Contributed By Arendt & Medernach
Whilst arbitration is a recognised form of dispute resolution in Luxembourg, litigation is mostly used by domestic parties.
At this stage, it seems that domestic parties tend to choose ad hoc arbitration proceedings rather than institutional arbitration proceedings.
Since the reform of the law on mediation in 2012, parties have increasingly used mediation as a method of dispute settlement.
Due to its open economy, Luxembourg is often the place of enforcement of foreign arbitral awards.
As the use of arbitration continues to grow, arbitration practitioners have also decided to relaunch the Luxembourg Arbitration Association (the Association), which was founded in 1996 and is dedicated to the promotion and development of arbitration practice in Luxembourg. The Association aims to provide support on the subject matter to authorities, parties, and institutions, by sharing expertise and information on arbitration-related matters, as well as providing a comprehensive database of Luxembourg and international qualified arbitrators and practitioners.
On 26 April 2019, the Association held its first Luxembourg Arbitration Day, a 24-hour event which combined ICC training for arbitrators and conferences on arbitration.
Due to the positioning of Luxembourg as a finance and investment funds hub, arbitration in these industries are experiencing more international arbitration activity than others.
For example, in the period 2015-2019, 20% of the disputes handled by the Arbitration Centre of the Luxembourg Chamber of Commerce were banking and finance-related disputes.
ICC, CEPANI and DIS arbitrations are widely used for international arbitration in Luxembourg.
The Arbitration Centre of the Chamber of Commerce of the Grand Duchy of Luxembourg (the Arbitration Centre) is also used for domestic and international arbitrations. The Arbitration Centre was launched in 1987 and has an institutional system of dispute resolution with Rules of Arbitration inspired by the International Chamber of Commerce (ICC) Arbitration Rules in force at that time (updated for the last time on 1 March 2014, and available in both French and English on its website, www.iccwbo.org). These arbitration rules are currently under review and a new version should become available in the course of 2020.
Over the period 2015-2019, the Arbitration Centre has seen a 33% increase in the number of cases compared to the period 2010-2014.
The main source of legislation on arbitration can be found in articles 1224 to 1251 of the New Civil Code of Procedure (NCCP). Under Luxembourg law, there is no distinction between domestic and international arbitration.
Luxembourg law on arbitration is not based on the UNCITRAL Model Law. The main differences between the UNCITRAL Model Law and the Luxembourg NCCP dispositions are that arbitration in Luxembourg is not limited to commercial relationships and that the NCCP refers, for arbitration proceedings, to the common judicial procedure (Article 1230 NCCP) whereas the UNCITRAL Model Law is tailored to arbitral proceedings. Nevertheless, Article 1225 NCCP sets out certain restrictions regarding the material scope of arbitration and parties are free to determine the different steps of their arbitral proceeding.
Luxembourg is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, the European Convention on International Commercial Arbitration of 1961, the Energy Treaty Charter and more than 100 bilateral investment treaties.
It should be noted that a group of practitioners and academics interested in arbitration, the Think Tank for Arbitration, have for the past five years been working on a comprehensive reform of the law on arbitration and have organised seminars on arbitration. The completion of these works led the Think Thank for Arbitration to propose a draft Model Law, which combines elements from the UNCITRAL Model Law, the Belgian as well as the French arbitration laws, to the Ministry of Justice.
As at 1 July 2019, no draft bill has been presented to the Luxembourg Parliament.
For an arbitration agreement to be enforceable under the laws of Luxembourg, such agreement can either take the form of an arbitration clause (promesse d’arbitrage) or a submission agreement (compromis). Whilst in the arbitration clause the parties agree to submit, all future disputes arising out of or under their contract, to arbitration, the parties to a compromis agree to refer an existing dispute between them to arbitration.
While the arbitration clause has no special formal requirements, the submission agreement has some requirements in terms of form and content (Article 1227 NCCP). In terms of form, it can be drawn up (i) in minutes before the appointed arbitrators, (ii) by act of a Luxembourg notary, or (iii) by private deed. Case law has also considered the voluntary appearance of the parties before the arbitral tribunal to constitute a valid submission agreement. It is also required for the submission agreement to list the subject matter of the dispute as well as the name of the arbitrators, otherwise it is deemed to be null and void.
