(TRANSLATION) THE E'AC'TS The facts, as submitted by the applicant, are not disputed by the resoondent Government, and may be summairised as follows . a. Background to the case The applicant is a Colombian national of Czechoslovak origin. He was borzi in 1923, is an economist by profession and lives at L . in the canton of Vauil . He is represented before the Comtnission by Mr . Rudolf Schaller, a lawyer practising in Geneva . 93 In 1963 and 1968 the applicant and Mr . X. concluded a contract setting up a'i limited partnership for the manufacmre and sale of instant drinks in powder and cube l' form (T. products). This was done by means of subsidiaries possessing their owrt legal personality, pa rticularly O . S.A., a limited company established in 1964 whose ~ share capital was jointly owned by the applicant (45 %) and Mr . X . (55 %), though ; they were ensured the same voting rights by a system of preference shares . Being : on an equal footing, the two pa rtners appointed Professor H . as a mediator (TreuhBn a der), who was to unde rtake, in the event of a dispute, to act exclusively in thee interests of O. S.A. From 1964 to 1969 the manufacture of products designed for export by O . S. AJ was handled by another company, 50% of whose share capital was held by Mr . X . In the matter of invoicing to O., the manufacturing company was required under a contract concluded in 1964 (referred to as the 1964 scheme) to apply a price fixing system based on the value of packaging materials, plus 20% profit, plus actual adnilnistrative expenses arising from production for expo rt. In 1969, however, Mr. X. took over the manufacture of T . products com~ pletely, while nevertheless undertaking to abide by the 1964 invoicing scheme : Mr. X ., being the owner of the brands, manufacturing processes and receipts relat', ing to the products concerned, in actual fact exercised a monopoly, since he had become the sole owner of the only company manufacturing those products and wa 's consequently able, through the prices he invoiced to the exporting company O., run by the applicant, to influence the profits made by the latter company . In 1974 the applicant, on behalf of O ., applied to the district court for an expert opinion to determine whether Mr . X.'s manufacturing company was over-charging for the products it delivered to O . for export . The court expert drew up four report's between 30 October 1974 and 20 June 1975, concluding that between 1971 and 1973 Mr. X. had unduly increased his prices by an amount of approximately 900,000 SF in breach of the 1964 price-fixing scheme . In view of the expert's conclusions, the applicant lodged a criminal complaint of fraud against Mr . X. and the management of the manufacturing company on 6 February 1975 . However, the accused were discharged on 25 December 1975. Iâ March 1975 Mr. X. applied to the cantonal court for the dissolution of the limited partnership on good grounds, while offering, however, to purchase the applicant's shares in accordance with the contractual provisions they had agreed upon in 1968 . On 23 August 1975 the applicant formally agreed to his partner's proposal for thé price of his shares to be fixed on a contractual basis by a firm of chartered accountants within three months and for the price to be paid on 31 December of the yeâr in which the time-limit for termination of the contract expired, i .e. on 31 Decem~ ber 1975. 94 Despite theapplicant's acceptance of the offer of purchase, Mr . X., following the termimation of the proceedings arising from the applicant's criminal complaint, threatened to discontinue outright his campany's deliveries to O . and dissolve the latter unless the applicant agreeâ to arbitration to fix the price of his shares in O ., the company they both owned . On 7 January 1976 ttte applicant concluded an agi-eemeni : with Mr. X . under the terms of which he sold him his shares in O . S.A. while retaining a charge over the shares until payment of the price to be fixed by an arbitration tribunal . As from 7 January 1976 the applicant also relinquished his duties as administrator o-F O . S.A . The two partners discharged each other of responsibility for the balance of all accounts and relinquished all clai.ns and clamages againsi each o :her apart from those to be determined by the arbitration tribunal . In addition, the parties undertook not to appeal against the order terminating the proceedings on 25 December 1975. Lastly, the applicant wv.s to receive a downpayment of 580,000 SF on the prospective price cf his shares . b. Arbitration proceeding s On 7 January 1976 ttie par.ies signed an arbitration agreement whica detined the arbitrators' assignmenr as follows (Article 1) . to fix the price to be paid by Mr. X. to the applicant for the pnrchase of the latter's shares, to determine arrangements for payment of the price decided upon and to express an opinicn on the guarantees requested by the applicant . Article 3 of the agreement provided that the arbitration tribunal would be based in Isusanne and would establish the procedure by agreement with the parties' counsel, who would be entitled to argue their case by submitting