International Arbitration 2023 Comparisons

In recent decades, recourse to international arbitration in Greece has been gradually gaining ground over traditional methods of commercial dispute resolution (ie, litigation before the national courts). Naturally, the prevalence of international arbitration is not uniformly established over the whole realm of civil disputes; rather, depending on the subject matter of the dispute, on the financial resources of the parties or even on their nationality, recourse to conventional litigation proceedings may be deemed preferable.

Benefits for Domestic Parties

Domestic parties tend to resort to international arbitration in order to resolve disputes arising from contracts that have been extensively negotiated and tend to abstain from the default provisions of Greek civil law. In the context of such sophisticated legal relationships, the parties appear to highly value the neutrality that is a characteristic of international arbitration proceedings. 

A further benefit is that the tailor-made procedural framework lends itself to flexibility of procedure, and the increased involvement of the parties (eg, participation in the tribunal’s appointment process) tends to enhance their trust in this method of dispute resolution. This is especially true with regard to foreign entities, which are usually more hesitant to submit their disputes with domestic entities before national courts. 

In essence, when opting for international arbitration, the parties expect that their case will be heard by skilled legal practitioners, without entanglement in unnecessary procedural formalities. Finally, the swiftness and confidentiality of the proceedings are highly valued, especially when matters of business secrecy are involved.

Enforceability

Of course, all of the above advantages would be deprived of their influence were it not for the enforceability of the international arbitral award. It is common ground that the pivotal consideration when selecting a method of dispute resolution is the delivery of a decision that will be enforceable, preferably across jurisdictions, with the fewest possible formalities. In that vein, a nexus of international treaties and national laws provides for fairly simple (and largely uniform) procedures to enforce international arbitral awards, thereby staving off any insecurity the parties could have which could drive them to lean towards national courts. 

The most common basis of recourse to international arbitration in Greece is as a method of dispute resolution chosen by parties entering into an agreement governed by Greek law. The selection of Greece as the seat of arbitration, although quite common, does not hold a lead over the selection of other jurisdictions; the choice of the United Kingdom, Switzerland or France as the state of the seat of arbitration is not an exceptional circumstance.

As already indicated in 1.1 Prevalence of Arbitration, the prevalence of international arbitration over national litigation (or even national arbitration) is not uniformly observed across industries.

Over the years, the industries that have shown a consistent inclination towards recourse to international arbitration proceedings have been concession and construction project development, energy, and share sale and purchase agreements. The common feature of those industries, which favour international arbitration as a method of dispute resolution, is the negotiation and conclusion of complex agreements involving considerable financial undertakings. Even domestic parties hold that an arbitral tribunal formed by practitioners experienced in the relevant field is likely to reach a commercially sensible solution in a more expedient way than a national court.

Both domestic and international arbitration have already experienced the impact of the COVID-19 pandemic; since the first wave of the pandemic, the parties to commercial contracts have been seeking ways to reform their agreements and adjust their previous commitments to the new circumstances. In this respect, the unexpected overturning of the parties’ legitimate expectations as well as the remarkable performance of arbitral tribunals and institutions during the social distancing period resulted in a considerable increase in arbitration activity. Such an increase was observed across the whole range of commercial arbitration, taking into account that there was almost no sector of business left untouched. Disputes arising in the context of concession agreements, especially in cases relating to transport, aviation and construction, were at the forefront in the category of COVID-19 disputes. 

In Greece, institutional arbitration is strongly preferred by the parties over ad hoc forms. The most eminent and commonly chosen institutions in this context are the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA) and the Athens Mediation & Arbitration Organization (EODID). 

The main factors assessed by Greek parties when determining their preferred arbitral institution also apply to the leading international practice. More specifically, parties and counsels tend to opt for internationally acclaimed institutions that have the resources and the background to guide them through the procedure and effectively provide them with any support they may deem necessary. 

The new Greek law 5016/2023 on international arbitration has also regulated from a modern aspect, the operation of domestic institutions in Greece, by introducing certain standards for their establishment, aiming at safeguarding a minimum level for the quality of the services provided. 

As will be explained in the following sections, domestic courts may be involved in arbitral proceedings only on an exceptional basis, upon explicit provision of the law (Article 8 of Law 5016/2023), eg, in the context of an arbitrator’s appointment or challenge, in case the arbitral award is challenged or, later, at the stage of enforcement of the arbitral award. The court that is designated to decide on challenges of arbitral awards is the Court of Appeals, while it is the single-member courts of first instance that decide on issues that may occur during the course of the proceedings or at the enforcement stage. However, they are not designated to especially hear disputes related only to international or domestic arbitrations. 

International arbitration in Greece is governed - as already indicated - by new Greek Law 5016/2023, which has replaced the former Law 2735/1999. The new Law 5016/2023 reflects, to a great extent, the 2006 amendments to the provisions of the UNCITRAL Model Law of 1985 on International Commercial Arbitration (UNCITRAL Model Law), the relevant provisions being of a mandatory nature, as well as the contemporary trends in theory and practice of international arbitration. 