Disputes involving rights that are at the full disposal of a person can be submitted to arbitration (Article 1224 NCCP).
Disputes concerning issues of status and capacity of persons, conjugal relationships, divorce and legal separation applications, representation or causes of incapacitated persons or the rights of an absent person or one who is presumed absent cannot be submitted to arbitration (Article 1225 NCCP).
While a clause inserted in a contract between a professional supplier of goods or services and a consumer, which would deprive the consumer of his right to bring his claim before a court (promesse d’arbitrage) is void (Consumer Code, Article L211-3(13)), the law does not prohibit the conclusion of a submission agreement by a consumer. It should be noted that submission agreements can be inserted into insurance contracts with a consumer (Law of 27 July 1997 on insurance contracts as modified, Article 46).
Luxembourg national courts usually enforce arbitration agreements. If one of the parties to an arbitration agreement refers a dispute to a court despite the existence of a valid arbitration clause, the court must stay the action on the dispute indicated in the court filing and refer the parties to arbitration. This principle has been confirmed by case law, even in situations in which the arbitral tribunal had not yet been constituted at the time of the filing of a court action.
It is possible for parties to jointly waive their right to arbitration. This waiver can be explicit but also implicit in the event a defendant in a court action fails to raise any objection before his arguments on merits of the case. The national courts have indeed previously ruled that the lack of competence of the courts should be raised in limine litis in order for such argument to be taken into consideration.
There is no special provision relating to the separability of the arbitration clause from the underlying agreement. Whilst Luxembourg case law has recognised some autonomy to the arbitration clause, it has also made clear that this autonomy is of relative effect. In the event an arbitration clause was contained in an invalid agreement, the arbitration clause would not stand.
Article 8(4) of the 2014 rules of the Arbitration Centre, however, endorses the separability principle and expressly provides that the arbitrator shall continue to have jurisdiction over the parties’ claims even though the contract itself may be inexistent or null and void.
There are no limits to the parties’ autonomy to select arbitrators in Luxembourg. As there are no restrictions to certain professions, parties are allowed to select any person of their choice, including an active Luxembourg judge or a Luxembourg civil servant (in case of the latter, his/her department should not be involved in the arbitration).
In respect of the numbers of arbitrators, pursuant to the arbitration agreement, there can be an even or an uneven number of arbitrators.
By default, an arbitral tribunal will be constituted of three arbitrators with each party appointing its own arbitrator and the two party-appointed arbitrators appointing the third arbitrator (Article 1227 NCCP).
Pursuant to Article 1227 NCCP, the President of the District Court (Tribunal d’Arrondissement) can intervene in the following three scenarios in respect of the selection of arbitrators:
Article 1235 NCCP provides that arbitrators can only be challenged for reasons arising after the conclusion of the submission agreement designating them.
As far as the grounds for a challenge are concerned, these are not set out in the Luxembourg law on arbitration. However, case law confirms that the grounds and procedure for challenging an arbitrator are the same as those used to challenge a judge (Article 521 of the NCCP). Among the nine grounds listed in this article, an arbitrator could be challenged if
It should be noted that only the party filing the challenge has the capacity to be party to such procedure. From the day of the judgement on the challenge, the challenging party has 15 days to lodge an appeal (Article 535 NCCP).
During arbitral proceedings, parties can unanimously decide to dismiss one or several arbitrators (Article 1229 NCCP). As there are not specific provisions in respect of the procedure for the designation of substitute arbitrators, the latter should be designated in the same manner as the original arbitrators.
Under Luxembourg law, there are no specific requirements as to arbitrator independence, impartiality and/or disclosure of potential conflicts of interest. As seen in 4.4 Challenge and Removal of Arbitrators, above, since Luxembourg case law confirms that the grounds for challenging an arbitrator are limited to the ones used to challenge a judge, it is considered that the disclosure requirements of a judge also apply to an arbitrator (Article 523 of NCCP). On that basis, an arbitrator is obliged to disclose facts that may raise doubts as to his impartiality and independence.
