I. Introduction
The effectiveness of international arbitration ultimately depends on one critical factor: the ability of the successful party to enforce the award. Regardless of the complexity of the dispute, the expertise of the tribunal, or the sophistication of the arbitral process, an arbitral award has little practical value if it cannot ultimately be recognised and enforced by national courts.
The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) was designed precisely to address this concern. By establishing a uniform framework for the recognition and enforcement of foreign arbitral awards, the New York Convention sought to ensure that final and binding awards would circulate across jurisdictions with minimal judicial interference.[1] The grounds for refusing enforcement were intentionally drafted as limited exceptions.
Yet enforcement disputes continue to arise. Domestic courts occasionally invoke public policy, jurisdictional objections, procedural defects or other grounds to refuse enforcement. In some cases, these objections reflect legitimate concerns recognised by Article V of the New York Convention, such as defects affecting the validity of the arbitration agreement, due process concerns, excess of jurisdiction, irregularities in the arbitral process, or violations of public policy.[2] In others, however, they effectively deprive award creditors of the economic value of a final and binding award.
The question that arises is whether such interference is merely an issue of arbitration law or whether it may also engage fundamental rights protected under international human rights instruments.
While most of the European Court of Human Rights’ (“ECtHR”) jurisprudence concerning arbitration has developed under Article 6 of the European Convention on Human Rights (“ECHR”) and the right to a fair trial, the ECtHR has increasingly examined arbitration-related disputes through the lens of Article 1 of Protocol No. 1 (Protection of Property) to the ECHR.[3] Over the last three decades, it has gradually developed a jurisprudence addressing this question. Although the ECtHR has never presented its decisions as a comprehensive doctrine on arbitral award enforcement, its case law reveals a trend. Beginning with legislative interference with arbitral awards, moving through non-enforcement and procedural deficiencies in enforcement proceedings, and culminating in the recent judgment in BTS Holding A.S. v. Slovakia, the ECtHR has progressively expanded the protection afforded to arbitral awards under Article 1 of Protocol No. 1.
II. The Starting Point: Stran Greek Refineries and Stratis Andreadis v. Greece
The foundation of the Court’s approach can be traced to its landmark judgment in Stran Greek Refineries and Stratis Andreadis and Stratis Andreadis v. Greece (“Stran Greek Refineries”), dated 9 December 1994.[4]
The dispute arose out of a refinery construction project and ultimately resulted in an arbitral award rendered against the Greek State.[5] The award was final, binding and enforceable under the applicable contractual framework. However, while judicial proceedings concerning the award were still pending, the Greek legislature enacted a law that retrospectively invalidated the arbitration clause, deprived the arbitral tribunal of jurisdiction, rendered the award ineffective and effectively terminated the pending proceedings.[6]
The ECtHR found that such legislative intervention violated both Article 6 of the ECHR and Article 1 of Protocol No. 1.[7]
From an arbitration perspective, the judgment established an important principle: a final arbitral award can constitute a “possession” under the ECHR.[8] Once a party obtains a final and enforceable award, the State cannot arbitrarily deprive that party of the benefit of the award through subsequent intervention. State action designed to eliminate that right amounted to interference with the applicants’ right of property.[9]
Importantly, the ECtHR did not treat the dispute merely as a procedural disagreement concerning arbitration. By treating the monetary entitlement arising from the arbitral award as a protected possession, the ECtHR effectively recognized that the economic value embodied in a final award is protected under Article 1 of Protocol No. 1.[10]
At this case, however, the ECtHR was dealing with a relatively extreme situation involving direct legislative interference. The more difficult question was whether similar protection would extend to situations where the obstacle to enforcement arose not from legislation, but from failures within the enforcement process itself.
III. From the Award to Its Enforcement: Regent Company v. Ukraine
The Court took an important step in that direction in Regent Company v. Ukraine (“Regent Company”), dated 3 April 2008.[11]
The case concerned an award rendered by the International Commercial Arbitration Court at the Ukrainian Chamber of Commerce and Industry.[12] Although enforcement proceedings had been initiated, the award remained unenforced for years due to a combination of enforcement difficulties, insolvency proceedings and legislative measures imposing restrictions on the forced sale of state-owned assets.[13]
Although Regent Company is often discussed as part of the ECtHR’s broader non-enforcement jurisprudence in relation to Article 6 of the ECHR, it represents also an important development in terms of protection of property. In Regent Company, the ECtHR’s focus shifted from the formal existence of the arbitral award to its practical effectiveness. The underlying concern was not limited to whether the award remained legally valid, but whether the award creditor could actually enjoy the economic benefit that the award was intended to confer.[14] Unlike Stran Greek Refineries, the arbitral award itself was never invalidated. The issue was the State’s prolonged failure to ensure effective enforcement.
