to make a voluntary and binding waiver of their right of access to court and their right to a fair trial (or, as those rights are often jointly referred to in ECHR contexts, their ‘right to a court’). That issue – whether the right to a court can be waived – is the subject of the present article.