Deviations From the UNCITRAL Model Law

As per the official explanatory memorandum of Greek Law 5016/2023, the legislator attempted to modernise the legal framework of international arbitration and adjust to the maximum extent possible to the provisions of the UNCITRAL Model Law. 

Decision on a challenge of an arbitrator

Article 19.2 of Law 5016/2023 dictates that the decision regarding the challenge of an arbitrator, which is submitted to the arbitral tribunal, is rendered by the latter, without the participation of the challenged arbitrator. However, the arbitrator retains the right to present his/her position on the challenge. The contrary provision of the Model Law, which implies that the application for exemption is decided primo loco by the arbitral tribunal with the participation of the party under exception arbitrator, has given rise to much legitimate criticism.

Arbitrator's and secretary's liability

A new provision not included in the Model Law has been introduced and defines the measure of liability of arbitrators. More specifically, Article 22 states that the arbitrator's and secretary's liability is limited to wilful misconduct and gross negligence. 

Multi-member arbitral tribunals

The new Article 16 regulates the appointment of the members of a multi-member arbitral tribunal in cases where more than one claimant or respondent do not agree on the joint appointment of an arbitrator, each for their side. The provisions of Article 16 are subject to parties’ contrary agreement and aim at ensuring the progress of the arbitration proceedings. In such cases, the solution is to be given (upon a party’s request) by the national court of Article 9.1 of the Law, having wide power to decide on the confirmation or the repeal of already appointed arbitrators, a decision which is not subject to any legal remedy. Such provision is not included in the Model Law.

Regulation of multi-party arbitrations

The new Article 24, which does not reflect provisions of the Model Law, regulates multi-party arbitrations. Paragraph 1 provides the possible forms of expansion of the ratione personae scope of the arbitral proceedings (participation of an additional or a main party in the arbitration) and it regulates the manner, in which such an expansion may be achieved. Paragraph 2 regulates the consolidation of arbitral proceedings under certain conditions. It is noted that all provisions of the Article are subject to any contrary agreement by the parties. 

Binding effect of the arbitral award against third parties

A new provision is introduced with Article 44 of the new Law 5016/2023 which is not provided in the Model Law, stating that the arbitral award shall be effective against third parties only if such parties are bound by the arbitration agreement. Such opinion holds almost absolutely in the international community.

Liability of the party requesting for interim measures

Article 25.6 provides for the liability of the party requesting for interim measures, expressly establishing the duty of good faith throughout the arbitral proceedings. This paragraph provides that the requesting party may be ordered to pay reasonable damages in the case of violation of the duty of good faith or ex-post finding that the interim measure was unjustified. Such provision is not included in Model Law.

Grounds for setting aside an arbitral award

In addition to the grounds for setting aside the arbitral award provided in Article 34 of Model Law, Article 43 of the new Law 5016/2023 included provisions for setting aside the arbitral award the grounds consisting in the extraordinary remedy of reopening in cases 6 and 10 of Article 544 of the Greek Code of Civil Procedure (GCCP). These two grounds may set aside the judgment if criminal acts have influenced its content. The sixth ground relates to the false testimony of a witness or a party or a false report or testimony of an expert or forged documents, while the tenth ground relates to bribery or intentional misconduct on the part of a judge who participated in the issuance of the judgment.

As already mentioned, the new Greek Law 5016/2023 has replaced the former Law 2735/1999 aiming to modernise the national rules on international commercial arbitration, incorporating almost all the 2006 amendments of the UNCITRAL Model Law. 

The proper conclusion of the arbitration agreement is the first indispensable step for the submission of a dispute to arbitration, and this correspondingly deprives the national courts of the competence to rule on the case. 

As per Article 10.1 et seq of Greek Law 5016/2023, which sets out the relevant formality requirements, arbitration agreements should be concluded in writing; however, such requirement serves only evidentiary purposes. In any case, the participation of a party in the arbitral proceedings, without raising any reservation on the matter, is considered as proof for the conclusion of an arbitration agreement.

The arbitration agreement, as regards its substantive content, shall at least specify: 

• the parties’ will to submit their dispute(s) to arbitration; 
• the kind of dispute(s) which shall be submitted to arbitration; and 
• the final character of the award. 

However, the designation of the seat of the arbitral tribunal is not an essential element of the arbitration agreement.

Finally, in view of the contractual nature of an arbitration agreement, it follows that its validity rests on the parties’ capacity to contract, as well as on their representative power (where applicable).

Over the last few years it has been possible to detect a global tendency towards the expansion of the subject matters that are considered arbitrable (eg, intellectual property, antitrust and tax-related disputes). Greece is no exception from this general trend. 

Article 3.4 establishes the rule of arbitrability of the disputes, absent any express prohibition by law. Therefore an important (rebuttable) presumption in favour of arbitrability is established for all kinds of disputes. However, certain subject matters have traditionally been excluded from arbitration by Greek case law and theory. The most commonly mentioned non-arbitrable matters are marital disputes, disputes between parents and children, labour disputes and disputes relating to insolvency or enforcement proceedings. 