memorials and pleadings, producing documents and arranging for the hearing of witnesses. The arbitration tribunal's task was to be completed by 30 June 1977. The purchase price proposed by Mr . X. was approximately 400,000317, while the arnount requested by the applicant veas 3,500, 000 SF. The agreement refers to the Intercantonal Arbitration Agreement (Concordat intercamonal sur l'arbitrage) of 27 March 1969 . The Intercantonal Agreement, whicti applies to all proceedings before an arbitration tribunal whose headquarters lie the territory of one of the cantons party to the Agr^ement, does not affect : "the application of arbitration rules adopted by private or public institutions, arbitration settlements or arbitration clauses, in so l'ar as they do not contravene mandatory provisions of the present Agreement ." (Article 1 para . 2) . [n particular, the parlies ar . free to choose the headquarters of the arbitration triburial (Article 2), to conclude the arbitration agreement (Article 4), to determine the subject of arbitration unless the matter falls exclus~vely within the jurisdiction of a State authority (Article 5), to appoint the arbitrators (Article 10), m fix the duration of the arbitrators' assignment (Article 16) and to determine the procedure to be followed 1Article 24) . 95 The mandatory provisions of the Intercantonal Agreement concern, in particular, the exclusion of lawyers, which is prohibited (Article 7), the appointment of arbitrators by the courts in the event of a disagreement between the parties (Article 12), the procedure applying in the absence of an agreement (Article 24 para . 2), the right to a hearing (Article 25), the rules governing deliberations and the content of awards (Articles 31 and 33) and cases in which proceedings are taken to have an arbitral award set aside (Article 36) or reviewed (Article 41) by a court . On 27 May 1977, after several exchanges of memorials, the arbitration tribunal held its first sitting . It consisted of Mr . F., a federal judge, as President, and Mr . L., a federal judge, and Mr . R ., a chartered accountant, as arbitrators. The sitting took place, as did the following sittings, in the offices of the Federal Court in Lausanne ; a registrar of the Court acted as Secretary to the arbitration tribunal. At this sitting the arbitration tribunal decided that its assignment, which was scheduled to last 18 months, would be extended until three months after the end of the proceedings. At the sitting on 26 August 1977 the arbitration tribunal decided, with the agreement of the parties, to rule by partial award and established the points to be covered by the first award . On 2 November 1977 the arbitration tribunal notified the parties of the operative part of the first partial award, together with a proposal for a settlement under which the applicant would receive a total amount of 1,280,000 F, including the down-payment. Both parties rejected the proposed settlement . On 6 March 1978 the arbitration tribunal rejected a request by the applicant for receipt of a down-payment. However, the reasoned partial award was not made known to the pa rties until 17 April 1978 . The applicant had proposed in March 1978 that the pa rties should undertake not to appeal against the partial award, but the offer had been refused. On 17 May 1978 Mr. X. appealed to the cantonal court against the arbitration tribunal's pa rtial award. The applicant then also filed an appeal. On 30 January 1979 the cantonal cou rt partly set aside the partial award of 2 November 1977 . As a result of a public law appeal filed by Mr. X. against this decision, th ePresidentofthearbitrationt ribunal refused to resume the proceedings, although the appeal did not have suspensive effect . 96 On 26 November 1979 the applicant again applied, as in his initial application, for receipt of a down-payment on the price . On 3 March 1980 the arbitration tribunal refused to decide on the application, decided not to give any further partial awards and allowed the opposing party to request a firrther expert opinion. On 14 April 1980 Mr. X. foimally applied for a further expert opinion. Despite opposition, from the applicant, who considered the opirion pointless and likely to cause delary, the cost of the expett opinion, half of which was to be borne by each party, was set at 40,000 SF . On 9 Febntary 1981 the arbitration tribunal, which had asked the expert a number of questions, rejected the questions prepared by the applicant . On 1 June 1981 the applicanr again requested that the arbitration tribunal decide by partial award on his application for a down-paymetn :. On 30 October 1981 the applicant applied to the'daud cantonal court for an interinr measure under Article 26 of the Agreemen¢ on Arbitration adopted by the Confe_rencz of Cantonal Underseeretaries for Legal Affairs (Conférence des directeurs cantonaux de la justiee) on 27 March 1969 and approved by the Federal Council on 27 August 1969 . However, his application was rejected on 1I December 198 1 . .On2November1981thea .pplicani filed a further application for an interim measure in addition to the charge retained over his shares . When the