Authors: Prof. Dr. Antonis Metaxas* and Vassiliki Koumpli**
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Introduction
Arbitration regulation in Greece has adopted the dualist system, distinguishing between domestic and international arbitration. The former is governed by Arts. 867–903 of the Greek Code of Civil Procedure, whereas the latter is governed by the Greek International Arbitration Law based on the UNCITRAL Model Law on International Commercial Arbitration. The first version of the Greek International Arbitration Law was included in Law 2735/1999 and based on the 1985 version of the UNCITRAL Model Law. As of 4 February 2023, such law was replaced by Law 5016/2023, which introduced a revised framework regulating international arbitration, taking into account the 2006 version of UNCITRAL Model Law and, according to its Explanatory Report, aiming at modernizing the existing framework by adopting current developments in legal theory, practice, and case law. Law 5016/2023 aims to reconstruct the Greek arbitration framework, introducing a number of novelties that fall beyond the provisions of the 2006 Model Law. In any case, attention should be drawn to the interpretation of EU law, ensuring its full effectiveness. More specifically, founded on the standard jurisprudence of the CJEU, commercial arbitration is a mechanism solely based on private autonomy. Thus, it must be differentiated from the Investor–State dispute resolution.[1]
Arbitration is the prevailing ADR method in Greece, with mediation—currently regulated by Law 4640/2019—also being promoted and gradually institutionalized.[2]
This post explains Law 5016/2023 by highlighting the practical approach of the revision and its most important novelties.
Scope of Application and Arbitrability
Law 5016/2023 may apply only upon the parties’ agreement when the seat of arbitration is in Greece, irrespective of any other condition.
Remarkably, Law 5016/2023 goes further by broadening its objective scope, setting a presumption over the arbitrability of any dispute, unless an express provision for the opposite exists. This puts an end to controversies that have given rise to case law on the arbitrability of administrative law disputes as well as on the delimitation of the power of the parties to dispose of the subject matter of a private law dispute.
The Arbitration Agreement
As to the substantive validity of the arbitration agreement, Law 5016/2023 acknowledges the principle of in favorem validitatis in relation to the arbitration agreement by establishing a conflict of laws rule which is expected to ensure legal certainty.[3] This rule provides that an arbitration agreement is valid if it is deemed valid under (a) the law applicable to the arbitration agreement, (b) the lex loci arbitri, or (c) the lex contractus.
As to the formal validity of the arbitration agreement, Law 5016/2023 clarifies that the concept of the “document” enclosing an arbitration clause or agreement encompasses an electronic recording that allows the subsequent ascertainment of its origin from a particular issuer as well as the access to the content of the agreement. Thus, the oral form of the arbitration agreement is not excluded, provided that its content is recorded. This provision shall enable remote transactions, adding flexibility and covering new electronic means that may come in the future.
Composition of the Arbitral Tribunal
Concerning the composition of the arbitral tribunal, Law 5016/2023 introduces the following novelties to ensure its speedy appointment and unobstructed function:
(1) The parties are free to choose the conduct of the arbitration by one sole arbitrator.
(2) In multiparty arbitrations, co-plaintiffs or co-defendants shall jointly appoint one arbitrator, unless otherwise agreed. In case such parties cannot reach a common appointment within the period provided for in the arbitration agreement or, in the absence thereof, within 30 days, such appointment is made by the civil Court of First Instance located at the seat of arbitration.
(3) A time limit of 90 days of the request for arbitration is set for the composition of the arbitral tribunal.
(4) By contrast with the previous regime, the arbitral tribunal shall decide on an arbitrator’s challenge without the participation of the challenged arbitrator. Moreover, the requirement of the arbitral tribunal’s unanimous decision to replace an arbitrator is abolished.
(5) Arbitrators’ and secretaries’ liability is limited to willful misconduct and gross negligence.
Jurisdiction of the Arbitral Tribunal
The following four provisions on the jurisdiction of the arbitral tribunal aim to address some controversial issues in the field of international arbitration:
(1) The challenge of a partial award on jurisdiction before the competent court is regulated.
(2) An expansion of the ratione personae scope of the arbitral proceedings is provided. The arbitral tribunal has the power to accept that a person bound by the arbitration agreement joins in the arbitral proceedings, as a claimant, respondent, or third-party intervener with a legal interest in the resolution of the dispute.
(3) Following the request by a party, the arbitral tribunal has the power to consolidate before it and adjudicate another dispute between the parties that is pending before the same arbitrators or, with the parties’ express agreement, before another arbitral tribunal. The arbitral tribunal shall also have the power to terminate the arbitral proceedings if the relevant dispute has been consolidated before it or another arbitral tribunal.
(4) The power of the arbitral tribunal to order interim measures in urgent cases is specified through the provision of particular requirements for ordering an interim measure and the establishment of the enforceability of the relevant decision until the final award, with the grounds for refusing its recognition and enforcement being limited only to the violation of international public policy.