The general approach, as regards the determination of whether a dispute is arbitrable or not, delves into the power of disposal the parties have over the subject matter of the dispute. Essentially, the parties are free to submit to arbitration any dispute relating to a right over which they have dispositive power (property rights, contractual obligations, etc). 

In the vast majority of arbitration agreements examined by the Greek courts, the courts respect the parties’ determination of the law governing the agreement. This presupposes, of course, that there is either an explicit or a silent but evident choice of governing law by the parties. 

The Greek civil courts tend to adopt a pro-arbitration stance (favor arbitrandum). This approach has been also explicitly adopted by the new Law (5016/2023) regarding international arbitration, according to which (Article 11 thereof) the arbitration agreement is considered valid, in case it complies with either of the following alternatives: (a) with the law chosen by the parties; (b) with the law of the seat of the arbitration; or (c) with the law governing the substantive agreement. 

Separability

It is quite usual for arbitration agreements to be construed in the form of arbitral clauses. In such cases, issues may arise regarding the proper treatment of the arbitration clause and the principal agreement, ie, whether they are united or distinct. Greece is no exception as regards the application of the internationally dominant principle of “separability” of the arbitral clause. 

More specifically, the principle of separability is expressly reflected in Article 23.1 of Greek Law 5016/2023, which, in line with the pertinent provision of the UNCITRAL Model Law, provides that “an arbitration clause which forms part of a contract shall be treated as a separate agreement, independent of the other terms of the contract. The nullity of the contract shall not entail ipso jure the invalidity of the arbitration clause [contained therein].” Hence, under Greek law, an arbitral tribunal may be competent to rule on disputes arising from an invalid agreement, on the basis of an arbitral clause included therein. 

Agreements

Be that as it may, the recognition of the autonomous character of the arbitral clause does not necessarily lead to the absolute detachment of the arbitral clause from the substantive agreement of the parties. More specifically, as already indicated in 3.1 Enforceability, the arbitration agreement (regardless of its structure as a self-standing agreement or as a clause included in another agreement), although regulating procedural issues, is not deprived of its contractual character. As a result, its valid conclusion rests upon the parties’ legal capacity to enter into that agreement. By way of a negative condition, the parties’ expressed will needs to be free of defects - such as fault, threat and/or fraud - in order to be binding. In this vein, an arbitral agreement that is construed in the form of a clause included in a broader commercial agreement would most likely be negotiated and agreed upon under the same conditions as the commercial agreement, in the sense that any defects of the parties’ will have an impact on the arbitral clause as well. 

Moreover, the parties are always free to agree that the validity of the arbitral clause shall rest upon the validity of the overall commercial agreement of which it forms a part. Naturally, an agreement with that content, which deviates from the default provisions of Greek Law 5016/2023, must be concluded in writing in order to bind the arbitral tribunal.

Court Approach

The Greek courts have adopted a rather uniform approach on the matter, holding that an arbitral clause shall be valid even after the termination or expiration of the principal commercial agreement, governing even claims on the basis of tort or unjust enrichment, to the extent that such claims stem from the principal agreement. 

The principal limits applicable to the parties’ freedom to appoint the arbitrator(s) of their preference coincide with the concepts of impartiality and independence of the arbitral tribunal. 

The necessity for an impartial and independent tribunal is inherent to international commercial arbitration and has been adopted by the UNCITRAL Model Law and, accordingly, by Greek Law 5016/2023 (Article 18 thereof). 

To the extent that the parties did not agree otherwise, the default provisions of Greek Law 5016/2023 shall set the procedural framework for the appointment of the arbitral tribunal. 

As per Article 15 of Greek Law 5016/2023, if the arbitral tribunal is to have three members, each party shall appoint one arbitrator. These two arbitrators shall then appoint the third arbitrator. Each party shall have 30 days from the receipt of a request to appoint an arbitrator to proceed with that appointment. Likewise, the two appointed arbitrators shall have 30 days from their appointment to agree on the third arbitrator. In case any of the parties omit to appoint an arbitrator following the aforementioned 30-day deadline or the parties fail to agree either on the sole or on the third arbitrator, the latter shall be appointed, upon request of a party, by a single-member court of first instance (Article 15.4 of Law 5016/2023).

In case of multiparty arbitrations, in the sense that there exist more than one claimant and/or respondent, unless otherwise agreed by the parties, if the arbitral tribunal is to have more than one member, each side shall appoint one arbitrator. If the parties are not able to agree on the arbitrator of their side, the appointment is made by the competent single-member court of first instance (Article 16 of Law 5016/2023). 

If the parties cannot successfully appoint the arbitral tribunal by the method initially agreed between them or by the method provided by law, Article 15 and Article 16 on multiparty arbitrations shall apply. Failure to appoint the arbitral tribunal may be either a result of the parties’ disagreement over the choice of a sole arbitrator or a disagreement of the already appointed arbitrators over the appointment of the third arbitrator. 