investigating judge dealing with tlre matter r .fused to order the measure requested, the applicant liled an appeal which was dismissed by the cantonal court on :i April 1982 . A public law appeal against this decision was also dismissed by the Federal Court by judgment of 14 September 1982. On'l.9 September 1982, i.e. two years after the expert opinion was ordered, the experts filed the report requested by order of the arbitration tribunal ori 15 October 1980. On 12 November 1982 the opposing party applied for a supplementary expen opinicn. On 23 December 198`<: the applicant again applied to the aroitration triounal for a down-payment The tribmral dicl not decide on the application, as it had not decided on that ol 1 Juna 1981 . On 24 January 1983 die arbitration i :ribunal held a sitting in the preserice of the experls . 97 On 25 March 1983 the arbitration tribunal rejected a series of applications tô produce evidence made by the applicant (hearing of witnesses, seizure of accounts). It also refused to allow the applicant to ask the experts questions . On 8 April 1983 the applicant filed a public law appeal with the Federal Court on the grounds that this was a denial of justice ; the appeal was dismissed as mani ~ festly inadmissible on 16 May 1983 on the grounds that all the cantonal remedies had not been exhausted. On 16 June 1983 the arbitration tribunal announced the termination of thé preparatory proceedings and summoned the parties to a hearing on the merits on' 28 September 1983 . On 30 August 1983 the applicant complained to the Vaud cantonal court of undue delay by the arbitration tribunal, relying on Article 17 of the Intercantona lAgrementonArbitration . On 17 November 1983 the cantonal court dismissed the application as mani ' festly ill-founded, on the grounds that no fault had been commi tted by the arbitrators] On 25 November 1983 the arbitration tribunal again refused to decide on thé applicant's applications for a down-payment . The arbitration tribunal's hearing on the merits scheduled for 28 September' 1983 was postponed to 23 November 1983, then to 9 January 1984. It actually took place on 9 Janua ry 1984. At the hearing the applicant again requested that witnesses` be heard, but the request was turned down . On 9 February 1984 the first Civil Chamber (cour civile) of the Federal Court,{ ruling on the public law appeal filed by the applicant against the cantonal court judg-1 ment of 17 November 1983, rejected the appeal as ill-founded . The Federal Court ruled that Article 6 para . 1 did not apply to an arbitration tribunal because the latter I was not established by law but by the parties, who were free to appoint the members of the tribunal. i On 29 March 1984 the arbitration tribunal gave its final award, which v served on the parties on 2 April 1984 . Under the terms of the award the applia was to receive 193,000 SF, to be paid by the opposing party with interest at 5 per annum as from January 1976 . The costs of the arbitration proceedings amouni to 120,000 SF in fees and expenses of the three members of the arbitration tribu : and approximately 38,000 SF for the expert opinion. The applicant was ordered pay the opposing party 35,000 SF in costs and pay 3/5 of the fees and costs of bi the arbitration tribunal and the experts . c. Subsequent development s On 30 April 1984 the applicant applied to the Vaud cantonal court to set the award. The appeal was dismissed on 5 June 1985 . 98 On 29 October 1985, following a public law appeal agaiast the judgment of 5 June 19135, the applicant applied to the President of the Federal Court chsdlenging all the federal judges and their substitutes . The ground for the application was the fact that two of the arbitrators wlto had given the arbitrsd award of 29 March 1984 were federal judges . By order of 4 December 1985 the President of the Fedcral Court set up an extraordiuary Chamber of the Fecleral Court consisting oPfive presidents of the highest courts of cardons not aDncerued by the case, chosen by loi . 13y judgment of 6 March 19'36 the extraordinary Chamber of the Federal Court rejecuA ihe application cltallenging the Federal Couit lodged by the applicant together with his public law appeal against the judgmeut of 5 June 1985 . On 22 July 1986 thr, public law appeal was dismissed by the First Civil Chamber of the Federal Court in accordance with Article 92 para . I of the Act on the Organisation of the Courts (loi sur l'organisation judiciaire) . COMPLAINTS 'rhe applicant complai.ns of the allegedly exces:;ive ]ength of the arbitration proceedings, which began on 7 January 1976 and ended with the final award on 29 March 1984 . He relies on Article 6 para . I of the Convertion . The length of the proceedings is admittedly due to the delaying tactics used by his opponent who, accordirig to the applicant, acted in bad faith . However, according to the applicant . the arbitration tribunal tolerated ihe opposing party's mano:uvres instearl of putting an end to them in the interests of a speedy settlement of the disputc. The preparatory investigation ended only on ti June 1983, i .e. aficr tnore than sever. years of proceedings . Ttte arbitrators