The Arbitration Centre on the other hand has clear requirements in respect of arbitrator independence, impartiality and disclosure (articles 8, 9 and 10 of the 2014 rules of the Arbitration Centre). First, every arbitrator must be, and remain, impartial and independent of the parties involved in the arbitral proceedings. Second, before appointment or confirmation, a prospective arbitrator shall sign a statement of acceptance, availability, impartiality and independence. The prospective arbitrator shall disclose in writing to the Secretariat of the Arbitration Centre any facts or circumstances which might be of such a nature as to call into question the arbitrator’s independence in the eyes of the parties, as well as any circumstances that could give rise to reasonable doubts as to the arbitrator’s impartiality. The Secretariat shall provide such information to the parties in writing and set a time limit for any comments from them. Third, an arbitrator shall immediately disclose in writing to the Secretariat and to the parties any facts or circumstances of a similar nature to those referred to in the precedent paragraph concerning the arbitrator’s impartiality or independence which may arise during the arbitration.
In the context of arbitrations conducted under the rules of the Arbitration Centre, a challenge, whether for an alleged lack of impartiality or independence, or otherwise, shall be made by submission of a written statement specifying the facts and circumstances on which the challenge is based to the Secretariat of the Arbitration Centre (see Article 2(7) of the 2014 rules of the Arbitration Centre).
See 3.2 Arbitrability above.
The principle of competence-competence which allows an arbitral tribunal to rule on a party’s challenge to the tribunal’s own jurisdiction, despite not being enshrined in the NCCP, is recognised in Luxembourg.
Save for the matters excluded from arbitration, it is generally accepted that the argument that the arbitral tribunal lacks competence must be raised in the first written submissions of the relevant party.
Generally, the District Courts of Luxembourg are reluctant to intervene in issues of jurisdiction. As mentioned in 3.3 National Courts' Approach, above, if one of the parties to an arbitration agreement refers a dispute to a court despite the existence of a valid arbitration clause, the court will stay the action and refer the parties to arbitration and this even though the arbitral tribunal is not yet constituted at the time of the filing of the court action.
In the event a partial award on jurisdiction is rendered, as this is considered a final decision which can no longer be challenged before the arbitrators, there are no restrictions under Luxembourg law for a party to challenge the jurisdiction of the arbitral tribunal before the courts as soon as this partial award is rendered.
When a final award on merits is rendered, the party will be entitled to challenge the jurisdiction of the arbitral tribunal before the courts at the stage of annulment proceedings.
The standard of judicial review for questions of jurisdiction is de novo.
See 5.4 Timing of Challenge, above.
It should be noted that foreign anti-suit injunctions are unlikely to be enforced in Luxembourg.
In the absence of an arbitration agreement, third parties cannot be forced to participate to arbitration proceedings. Article 1243 NCCP provides that arbitral decisions may not be invoked against third parties.
A bankruptcy receiver will be bound by a submission agreement concluded by the bankrupt person before he entered bankruptcy. The position is not so clear in respect of arbitration clauses. Even though we are not aware of any judicial decision which has ruled on this aspect so far, some authors contend that if the contract including the arbitration clause is executed by the receiver, he shall be bound by the arbitration clause.
No provisions under the Luxembourg law on arbitration prevent, in theory, an interested third party to make an application to join arbitral proceedings.
Several decisions of the Luxembourg courts have confirmed that the arbitration clause may be enforceable against a third party in the event of the assignment of a contract.
The 2014 rules of the Arbitration Centre do not include provisions dealing with the intervention or joinder of third parties to the arbitration proceedings.
Despite Luxembourg law not having an equivalent of the Chapter IV (A) on 'Interim measures and preliminary orders' of the UNCITRAL Model Law in its law on arbitration, an arbitral tribunal in Luxembourg is still permitted to award such conservatory measures or interim relief that it deems appropriate.
To do so, an arbitral tribunal will, after a careful assessment of the requested measure, order the appointment of an expert, impose measures to secure evidence, impose a prohibition to dispose of certain goods, etc.
There are no specific procedural requirements for an arbitral tribunal to deal with a request for conservatory measures or interim relief except, for the usual requirements of equal treatment of the parties and due process.