As per Article 15 of Greek Law 5016/2023, if an agreement over the appointment of the arbitral tribunal is unattainable, any party may request a single-member court of first instance to decide on the matter by virtue of a decision that is not subject to appeal. As regards the territorial competence of the court, this is primarily determined by the seat of arbitration, or otherwise by the (permanent, otherwise temporary) residence of the party filing the request for appointment. If the party filing the request has no permanent or temporary residence, the single-member court of first instance of Athens shall be competent. 

In the same spirit as the UNCITRAL Model Law, a single-member court of first instance, in appointing an arbitrator, shall pay heed to any qualifications required of the arbitrator by the parties’ agreement, the preservation of the independent and impartial character of the tribunal and, in certain cases, the nationality of the parties.

Finally, the national courts may intervene in the selection of arbitrators in the context of challenge proceedings. More specifically, as per Article 19 of Greek Law 5016/2023, if the challenge of an arbitrator under any procedure agreed upon by the parties or under the procedure stipulated by law is not successful, the challenging party may request the single-member court of first instance to decide on the challenge, by virtue of a decision that shall not be subject to appeal.

The challenge or removal of arbitrators is governed by Articles 18 et seq of Greek Law 5016/2023. 

The principal grounds for challenging an arbitrator under Greek law are the existence of justifiable doubts as regards their impartiality and/or independence. The standard of impartiality and independence of the arbitrator is of a mandatory nature and applies irrespective of any agreement of the parties on the matter. 

The lack of impartiality and/or independence, however, is not the sole ground for successfully challenging the appointment of an arbitrator. The parties may also have included in their arbitral agreement certain qualifications which need to be met by a prospective arbitrator. The lack of such qualifications may, once again, give rise to the challenge of the arbitrator.

The principles of impartiality and independence are construed in a rather abstract manner, both under Greek Law 5016/2023 and under the rules of the principal arbitration institutions used in Greece (ICC, LCIA, EODID). 

In that context, the IBA Guidelines have been a common point of reference among Greek practitioners in the field. Those guidelines are construed in the form of a list of indicative circumstances which: 

• do not need to be disclosed by prospective arbitrators (green list); 
• should be disclosed by prospective arbitrators (orange list); 
• constitute severe conflicts which can be excused by duly informed parties (waivable red list); or
• constitute incurable conflicts that impede the appointment of the arbitrator (non-waivable red list).

As per Greek Law 5016/2023 an arbitrator, as of their appointment and throughout the arbitral proceedings, shall disclose to the parties, without delay, all circumstances raising justifiable doubts regarding their impartiality and/or independence. Naturally, with respect to events that occurred prior to the arbitrator’s appointment, the relevant duty is met if the arbitrator had already informed the parties prior to their appointment. 

Since arbitration is founded on a relevant agreement between the parties (ie, on their free will), the subject matters that can be referred to arbitration may only include rights that the parties are free to dispose (property rights, contractual obligations, etc). Conversely, subject matters traditionally excluded from arbitration by Greek case law and theory are marital disputes, disputes between parents and children, labour disputes, disputes relating to insolvency or enforcement proceedings, etc. 

An arbitral tribunal is competent to examine and rule on challenges to its own jurisdiction (Article 23 of Law 5016/2023). The rationale of the relevant provision, acknowledging the tribunal’s competence-competence, is based on two core evaluations governing the arbitral proceedings:

• the arbitral tribunal, as well as the arbitration in general, are considered as equal and parallel institutions to the national courts in awarding justice; and 
• due to the autonomous nature of the arbitration agreement in relation to the overall commercial agreement between the parties, the arbitral tribunal may, in principle, be called to rule on its own jurisdiction even when the substantive agreement relating to the dispute (or part of it) is invalid. 

An ordinary court may examine issues of jurisdiction of an arbitral tribunal, in the context of a petition for annulment either of the arbitral award (in whole) for lack of jurisdiction of the arbitral tribunal or of the partial or preliminary award of the tribunal concerning solely its jurisdiction. The ordinary court's intervention may also take place in the context of an action brought before such court. 

Petition for Annulment

An arbitral tribunal’s judgment in relation to its jurisdiction may be challenged either in the context of a petition for annulment of the award in total or, upon agreement of the parties or further to the arbitral tribunal’s consent, in the context of a petition for annulment of the tribunal's partial or preliminary award concerning solely it jurisdiction. The time limit to challenge a partial or preliminary arbitral award on jurisdiction, following necessary consent, is 30 days from the provision of consent or of the service of the award (whichever occurs last). According to Article 43.2.a.aa., an award denying the tribunal's jurisdiction may also be challenged by means of a petition for annulment. 

Action Before the National Courts

If an action is brought before the national court in a matter that is subject to an arbitration agreement, the court refers the parties to arbitration, if a party so requests at the first hearing. The court, in principle, merely examines the existence of an arbitration agreement, unless the counterparty of the party invoking the objection challenges the arbitration agreement as null and void, inoperative or incapable of being performed. In such cases, the court shall also examine the grounds of the relevant challenge (Article 12 of Law 5016/2023). 