agreed in 1980 . after four years of proceediings, to order a 6fth expert opinion, which was pointless, since four expert opinians had already been provided by accountants prior to tt,e arbitration proceedings . Ir, addition, the third artitrator was a chanered accountant . THE LtW The applicant eotnplains of the allegedly excessive length of the proceedings to which he was party before au arbitration tribunal . H:e relies on Article 6 para . I of the Convention, which provides that : "In the determination of his civil rights and obligations or of any criminal charge against him, everyane is entitled to a fair and pt :blic hearing within a reasonable time by an independent and impartial tribunal established by la w 99 The Govetnment consider that the arbitration proceedings do not fall within the' scope of Article 6 para.l, since the parties, of their own free will, validly entrustedl to arbitrators the determination of their civil rights and obligations . The applicantl may rely on Article 6 para . I only in so far as Statejudicial authorities were requiredl to intervene under Article 17 of the Intercantonal Agreement on Arbitration . The! Government also consider that the applicant did not exhaust the domestic remedies because, at the time when the application was introduced, the appeal against the arbitral award was still pending and, furthermore, the applicant had not yet made use of the remedy provided for by the Agreement on Arbitration to speed up the proceedings . The applicant considers that Article 6 para . I applies in the present case and that he exhausted the domestic remedies by denouncing the undue delay in th earbitrationprocedingstothecantonalcourtandFederalCourt,whichdismised ! his applications. The Commission notes that the proceedings of whose excessive length the applicant complains are arbitration proceedings which began when the dispute wasj laid before the arbitrators following the signature of an arbitration agreement by the parties on 7 January 1976 . The present case does not concem compulsory or forced arbitration, as in Applications Nos . 8588/79 and 8589/79, in which the Commission found that : . . . A distinction must be drawn between voluntary arbitration and compulsory arbitration. Normally Article 6 poses no problem where arbitration is entered ~ into voluntarily (cf. Application No . 1197/61, Yearbook 5 pp . 88, 94 and 96) . If, on the other hand, arbitration is compulsory in the sense of being required by law, as in this case, the parties have no option but to refer their dispute to i an arbitration board, and the board must offer the guarantees set forth in Article 6 para . 1." (Bramelid and Malmstrüm v . Sweden, Comm. Report 12.12.83, para. 30, D .R . 38 pp. 18, 38). ~ In the present case arbitration was not required by law . In signing an arbitration agreement, the applicant waived his right to bring the dispute before an ordinary court. In addition, the right of access to a national court - a guarantee implicitly arising from Article 6 para. 1(cf. Eur. Court H .R., Golderjudgment of 21 February 1975, Series A no . 18, para . 36) - does not, in civil matters, entail an obligation to apply to a national court for settlement of a pecuniary dispute between private individuals . In the Deweer case, the Court, considering that the applicant "waive dhisrightohavecasedealtwithbythetribunal",notedthat : "In the Contracting States' domestic legal systems a waiver of this kind i sfrequentlyencountered . . . in civil matters, notably in the shape of arbitration i clauses in contracts . . . the waiver, which has undeniable advantages for the 100 individual concemed as well as for the administration of iustice, does not in principle offend against the Convention ." (cf. Eur. Court H R., Deweer judgment of 27 Febmary 1980, Series A no. 35, para.49). The Court nevertheless specilied that a condition of the waiver of one's right to have one's case dealt witti by a court vias absence of constraint (ibid .). that : In the above-mentioned Appl'cation No . 1197/61 the Comrnission alse found . whereas the inclusion of an arbitration clause in an a¢reement between inclividuals amounts legally lo partial renunciation of the exercise oP these rights defined by Article 6 para. 1 ; whereas nothing in the Cext of that Article nor of any other article of ttie Convention explicitly prohibits such rr.nunr_iation ; whereas the Contmission is nat entitled 2D assume that the Contracting States, in accepting the obligations arising under Amcle 6 para . 1, intended to prcvent persons coming under their jurisdiction from entrusting the settlement of certain matters to arbitrators ; whereas the di~puted arbitration clause might have been regarded as contrary to the Convenlion if X . hjd signed ic uncler constraint, which was riot the case" (No . 1197i61, Dec . 5 .3.62, Yearbook: 5 pp. 89, 95) . It follows that an arbitration agreement entails a renunciation of the exercise of the rights secured by Articile 6 pa ra . 