The 2014 rules of the Arbitration Centre do not provide for emergency arbitrator provisions.
The judge sitting in summary proceedings (juge des référés) may order instruction measures, as well as provisional and conservatory measures. He can accordingly (i) grant instruction measures, such as measures aimed at obtaining evidence or preventing the disappearance or destruction of evidence (instruction measures in futurum), or (ii) issue a payment order upon request (référé-provision).
Depending of the type of orders requested, the judge sitting in the summary proceedings will take into account the status of the arbitral proceedings and the level of urgency of the requested measures. In the context of a référé-provision, it has been ruled that the constitution of the arbitral tribunal prevents the intervention of the courts (Court of Appeal, 25 June 1991, No 13074).
It should be noted that parties can exclude the possibility to request interim measures from the judge sitting in summary proceedings. This renunciation should be express.
Contrary to the arbitral tribunal which cannot issue interim measures against third parties, the judge sitting in summary proceedings can authorise an attachment or a garnishment.
At this stage, Luxembourg law on arbitration does not refer to emergency arbitrators.
There are no specific provisions expressly empowering arbitral tribunals to order security for costs.
In the context of courts proceedings and pursuant to the provision on cautio judicatum solvi (Article 257 NCCP), a Luxembourg defendant could request the Court, in limine litis – ie, before the debate on the merits of the case – to order a plaintiff (non-based in the European Union) to deposit the amount in respect of costs and damages to which the plaintiff could be condemned into an escrow account/provide a guarantee. In the event such judicial bond is granted, the debate on the merits cannot start without the plaintiff remitting the monies.
As decided by case law, general principles relating to judicial proceedings have to be adapted to the specific nature of arbitration (Court of Appeal, 22 July 1904, No 517).
As mentioned in 2.1 Governing Law, above, the main source of legislation on arbitration can be found in articles 1224 to 1251 of the NCCP. All rules in respect of the procedure of arbitration are indicated in that section.
Pursuant to its Article 1230, the NCCP provides supplementary rules as to the conduct of arbitral proceedings. As such, the general provisions applicable to national courts must be observed unless the parties explicitly or tacitly agree otherwise. More generally, all the procedural steps of the arbitration proceedings will need to comply with the general principles of civil procedure (eg, ensuring the rights of the defence). The latter principle is essential, as a violation of the rights of the defence constitutes grounds for annulment of the arbitral award.
Due to the initial three-month provision on the duration of arbitral proceedings, Article 1237 NCCP provides that parties should have exchanged their written submissions and exhibits at least 15 days before the end of the arbitral procedure. Nonetheless, the parties and the arbitral tribunal will usually agree at the beginning of the arbitral proceedings on a procedural calendar in respect of written submissions and exhibits. In any event, as long as the adversarial principle has been complied with, the arbitral award cannot be annulled on the grounds that parties have exchanged documents after that 15-day deadline.
Arbitrators have the same duties as judges and, in that respect, they must handle evidence submitted by the parties in a diligent manner, uphold essential principles of procedural fairness, as well as be and remain impartial and independent of the parties involved in the arbitral proceedings.
There are no particular qualifications or other requirements for legal representatives appearing in international arbitration proceedings in Luxembourg. In practice, the arbitral tribunal can require the parties to provide it with powers of attorney authorising the legal counsel to represent parties during the arbitral proceedings.
In terms of the general approach to the collection and submission of evidence at the pleading stage and at the hearing, the parties are free to organise the arbitral proceedings including the collection and submission of evidence as they want.
As per the usual practice, the evidence rules regarding the production of documents or witness statements are determined at the beginning of the arbitral proceedings by parties and together with the arbitral tribunal or through a reference to institutional rules of procedure. Parties usually take guidance from the IBA Rules on the Taking of Evidence in International Commercial Arbitration.
Even though the Luxembourg law on arbitration remains fairly silent with regards to evidentiary proceedings, arbitral tribunals are to ensure that the rules of due process are complied with. If the parties did not provide for this in their arbitration agreement, then the relevant supplementary rules of the NCCP apply (see 8.2Rules of Evidence below).