Conduct of the Arbitral Proceedings
Two remarkable provisions are introduced with respect to the conduct of the arbitral proceedings:
(1) The parties are free to agree on the confidentiality or non-confidentiality of the arbitration, the arbitral proceedings, and the arbitral award. Failing such agreement, the arbitral tribunal may conduct the arbitration in a confidential or non-confidential manner, as it considers appropriate.
(2) Unless otherwise agreed by the parties, at any stage of the arbitral proceedings, at the request of a party or on its own motion, after having invited the parties to express views, the arbitral tribunal may order the production of documents or other evidence in the parties’ possession or control which it considers likely to be important for the outcome of the arbitration.
Res judicata and Enforcement of the Arbitral Award
An arbitral award shall be res judicata from its issuance, with express reference to the respective Arts. 322, 324–330, and 332–334 of the Greek Code of Civil Procedure. The res judicata effect also extends to decisions of the arbitral tribunal on preliminary matters that fall within the scope of the arbitration agreement. The arbitral award may only be enforceable against third parties if the arbitration agreement binds them.
Annulment of the Arbitral Award
The procedure for adjudicating an application for the annulment of an arbitral award is defined by reference to the procedure for resolving property disputes under Arts. 614–622B of the Greek Code of Civil Procedure.
Moreover, a new ground for the annulment of the arbitral award is introduced by referral to the extraordinary means for challenging judgments under Art. 544, paras 6 and 10 of the Greek Civil Procedure. This ground consists of false testimony or false documents, passive bribery, or breach of duty affecting the said award. The above occurrence shall be recognized by an irrevocable criminal judgment (or, in case of false testimony, also by witness confession). In this particular case, the time limit for the filing of the application for the setting aside of the arbitral award is sixty days from the date on which the said criminal judgment has become irrevocable. It is to be noted that this special time limit is significantly longer than the general time limit for the filing of the application for the setting aside, which is three months from the date of service of the arbitral award.
Law 5016/2023 also states that an arbitral award conflicting with international public policy may be subject to annulment irrespective of whether Greek or foreign law was applied to the case at hand, also putting an end to controversies in case law.
It is further clarified that the parties may not rely upon their own actions or omissions to set aside an arbitral award.
The parties may waive their right to request the annulment of an arbitral award at any time. In such cases, the parties maintain the right to raise annulment grounds in the context of enforcement proceedings.
Last, Law 5016/2023 provides for the referral of the dispute by the Court of Appeal adjudicating the application for annulment to the arbitral tribunal that issued the award. Instead of quashing the arbitral award, the Court may refer the dispute to the issuing arbitral tribunal, which can issue a new award and eliminate the grounds for its annulment.
Institutional Arbitration Organizations
Law 5016/2023 sets the minimum requirements for establishing and operating institutional arbitration organizations. Such organizations must be sociétés anonymes with a minimum share capital of € 100,000 or legal entities governed by public law, and they must submit a declaration of their operation for approval to the Ministry of Justice, which is responsible for their supervision. Institutional arbitration organizations validly established abroad can provide institutional arbitration services in Greece.
Concluding Remarks
Law 5016/2023 was not limited to the mere adoption of the 2006 version of the UNCITRAL Model Law. On the contrary, it introduced a series of new provisions that resolved existing controversies on numerous issues and made the arbitration process more efficient. From this point of view, the practical character of its novelties is prevailing and expected to ensure the smooth application of the arbitration regulation without leaving room for uncertainty and the need for interpretation due to ambiguities. To this extent, Law 5016/2023 provides plausible solutions to a rather diachronic debate on the relationship between judicial and arbitral proceedings and the involvement of national courts in arbitral proceedings.[4]
It remains to be seen whether the practical implementation of Law 5016/2023 and the efficiency of the arbitration process will be adequate tools to ensure its effectiveness. Such effectiveness will be achieved if more parties are motivated to refer their disputes to arbitration and, ultimately, Greece is established as an attractive seat for international arbitral proceedings.
* Prof. Dr. Antonis Metaxas is an Associate Professor at the National and Kapodistrian University of Athens and a Visiting Professor at TU Berlin.
** Vassiliki Koumpli is a Senior Research Fellow at the Hellenic Institute of International and Foreign Law.
[1] A. Metaxas, “Opinion 1/17: Autonomy of EU Legal Order and the Conflicting Context of International Investment Arbitration”, in: M. Andenas et al. (eds), Opinion 1/17: Between European and International Perspectives, European Papers 2021, Vol. 6, No 1, pp. 631–644.
[2] V. Koumpli, “A further step towards institutionalization of mediation in Greece: recent developments after Law 4640/2019”, in: M. Roth & M. Geistlinger (eds), Yearbook on International Arbitration and ADR – Volume VII, Dike & NWV, Zurich–Vienna 2021, pp. 223-232.
[3] E. Vassilakakis & A. Vezyrtzi, “Innovation in International Commercial Arbitration – A New International Arbitration Act in Greece”, IPRax 2023, Heft 5, pp. 493–497, at p. 494.
[4] A. Metaxas, “Reconsidering the Autonomy of EU Law: From Achmea to Opinion 1/17 and Beyond”, EPLO: European Politeia 2020, No. 1, pp. 41–67.