Supreme Court Rules On Validity Of North Atlantic Treaty Organisation's Arbitration Clause In Light Of Article 6 European Convention On Human Rights

Author:Mr Quentin Declève
Profession:Van Bael & Bellis

On 27 September 2018, the Supreme Court (Hof van Cassatie/Cour de Cassation) handed down a judgment regarding the validity of an arbitration clause contained in a service agreement concluded between the North-Atlantic Treaty Organisation ("NATO") and one of its gardeners ("Mr. P") in 2007.

The arbitration clause at issue provided that any arbitrator appointed to hear a dispute between NATO and Mr. P had to be a national of one of NATO's Member States.

In 2010, NATO terminated the service agreement and Mr. P then brought an action for damages before the Belgian courts.

NATO challenged the jurisdiction of the Belgian court on the basis of (i) the arbitration clause contained in the gardening agreement; and (ii) Article V of the Agreement of 20 September 1951 on the status of the North Atlantic Treaty Organisation, National Representatives and International Staff, which provides that NATO enjoys immunity from legal proceedings.

Mr. P disputed NATO's jurisdictional challenge and argued that NATO could only invoke its jurisdictional immunity if it offered a suitable alternative forum to hear the dispute. However, in the case at hand, Mr. P argued that arbitration was not a suitable alternative forum since the arbitration clause violated Article 6 European Convention on Human Rights (the "ECHR") (read in combination with Article 1685, paragraph 1 of the Belgian Civil Procedure Code which provides that, "unless otherwise agreed by the parties, no one can be precluded from being appointed as an arbitrator by reason of its nationality").

Mr. P argued that by preventing nationals from non-NATO countries from being...

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