Taking into consideration that the arbitral tribunal is competent to examine its own jurisdiction, the party questioning that jurisdiction must raise a relevant plea up to the time of submission of the party’s statement of defence. If the relevant deadline lapses, the party is, in principle, excluded from challenging the arbitral tribunal’s jurisdiction before the courts at a later stage (unless the belated raising of the objection is justified).

With regard to the timing of the challenge before the courts, as mentioned in 5.3 Circumstances for Court Intervention, the content of the relevant decision on jurisdiction is crucial. In particular, if the arbitral tribunal decides in favour of its jurisdiction, that decision may be challenged only after (and as part of) the tribunal’s final decision on the substance of the dispute unless the parties have agreed otherwise or the arbitral tribunal consents. As already mentioned, the time limit to challenge a preliminary or partial arbitral award on jurisdiction, following relevant consent, is 30 days from the provision of such consent or the service of the award (whichever occurs last). If the arbitral tribunal decides negatively with reference to its jurisdiction, the interested party may challenge that decision by a petition for annulment, as soon as the decision is issued and served to it. 

The examination of an arbitral tribunal’s jurisdiction by national courts in the context of actions brought before them (see 5.3 Circumstances for Court Intervention) is in any case de novo, since the arbitral tribunal may not be appointed at this stage or the two different proceedings may run in parallel.   

If the judicial review takes place in the context of a petition for annulment, as has repeatedly been held by the Greek courts, the examination of the annulment grounds, by means of which the jurisdiction of the arbitral tribunal may also be challenged, has a deferential character, in the sense that the national court is not allowed to re-examine the factual background accepted by the arbitral tribunal. However, the above-mentioned case law has been formed in connection with petitions based on violation of public policy, rather than on issues of jurisdiction. Court decisions examining issues related to jurisdiction seem to be laxer as regards factual assumptions made by the arbitral tribunal; this approach seems to also be adopted by part of the theory. 

As already mentioned in 5.3 Circumstances for Court Intervention, the relevant legal provisions induce the national courts to abstain from the commencement of litigation proceedings, in breach of an arbitration agreement. 

In particular, as per Article 12.1 of Greek Law 5016/2023, the national court shall refer to arbitration any dispute brought before it if it ascertains the existence of an arbitration agreement. The examination of the arbitration agreement’s validity may follow not on the court’s own initiative but only if a relevant objection is raised by the other party, alleging that the arbitration agreement is null and void, inoperative or incapable of being performed.

In the same vein, as per Article 12.2 of Law 5015/2023, the commencement of proceedings before a national ordinary court, despite the existence of an arbitration clause, does not hinder the commencement or the development of arbitral proceedings in parallel.   

Assuming that Greek law is applicable, the arbitration agreement, due to its contractual character, binds, in principle, only the signatories, since a party cannot be deprived from its natural judge without its agreement. However, Greek case law and theory accept some exceptions to this rule, where the arbitration agreement may bind third parties as well, such as the following:

• in cases of contracts concluded to the benefit of a third party or of contracts having a protective effect towards third parties;
• in cases of succession of a signatory by a third party or of transfer of business;
• in cases of the executor of a will, of the administrator of a property, or of the administrator in a bankruptcy; and
• in cases of lifting of the corporate veil, either as regards the relationship between company and shareholder or in the context of a group of companies, where the arbitration agreement may be “extended” in order to also include the shareholder or the mother (or in general the controlling) company or the remaining companies of the group, which have or have not signed it. 

The foreign or domestic character of the parties may be relevant as regards the determination of the applicable law in the arbitration agreement, which will further determine the potential extension of the subjective boundaries of said agreement to third parties. 

Moreover, Article 24 of the new Law 5016/2023 which regulates multiparty arbitrations states that the arbitral tribunal has the power to accept to the arbitral proceedings a party who is bound by the arbitration agreement either as a claimant or respondent or as an additional intervener with a legitimate interest in the resolution of the original dispute. Following acceptance of such an expansion of the ratione personae scope of the arbitral proceedings, the new parties have the same rights and obligations as the initial parties to the arbitration. 

As per Article 25 of Greek Law 5016/2023, unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any interim or preliminary measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. Accordingly, the arbitral tribunal has the power to amend, suspend or terminate an interim measure already granted by them. The relevant decision may be rendered in the form of either an interim award or a procedural order, which is kept in the arbitral tribunal’s minutes. If the relevant decision bears the form of an interim award, it must comply with the form and content stipulated in Article 40 of Greek Law 5016/2023, which essentially reflects the provisions of Article 31 of the UNCITRAL Model Law. 

Interim or preliminary measures can only be imposed upon persons participating in the arbitral proceeding - not upon third parties - and must be connected to the subject matter of the dispute. In addition to the above-mentioned limitations, it is equally important to clarify that the arbitral tribunal’s decision is binding upon its issuance and all parties must comply with its content. Should the party to whom the application for provisional measures is addressed fail to comply with the arbitral award, the intervention of a competent Greek court (ie, a single-member court of first instance or the Civil District Court of the locus executionis) is needed, as per Article 25.5 of Greek Law 5016/2023 and Article 683.1 and 4 of the Greek Code of Civil Procedure. 