1, provided that the agreement was nol sign.ed under c.uress. The applicant claims that arbitration was imposed on him by the opposing party by means of threats . This claim cannot be examined by the Commission because the domestic remediea were rnot exhausu;d on this point . The applicant did not malce use of any remedies Intended to establish that his consent was vitiat :ed by duress . The Commission nevertheless considers that, in order to answer the question of whether the guarantees secured by Artic] .e 6 apply, account must be taken not oily of the arbitration agreement between the parties and the namre of the private arbitration proeeeding;s, but also of the legislative framework providing for such proceedings . In the present case the framework is the Intercantonal Agreement on Arbitration of 27 March 1969, to which the arbitration agreement in fact refers . 7'he Intercantorial Agreement, which applies to all proceedings beFore an arbitration tribunai whose headquarters lie in the territory of one of the cantons party to the Agreentent, does not affect ~ "Ihe application of arbitration rules adopted by private or public institutions, aibitration settlements or arbitration clauses, insofar as they do not cor .travene mandatory provisions of the present Agreement" (.4rticle I para. 2) . 101 The subsidiary nature of State intervention in arbitration proceedings is thus made clear by the Intercantonal Agreement itself. In particular, the parties are free to choose the headquarters of the arbitration tribunal (Article 2), to conclude the arbitration agreement (Article 4), to determine the subject of arbitration unless the matter falls exclusively within the jurisdiction of a State authority (Article 5), to appoint the arbitrators (Article 10), to fix the duration of the arbitrators' assignment (Article 16) and to determine the procedure to be followed (Article 24) . The mandatory provisions of the Intercantonal Agreement concem, in particular, the exclusion of lawyers, which is prohibited (Article 7), the appointment of arbitrators by the courts in the event of a disagreement between the parties (Article 12), the procedure applying in the absence of an agreement (Article 24 para . 2), the right to a hearing (Article 25), the rules governing deliberations and the content of awards (Article 31 and 33) and cases in which proceedings are taken to have an arbitral award set aside (Article 36) or reviewed (Article 41) by a court. In view of the above information concerning the nature of the voluntary arbitration procedure and the legislative framework, the Commission considers that the State cannot be held responsible for the arbitrators' actions unless, and only insofar as, the national courts were required to intervene. As regards the guarantee of a speedy hearing embodied in Article 6 para. 1, which is the only complaint to be considered in the present case, undue delay in arbitration proceedings can be complained of before th e courts under Article 17 of the Intercantonal Agreement, which provides that "the parties may at any time apply to the judicial authorities provided for under Article 3 in respect of undue delay caused by the arbitration tribunal" . On 30 August 1983 the applicant sought the remedy provided for under this article. The respondent State may be responsible under the Convention in respect of the complaint concerning the length of the arbitration proceedings insofar as the applicant brought the matter before the courts and to the extent the cou rts can take steps to remedy the excessive length of the arbitration proceedings . The Commission also considers that, after filing this application and, following its rejection by the cantonal cou rt on 17 November 1983, a public law appeal to the Federal Court, the applicant exhausted the domestic remedies with regard to this complaint in accordance with Article 26 of the Convention . The Commission points out that the national courts were not required to deal with the case until the applicant applied to them, i .e. prior to 30 August 1983, on the ground of undue delay in the arbitration proceedings. It follows that they cannot be held responsible for the period prior to this application, which the applicant delayed bringing for more than seven and a half years . In addition, this application did not result in the dispute itself being transferred from the arbitration tribunal to the courts ; the dispute remained pending before the arbitration tribunal. The courts, once applied to, performed only a supervisory function. This supervision needed to 102 be exercised within a reasonable time . That was the case in [his instanee . The courfs -- the Vaud cantonal court and, on appeal, the Federal Court - ruled without delay in five tnonths and one week . AdrrLittedly, they did not consider it appropriate to uphold the applicani :'s appeal . However, the Commission notes that in actual fuct the arbitrators' final award was given less than seven rnonths after the matter was brought before the courts . The Commission accordingly finds that there is no appearance of a violation of Article 6 para . I by the respondent Government . It lollows that the application is manifestly ill-founded within the meaning of Article 27 para . 2 of the Convention . For these reasons, the Commissio n DECI.ARES THE APPLICATION INADMISSIBLE . 103