The case demonstrated that the protection afforded by Article 1 of Protocol No. 1 extends beyond the mere existence of a legal entitlement. A creditor who holds a final and enforceable award must also be able to derive practical benefit from it. Where enforcement is frustrated for prolonged periods through state-created obstacles, the economic value represented by the award risks becoming purely theoretical. The judgment therefore shifted the focus from the arbitral award itself to the effectiveness of the enforcement process.[15]
IV. State’s Positive Obligation to Enforce: Kin-Stib and Majkić v. Serbia
An important intermediate step in the ECtHR’s jurisprudence can be found in Kin-Stib and Majkić v. Serbia (“Kin-Stib”), dated 20 April 2010.[16] The case concerned the partial non-enforcement of an arbitral award rendered by the Foreign Trade Arbitration Court of the Yugoslav Chamber of Commerce in favour of the applicants.[17] While part of the monetary obligations imposed by the award had been satisfied, the domestic authorities failed to secure the full execution of the award despite lengthy enforcement proceedings.[18]
The ECtHR began its analysis by reiterating the principle under Article 1 of Protocol No. 1: a claim may constitute a protected possession where it is sufficiently established and enforceable.[19] It then expressly extended this reasoning to arbitral awards, observing that it is the State’s responsibility to make use of all available legal means in order to enforce a binding arbitral award and to ensure that the enforcement system operates effectively “both in law and in practice”.[20]
Applying these principles, the ECtHR found that the Serbian authorities had failed to take the necessary measures to secure full enforcement of the award and had not provided convincing reasons for that failure.[21] Accordingly, it concluded that the partial non-enforcement of the arbitral award amounted to a violation of Article 1 of Protocol No. 1.[22]
From the perspective of the ECtHR’s evolving arbitration jurisprudence, Kin-Stib is significant because it confirmed that Article 1 of Protocol No. 1 imposes positive obligations on States to ensure that effective mechanisms exist for its enforcement. In that respect, the case foreshadowed the ECtHR’s emphasis later in BTS Holding v. Slovakia[23] on the practical effectiveness of enforcement rather than the mere formal existence of an arbitral award.
V. Procedural Fairness in Enforcement Proceedings: Mont Blanc Trading and Antares Titanium Trading Ltd v. Ukraine
Alongside its developing Article 1 of Protocol No. 1 jurisprudence, the ECtHR has also emphasized that proceedings concerning the recognition and enforcement of arbitral awards must comply with the procedural guarantees of Article 6 of the ECHR in Mont Blanc Trading Ltd and Antares Titanium Trading Ltd v. Ukraine (“Mont Blanc”), dated 14 January 2021.[24]
The dispute concerned a London Court of International Arbitration award.[25] The applicants sought enforcement of the award in Ukraine while parallel proceedings concerning jurisdiction and the validity of the underlying agreements were ongoing before Ukrainian courts. The domestic courts ultimately refused enforcement and issued a series of decisions adverse to the applicants.[26]
What makes Mont Blanc particularly interesting is that the ECtHR’s focus was not primarily on the substantive correctness of the refusal to enforce the award. Instead, it concentrated on the fairness of the proceedings themselves. The ECtHR identified significant procedural deficiencies, including the applicants’ absence from a crucial hearing due to failures of notification and the domestic courts’ failure adequately to address arguments that were central to the dispute.[27]
Unlike in Stran Greek Refineries, Regent Company and Kin-Stib, the ECtHR did not find that the applicants had suffered a separate interference with their property rights. The judgment suggests that not every unsuccessful attempt to enforce an arbitral award will automatically engage Article 1 of Protocol No. 1.[28] In Mont Blanc, the ECtHR considered that the issues raised by the applicants were more appropriately addressed through the procedural guarantees of Article 6, focusing its analysis on the fairness of the domestic proceedings rather than on a distinct interference with property rights.
The importance of Mont Blanc lies in the recognition that the enforcement proceedings relating to arbitral awards must comply with the procedural guarantees of Article 6.[29] Accordingly, procedural deficiencies that undermine the ability of an award creditor to defend its position may ultimately affect the practical enjoyment of the property rights represented by the award, particularly where they result in judicial determinations that are arbitrary or manifestly unreasonable for the purposes of Article 1 of Protocol No. 1.[30]
VI. The ECtHR’s Recent Approach: BTS Holding v. Slovakia
The ECtHR’s most significant arbitration-related judgment to date is undoubtedly BTS Holding A.S. v. Slovakia (“BTS Holding”), dated 30 June 2022.[31]
The dispute arose from the privatization of Bratislava Airport and resulted in a final ICC arbitral award rendered in Paris in favor of BTS Holding.[32] The award ordered the Slovak National Property Fund to pay approximately EUR 1.9 million together with interest. The award became final and binding and was never challenged before the French courts. Nevertheless, Slovak courts refused its enforcement. They relied on a variety of grounds, including alleged defects in the arbitration agreement, formal deficiencies in the award, public policy concerns and considerations relating to public finances.[33]
The ECtHR found that several of the reasons advanced by the domestic courts lacked a convincing legal basis. It criticized the courts’ treatment of the arbitration agreement, rejected the reliance on formal requirements that were inconsistent with the applicable legal framework and dismissed arguments suggesting that enforcement should be refused because payment would ultimately affect public order.[34]
Most importantly, the ECtHR held that the refusal to enforce the award constituted unjustified interference with the applicant’s possessions under Article 1 of Protocol No. 1.[35]
The significance of BTS Holding does not lie in the creation of an entirely new principle. Rather, the judgment crystallizes principles that had been emerging in the Court’s earlier case law for decades. Stran Greek Refineries established that arbitral awards may give rise to protected property interests. Regent Company demonstrated that the effectiveness of enforcement also matters for protection of property. Kin-Stib confirmed that States have positive obligations to ensure that effective mechanisms exist for enforcement. Mont Blanc confirmed that enforcement proceedings themselves must satisfy the ECHR standards.