The Arbitral Tribunal

As far as the conditions of Greek Law 5016/2023 are met, the arbitral tribunal may order any measure it deems appropriate in view of the circumstances. In the context of that exercise, the arbitral tribunal is not bound by the parties’ will, in the sense that it may order an interim or preliminary measure different from the one requested by the parties. Furthermore, the arbitral tribunal is not bound by the provisions of the Greek civil procedural law as regards the type of relief (conservatory, provisional, protective) that can be granted, save for ones that infringe Greek international public policy (eg, anti-suit injunction or pre-trial discovery). The arbitral tribunal may also require any party to provide appropriate security in connection with the interim or preliminary measure ordered.

The role of the national courts in the context of granting preliminary and interim relief in international commercial arbitration proceedings is essential and can be examined in two stages: (i) prior to, and (ii) following the appointment of the arbitral tribunal. 

More specifically, prior to the appointment of the arbitral tribunal, and subject to the parties not having agreed otherwise (as indicated below regarding the appointment of an emergency arbitrator), the Greek courts have the exclusive competence to grant interim relief to the parties. After the appointment of the arbitral tribunal, the arbitral tribunal and the national courts are, in parallel (not ancillary), competent to grant interim or preliminary relief as regards the dispute which has been brought before the arbitral tribunal. The establishment of two “parallel competences” (of the arbitral tribunal and the national courts of Greece) stems from Articles 13 and 25 of Greek Law 5016/2023. In the event of recourse to both the arbitral tribunal and the competent national court, the competence is determined on the basis of precedence. 

Furthermore, as already indicated above, the intervention of the Greek courts is necessary for the recognition and enforcement of an arbitral decision ordering interim or preliminary relief, in the event that the parties do not voluntarily adhere to the decision of the arbitral tribunal. In that event, the competent national court shall recognise and declare enforceable a relevant award, refusing to do so only on grounds of public policy, within the meaning of Article 43.2.b.bb, or in cases where the national courts are already examining a relevant request to order a similar interim measure. 

Unlike what happens in certain jurisdictions, Greek law does not provide for the national courts’ competence to grant interim relief in aid of foreign-seated arbitrations. 

Emergency Arbitrators

The use of emergency arbitrators is not restricted under Greek law. To the contrary, the wording of Article 25.1 of Greek Law 5016/2023 indicates that the arbitral tribunal’s competence to order interim or preliminary measures is merely the default provision, which can be set aside if the parties wish to do so. In that context, the parties may agree that urgent interim measures that cannot await the constitution of an arbitral tribunal may be examined through recourse to “emergency arbitrator” proceedings.

Irrespective of the appointment of an emergency arbitrator, the national courts of Greece continue to play a role in preliminary or interim relief procedures. More specifically, as per Article 13 of Greek Law 5016/2023, the arbitral agreement does not impede the national courts of Greece from ordering interim or preliminary measures, in respect of the subject matter of the dispute, prior to or following the initiation of the arbitration proceedings.

Under Greek Law 5016/2023 (Article 25.1), in the same spirit as the UNCITRAL Model Law, arbitral tribunals are allowed to order security for costs.

According to Greek law, save for provisions of mandatory law (eg, the right of each party to present its case and to be treated equally), the parties are, in principle, free to agree on the procedure to be followed by the arbitral tribunal in conducting the arbitral proceedings. Since the parties are free to determine the procedural rules, they are also free to assign such duty to an organisation of institutional arbitration or to adopt directly the rules of the relevant institution (eg, the ICC or the LCIA rules). If the parties do not exercise this power, the procedural steps shall be determined by the arbitral tribunal itself, which, however, shall take into account the common will of the parties.

Since, as mentioned in 7.1 Governing Rules, the procedural steps to be followed are either determined by the parties, upon their agreement, or by the arbitral tribunal, there are no steps determined by law in a mandatory manner. 

However, Greek Law 5016/2023 contains certain default provisions, in case of the absence of an agreement between the parties, which regulate certain procedural steps of the arbitral proceedings. Such default rules regulate, for example, the commencement date of the arbitral proceedings (Article 29) and the deadlines for the submission of the respondent’s defence (Article 31), as well as the appointing (Article 15) and challenging of the arbitrators (Article 19). 

As mentioned in 7.1 Governing Rules, Greek law gives the arbitral tribunal the power to determine the procedural rules governing the arbitration proceedings if the parties fail to agree on them. In that context, the arbitral tribunal is free to choose an already established procedure or to form a “mixed” system combining and adjusting provisions to the requirements of the specific arbitration. The arbitral tribunal may also determine the rules to be applicable throughout the process or determine the rules gradually, at each stage of the proceedings. Notably, even if the rules are a priori determined for the entire process, the arbitral tribunal remains free to re-examine its decision and adjust the proceedings to the particularities of the specific dispute. 

Finally, according to Greek law, the power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance and materiality of evidence.

There are no particular qualifications required by law for legal representatives appearing before an arbitral tribunal. Any lawyer with an active licence may represent their client in an arbitration. 

