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Ustavne procesne garancije u arbitražnom postupku
Galič, Aleš
The right to be heard and the right to advesary proceedings are some of the basic postulates of legal system in modern states of rule of law. That rights contribute to equality before law and respect ...of human dignity. Having in mind this concerns one of the fundamental constitutional guarantees, the righ to be heard must be guaranteed in arbitration proceedings as well as in litigations before courts-of-law. Indirectly, by means of contesting a court decision in connection with setting aside or recognition of arbitral awards the violation of that right in arbitral proceedings may be subject to revision of a constitutional court or the European proceedings may be subject to revision of a constitutional court or the European Court for Human Rights. The scope of that right is not restricted only to the issue of delivery in proceedings, but is laso relevant for the process of hearing of evidence. The constitutional court should scrutinize only violations of constitution. It should not become a mere court instance, which would judge it the substantive or procedural law were applied in accordance with law or if the facts were established correctly, so that any violation of law would at the same time mean the violation of the constitution. Such risk of transformation of the constitutional court to a kind of "superrevision" is even more expressed with respect to arbitral awards. One of the essential reasons for which parties from different states accept arbitration is exclusion of jurisdiction of state courts-of-law that might act in tavor of the domestic party. However, the advantage disappears if the award is subject to wide control of domestic courts-of-law and the constitutional court. The demand that the constitutional court respects the boundaries of its competence (Kognitionsgrenzen) is fundamental respect to arbitral awards. The contents of the right to be heard or the right to advesary proceedings is not new to arbitration proceedings. The significance of that right is undoubtedly recognized in modern arbitration proceedings, which is reflected in international conventions regulating arbitration proceedings national legislatures and rules of institutional arbitration. However, it concerns only the generally accepted minimum of guarantees that in essence do not prevent parties' autonomy or arbitrator's autonomy in determination of rules of procedure (for instance in the process of hearing of evidence) and on the other hand do not open too wide possibilities of court (including the constitutional court) interventional in arbitral awards.
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