Information Note on the Court’s case-law 59
December 2003
Transado-Transportes Fluviais do Sado, S.A., v. Portugal (dec.) - 35943/02
Decision 16.12.2003 [Section III]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Deprivation of property
Interpretation by an arbitration court of a contract of concession: Article 1 of Protocol No. 1 not applicable
Article 6
Civil proceedings
Article 6-1
Tribunal established by law
Inclusion of courts of arbitration in the notion of « tribunal »
The applicant company provided a river transport service on the basis of a concession contract. A clause in the contract specified that the applicant company would receive compensation corresponding to the value of assets acquired by it that were not written off at the end of the concession, subject to a prior agreement between the parties regarding the writing-off period. However, no such agreement was confirmed. On expiry of the concession period, the applicant company asked to receive the compensation. The subsequent dispute between the parties was submitted to an arbitration tribunal, composed in accordance with the provisions of the contract. The arbitration tribunal established that there had been no agreement between the parties on the writing-off period and found against the applicant company.
Inadmissible under Article 1 of Protocol No. 1: The applicant company complained that it had been deprived of its possessions without compensation. However, no interference in that right was attributable to the Portuguese authorities. The deprivation of property had resulted from a reasonable and objective interpretation by the arbitration tribunal, composed in accordance with the concession contract, of a private-law clause inserted by the parties to the contract. Accordingly, there had been no interference by the public authorities with the applicant company’s right to peaceful enjoyment of its possessions: incompatible ratione materiae.
Inadmissible under Article 6 § 1: The arbitration tribunals came within the concept of a “tribunal”. By choosing to include in the contract an arbitration clause providing that no appeal lay against the arbitration tribunal’s decision, the applicant company had lawfully and unequivocally waived certain rights, a waiver which Article 6 did not preclude.
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