As mentioned in 7.1 Governing Rules, the procedural rules of the arbitration are determined by the arbitral tribunal, in consultation with the parties. The rules governing the collection and submission of evidence are considered procedural ones and are thus determined in the same manner.

It is quite common, for both the parties and the arbitral tribunal, to adopt the rules already established by an organisation of institutional arbitration (such as the IBA Rules on the Taking of Evidence in International Commercial Arbitration), subject to the preservation of the parties’ equality of arms.

As per Article 27 of Greek Law 5016/2023, the rules of evidence applicable to arbitral proceedings seated in Greece shall be determined by the parties. In that context, the parties may, for instance, enhance or relax the level of certainty required for the formation of the arbitral tribunal’s judgment on specific matters. 

In the absence of an agreement of the parties on the matter, the arbitral tribunal may conduct the arbitration proceedings in the manner it deems appropriate. In that context, it may also apply the pertinent rules of the Greek Code of Civil Procedure.

Although the arbitral tribunal has the power to examine and decide on the dispute brought before it or to order the parties to submit documents or other means of evidence (Article 35 of the Law 5016/2023), it does not have any power of compulsion to force either the claimant or the respondent or third parties (eg, factual or expert witnesses) to participate in the arbitral proceedings. Moreover, the tribunal does not have the power to force third parties to present documents or to carry out evidence proceedings in a foreign jurisdiction; in such cases the arbitral tribunal may ask for the intervention of the national courts of Greece (as per Article 36 of the Law 5016/2023). Be that as it may, the arbitral tribunal has ways to put pressure on the parties in order to make them comply with its decision, such as the drawing of adverse inferences from a party’s unwillingness to present requested evidence.

More specifically, as per Article 36 of Greek Law 5016/2023, a request to the national court, asking for its intervention in taking evidence, may be filed either by the arbitral tribunal or by a party following the tribunal’s approval (for the avoidance of delay or abusive behaviour by the parties). 

The need for court assistance may derive either from the arbitral tribunal’s inability to proceed to a certain procedure for the collection of evidence or from the tribunal’s inability to impose compulsory measures which might be necessary for the collection of evidence.

The arbitral proceedings, which include all information or documents exchanged in the context of the procedure as well as the arbitral award itself, are considered confidential by the Greek legal system. According to Greek scholars, the confidentiality derives as a supplementary obligation from the arbitration agreement itself and binds not only the disputing parties but all the signatories to the agreement, as well as the members of the arbitral tribunal. The rationale of such obligation relates to the nature of international arbitration and in particular to the interest of the parties not to publicly disclose business secrets (to the extent that the dispute relates to business secrecy). 

This approach is also reflected in Article 27.3 of Law 5016/2023, which establishes the rule of confidentiality (with respect to the existence of the arbitration, the arbitration proceedings and the arbitral award) subject to the parties’ or the arbitrators’ autonomy. 

As regards its external characteristics, the arbitral award shall be made in writing and be signed by the arbitrator(s). In arbitral proceedings with more than one arbitrator, the signatures of the majority of the members of the arbitral tribunal shall suffice, provided that the reason for any omitted signature is stated. 

With reference to its content, the award shall include not only an operative part, but also the reasoning upon which it is based, unless otherwise agreed by the parties. It shall also state the date of its issuance, which indicates the termination of the arbitral proceedings and the expiration of the relevant power of the arbitral tribunal, as well as the place of arbitration, which determines the competent courts for a possible petition for annulment of the award. 

The law does not provide for any time limits on delivery of the award; however, such time constraints may derive from the arbitration agreement itself or from the applicable institutional rules. 

The issue of possible limits on the types of remedies that may be awarded by an arbitral tribunal arises mainly ex-post either on the level of a petition for annulment before the Greek courts or of a petition for the acknowledgement and/or enforcement of the award. In such cases, the Greek court shall decide whether the acknowledgement or enforcement of a particular remedy would, at that time, be opposed to Greek public policy (ie, those rules of mandatory law that have been introduced to the benefit of public interest and reflect the basic and fundamental perceptions of the society). 

With reference to specific remedies, the Greek Supreme Court has judged (so far), with regard to punitive damages, that the enforcement of a foreign court decision awarding punitive damages is not in abstracto opposed to Greek public policy, to the extent that it is not excessively disproportionate; the same approach has been adopted indirectly in the form of an obiter dictum with reference to an arbitral award as well. 

As regards injunctions, Greek law recognises in specific cases (eg, violation of the right to personality or violation in the field of competition) the right of the person injured due to the violation to request that the courts order the culprit to omit the illegal act. Greek legal theory supports the expansion of such a right when suitable; therefore, in principle, the remedy of injunction cannot be considered, in general, opposed to Greek public policy.

The parties’ entitlement to recover interest is treated by Greek law as an issue to be answered by the substantive law governing the relevant dispute. 

As regards the recovery of legal costs, subject to the parties' opposite agreement, the arbitral tribunal decides on the costs split taking into account the circumstances of the case and the "flow" of the arbitral proceedings, especially the parties' procedural behaviour, for example requests unreasonably delaying the proceedings, requests resulting in a significant increase in costs, etc.