The decisive contribution of BTS Holding lies in the Court’s explicit recognition that an arbitrary refusal to enforce a final and binding arbitral award may itself violate Article 1 of Protocol No. 1.[36]
Unlike Stran Greek Refineries, where the interference originated from legislation, or Regent Company, where the problem arose from ineffective enforcement, BTS Holding concerned a direct judicial refusal to enforce an award. The ECtHR found that the reasons relied upon by the Slovak courts lacked a sufficient legal basis.[37]
The judgment therefore confirms that Article 1 of Protocol No. 1 protects not only the existence of arbitral awards and not only the effectiveness of enforcement mechanisms but also award creditors against arbitrary judicial decisions that prevent enforcement altogether. In that sense, BTS Holding represents the culmination of a line of jurisprudence that began with Stran Greek Refineries more than thirty years earlier.
VII. Conclusion
From Stran Greek Refineries to BTS Holding, the ECtHR has gradually developed a coherent approach to the protection of arbitral awards under Article 1 of Protocol No. 1. What began as protection against legislative interference has expanded to encompass non-enforcement, procedural fairness in enforcement proceedings and, ultimately, arbitrary judicial refusals of enforcement.
For parties to arbitration, this emerging line of authority provides an additional layer of protection where domestic courts depart from internationally accepted enforcement standards. For states, it serves as a reminder that the discretion afforded by the New York Convention is not unlimited. Enforcement defenses may be available, but they must be applied consistently with the ECHR’s broader commitment to legal certainty, fairness and the protection of property rights.
This does not mean that every refusal of enforcement will violate the ECHR. The New York Convention continues to recognize legitimate grounds for refusing recognition and enforcement. States remain entitled to deny enforcement where those grounds genuinely exist.[38]
The practical message of the ECtHR’s jurisprudence is therefore straightforward. A final arbitral award is more than a procedural outcome. It is increasingly recognized as a protected economic interest, and the ECHR may intervene where state conduct deprives an award creditor of the ability to enforce the award.
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[1] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958), UNCITRAL, 2015, Introduction, Objectives.
[2] New York Convention, art. V.
[3] Ursula Kriebaum, “Chapter 66: The European Court of Human Rights and Arbitration”, in Stefan M. Kröll, Andrea Kay Bjorklund, et al. (eds), Cambridge Compendium of International Commercial and Investment Arbitration (2023), p. 1981.
[4] ECtHR, Case of Stran Greek Refineries and Stratis Andreadis v. Greece (Application no. 13427/87), 9 December 1994.
[5] Id., paras. 12-14.
[6] Id., paras. 20-23.
[7] Id., paras. 50, 75.
[8] Id., paras. 58-62. For a broader overview of the ECtHR’s interpretation of the concept of “possessions” and its application to established monetary claims and judgement debts, see European Court of Human Rights, Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights – Protection of Property p.12.
[9] Id., paras. 66-67.
[10] Id., paras. 74-75.
[11] ECtHR, Case of Regent Company v. Ukraine, (Application no. 773/03), 3 April 2008.
[12] Id., para. 3.
[13] Id., paras. 9-32.
[14] Id., paras. 59-62.
[15] See also ECtHR, Case of Iliria S.R.L. v. Albania (Application no. 31011/09), 5 March 2024, where the ECtHR found a violation of Article 6 due to excessive delays in proceedings relating to the recognition and enforcement of an international arbitral award.
[16] ECtHR, Case of Kin-Stib and Majkić v. Serbia, (Application no. 12312/05), 20 April 2010.
[17] Id., paras. 11-12.
[18] Id., paras.13-27.
[19] Id., para. 83.
[20] Id. para. 83.
[21] Id., para. 84.
[22] Id., para. 85.
[23] See Section VI. Below.
[24] ECtHR, Case of Mont Blanc Trading Ltd and Antares Titanium Trading Ltd v. Ukraine (Application no. 11161/08), 14 January 2021.
[25] Id., paras. 9-15.
[26] Id., paras. 43-49.
[27] Id., paras. 68-74, 81-85.
[28] Id., para. 101.
[29] Id., paras. 73, 85.
[30] Id., para. 101.
[31] ECtHR, Case of BTS Holding, A.S. v. Slovakia (Application no. 55617/17), 30 June 2022.
[32] Id., paras. 1-2.
[33] Id., paras. 23-29.
[34] Id., paras. 66-70.
[35] Id., paras. 72-73.
[36] Id., para. 65.
[37] Id., paras. 67-70.
[38] Mont Blanc, para.101. See mutatis mutandis ECtHR, Case of Zagrebačka Banka D.D. v. Croatia (Application no. 39544/05), para. 250.