Save for the rule that parties have to exchange their written submissions and documents at least 15 days before the end of the arbitral procedure, Luxembourg law on arbitration does not say much about rules of evidence.
Parties will decide on the rules of evidence either directly by providing for rules of evidence in their arbitration agreement or through reference to institutional rules of procedure.
In March 2018, the Rules of Procedure of the Luxembourg Bar have been amended to allow Luxembourg lawyers to assist witnesses in the redaction of their witness statements and prepare their cross-examination.
In the event parties have not made derogations to the general provisions for the ordinary courts either in their arbitration agreement or in the terms of reference, the relevant supplementary rules of the NCCP will apply. The relevant rules are as follows:
As pointed out above, parties are free to derogate to these general provisions of the courts.
On a separate note, arbitrators cannot rule on whether a document is false or forged or even examine documents with such aim (Article 1236 NCCP).
The arbitral tribunal does not have powers of compulsion in respect of production of documents or the attendance of witnesses either before or at the hearing. There is no difference in that respect between parties to the arbitration and non-parties. No provisions prevent the arbitrators to draw adverse inference from a failure by a party to comply with a request of evidence production – ie, the arbitrators may interpret this behaviour to the advantage of the other party.
The only coercive power which could potentially be used by an arbitrator, even though the question has yet to be submitted to the courts, is the possibility to order a party to produce accounting records (Article 19 of the Luxembourg Commercial Code).
The confidentiality of arbitration is not anchored in Luxembourg law.
It should nonetheless be noted that in enforcement proceedings before Luxembourg courts, the arbitral award and the arbitration agreement are not part of the public record. However, once a party files an application for annulment of an arbitral award or an appeal against the ex parte decision granting recognition of the arbitral award, the existence of the proceedings becomes part of the public record.
The arbitral award shall be signed by the sole arbitrator or the majority of the arbitrators (in the event there is more than one arbitrator). In the event the arbitrator(s) refuse(s) to sign the arbitral award, a reference to this refusal should be included in the arbitral award (Article 1237 NCCP). There is no formal requirement to indicate the reasons of dissent.
The arbitral award must describe the reasons leading to the arbitral tribunal’s decision. It is possible for parties to exempt the arbitral tribunal from rendering a reasoned award (Article 1244(8) NCCP).
The inclusion of certain information in the arbitral award such as the date, the place of arbitration, the names of the parties and their addresses, the names of the legal counsels and of the arbitrator is not prescribed by the law on arbitration.
The law expressly states that an arbitral award cannot be subject to 'opposition' – ie, a non-participating respondent to the arbitral proceedings cannot seek to have the arbitral award revoked on the basis that it was neither a party to nor represented in the proceedings (Article 1237 NCCP).
In terms of time limits on the delivery of the arbitral award; while the inclusion of a maximal duration of the arbitral proceedings is not a compulsory requirement, if no indication is made in the arbitration agreement, the duration of arbitral proceedings may not exceed three months. The extension of such duration shall be provided by common agreement of parties (See articles 1228 and 1233 NCCP). The courts have ruled that the oral agreement at a procedural hearing that the arbitrator “could take the time needed to render his arbitral award” does not constitute an agreement as to a specific deadline (District Court of Luxembourg, 25 January 2011, No 104723).
The law is silent as to the types of remedies an arbitral tribunal can award.
In respect of the possibility for the arbitral tribunal to award punitive damages, it should be noted that under Luxembourg law, damages can only be compensatory and cannot exceed the amount of the loss sustained by the injured party. In that respect, it should be noted that an arbitral award granting punitive damages might face annulment on that basis of violation of Luxembourg public order (Article 1244(1) NCCP).
The recovery of interest is a matter of applicable law.
Under Luxembourg law, arbitral tribunals are able to award compensatory interest at either the statutory or the contractually agreed rate.
The rules of the Arbitration Centre are silent on the subject.
