The Analysis of the Human Rights Approach Regarding the Exclusion of Setting Aside the Arbitral Award With Emphasizing on Procedure of the European Court of Human Rights

The right to a trial as one of the types of human rights has been emphasized in various international instruments and most countries' domestic laws and possibility of challenging a decision issued by dispute resolution authority is one example of a right to a trial. Considering relationship of this right to human rights, the validity of such an agreement is questionable. Regarding the arbitration, some regulations recognize the exclusion agreement about setting aside the arbitral award. An important question arises about whether this situation is contrary to the parties' right to a trial as one of the examples of human rights or not. This question has been examined in the current study and finally the present article concludes that in order to respect the human rights of the parties, the validity of said agreement is conditional on "being explicit", "freely" and "concluding after the award and knowing the reasons for the objection" and in case of violation of the principle of fair trial and lack of independency and impartiality in the arbitrator, the said agreement has no effect. In Iranian law, due to the lack of legal explicity and human rights considerations, only in the presence of all the above criteria, exclusion agreement about setting aside the arbitral award is valid and effective.