Parties are entitled to recover legal costs as well as any other costs related to the arbitration (ie, arbitrators’ fees and expenses and administrative costs). The allocation of costs will be decided by the arbitral tribunal based on the provisions found in the arbitration clause or the arbitration rules. If no specific provisions are applicable, an arbitral tribunal enjoys broad discretion and can, on a case-by-case basis, order each party to bear its own costs or apportion costs between the parties based on the relative success of their claims.
The arbitral tribunal could also sanction the abusive behaviour of a party through the allocation of costs.
The only way for an arbitral award to be challenged is by way of annulment proceedings.
Article 1244 NCCP provides for the following limited grounds of annulment:
Parties cannot agree to expand the scope of challenge before the courts or reserve their rights as to the lodging of an appeal against the arbitral award before the courts.
No provisions prevent parties from including in their arbitration agreement the possibility of arbitral appeal to a second arbitral instance.
In annulment proceedings, the courts will not review the merits of the case unless the invoked grounds require a limited review thereof, such as a violation of public policy.
Luxembourg ratified the New York Convention by law of 20 May 1983 and issued a declaration of reciprocity in this respect.
Luxembourg is also a party to the European Convention on International Commercial Arbitration of 21 April 1961, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) and more than 100 bilateral investment treaties.
In order to enforce an arbitral award in Luxembourg, the requesting party shall seek enforcement by a request addressed to the President of the District Court. There is no specific time limit to request enforcement.
The President of the District Court will on an ex parte basis review the arbitral award. At this stage of the proceedings, he can refuse to grant leave for enforcement on the basis of very few limited grounds.
If the President of the District Court successfully grants leave for enforcement, then the order of the District Court can only be attacked by means of an application for annulment. In contrast, if the President refuses the enforcement of the arbitral award, then the concerned party can lodge an appeal in accordance with the ordinary rules of civil procedure.
In terms of the possibility for the courts to refuse the enforcement of an arbitral award, the procedure differs whether the award in question is subject or not to the New York Convention. When it does, the grounds for resisting enforcement are strictly limited to the grounds listed in Article V of the New York Convention. If not, the provisions of Article 1251 NCCP will apply.
This Article lists the following grounds:
Since annulment of an arbitral award is not one of the grounds for refusing enforcement under Article 1251 NCCP, the Luxembourg courts relying on the provisions of Article VII(I) of the New York Convention considered that they had a sufficient basis to enforce arbitral awards annulled at the seat of arbitration (Court of Appeal, 28 January 1999). The Luxembourg courts still take into account the circumstances of each case. For example, it has been ruled that the enforcement proceedings of a foreign arbitral award in Luxembourg shall be stayed until the annulment proceedings have been completed in the country where the arbitral award has been issued (Court of Appeal, 25 June 2015).
In light of recent case law, it seems that a state or state entity raising a defense of sovereign immunity at the enforcement stage would not be successful. Indeed, according to a recent case law, the Court of Appeal ruled that a State had, by accepting that its dispute was to be resolved by an arbitral tribunal, also accepted that the arbitral award be granted leave for enforcement (Court of Appeal, 27 April 2017).
Luxembourg courts have a pro-arbitration approach towards recognition and enforcement of arbitral awards.
Luxembourg does not provide for class-action arbitration or group arbitration.
No specific ethical codes save for professional standards applicable to counsel and arbitrators conducting arbitral proceedings in Luxembourg are applicable.
Even though Luxembourg law does not include any specific provisions regarding third-party funders, third-party funding is permitted in practice. With its very rich investment funds environment (Luxembourg is the largest fund domicile in Europe and a worldwide leader in cross-border distribution of funds) and the rise of third-party funders in commercial international arbitration, Luxembourg could potentially become a niche for third-party funders.
Luxembourg law on arbitration is silent on the issue of consolidation.
There do not appear to be obstacles to separate arbitral proceedings being consolidated into a single one under certain circumstances. In the event of related contracts with different parties, parties could, for example, at the time of drafting of the contracts, expressly record their consent to a consolidation in case of dispute. Parties to separate proceedings could also appoint the same tribunal in each of the related proceedings and thereupon request consolidation.
A third party may be bound by an arbitration agreement when a contract including an arbitration clause is assigned.
Article 1243 NCCP provides that arbitral decisions may not be invoked against third parties.