The parties are entitled to challenge an arbitral award, by means of a petition for annulment of the award, only for specific reasons. A party cannot create an annulment ground stemming from its own acts or omissions. More specifically, an arbitral award may be set aside by the competent court, following a relevant petition, only if: 

• the party making the application furnishes proof that: 
1. a party to the arbitral agreement lacked the legal capacity under the law determining such capacity or that the arbitral agreement is not valid under the law to which the parties have subjected the arbitration agreement to or the law of the seat of the arbitration or finally the law governing the parties’ substantive agreement or that the arbitral tribunal found that it lacked jurisdiction despite the existence of a valid arbitration agreement; or
2. the claimant was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present his case; or
3. the arbitral award deals with a dispute that is not covered by the arbitration agreement or contains provisions that go beyond the scope of the agreement or contains decisions on matters beyond the scope of the submission to arbitration or the claims submitted to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award that contains decisions on matters not submitted to arbitration may be set aside; or
4. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with Law 5016/2023; or
5. the sixth or/ and tenth ground for the extraordinary remedy of reopening of Article 544 GCCP are fulfilled. More specifically, according to Article 544 6) of GCCP the remedy of reopening is allowed, if the challenged decision is based on a false statement by a witness or a party, a false report or statement by an expert, a false oath by a party or a witness under oath, or forged documents, if the falsehood or forgery has been recognised by an irrevocable judgment of a criminal court and, in the case of a statement by a party, by a judicial or public, oral or written, confession made by the press and other media or via the Internet. Furthermore, the tenth ground states that the remedy of reopening is allowed, if the content of the challenged decision was substantially affected by bribery or other intentional misconduct on the part of a judge who participated in its issuance, provided that the bribery or misconduct is proved by an irrevocable judgment of a criminal court. 
• the court, examining a petition for annulment, finds that: 

1. the subject matter of the dispute is not capable of settlement by arbitration under Greek law; or 
2. the award is in conflict with the Greek public policy, in the meaning of Article 33 of the Greek Civil Code, regardless of whether domestic or foreign law was applied in the particular case.

The petition for annulment is submitted before the Three Member Court of Appeal of the place of issuance of the arbitral award and if this cannot be determined, the Athens Three Member Court of Appeal; the deadline for the submission of the petition is three months from the date of formal service of the award to the interested party (with the exception for the ground regarding the remedy of reopening). The details of the proceedings are governed by the relevant provisions of the Greek Code of Civil Procedure. 

As per Article 35.2 of Greek Law 2735/1999, the parties had the right to expand the scope of challenge of an arbitral award, through the inclusion in their agreement to arbitrate of an additional remedy against the arbitral award (ie, by providing for the parties’ right to file an appeal against the arbitral award before another arbitral tribunal). However, Article 44 of the new Law 5016/2023 includes no written reference to such provision. 

The new Article 43.7 of Law 5016/2023 provides for the parties’ power to waive at any time - by written, express and specific agreement to that effect - their right to apply for the setting aside of the arbitral award. In this case, the parties retain the right to raise such grounds in the context of the enforcement/execution proceedings (as grounds for opposition to such enforcement/execution). As accepted by Greek jurisprudence, so far, the parties may validly exclude or restrict the scope of a petition for annulment in the context of a relevant agreement, as long as that agreement is ratified by law; in such cases, and as long as such exclusion or restriction derives in a clear manner from that agreement, the law ratifying the agreement and allowing the waiver shall be considered as lex specialis, and therefore prevailing, compared to the general provision which forbids the waiver of the petition for annulment.

The issue regarding the deferential or de novo judicial review of the arbitral award has mainly arisen in Greek case law with reference to petitions for annulment due to an alleged violation of public policy. The prevailing opinion of Greek jurisprudence is that the Court of Appeal, as competent court for the annulment of arbitral awards, may not re-examine the findings of the arbitral tribunal on the merits of the case; otherwise, the acceptance by the Court of Appeal of facts or allegations that have been rejected by the arbitral tribunal would equate to a retrial of the case and would negate both the final character of the judgment adopted by the arbitral tribunal as well as the foundation of the parties’ agreement as regards the arbitration clause. 

Greece acceded to and ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). According to Article 2.1 of Legislative Decree 4220/1961, the New York Convention was ratified with both the reservations included in Article 1.3 of that Convention. This means that the New York Convention is applicable under the conditions that:

• the arbitral award has been issued in a state which has ratified the New York Convention; and
• the nature of the dispute is commercial. 

It is noted, however, that Article 45 of the new Law 5016/2023 establishes the New York Convention as the general applicable legal regime for the recognition of and enforcement of foreign arbitral awards, even in those cases where the foreign arbitral award under recognition does not fall within the scope of the New York Convention.

Moreover, Greece has concluded several bilateral agreements (among others, with the USA, Cyprus, Germany, Romania, Lebanon, Hungary, Syria, Tunisia, Albania, China, Georgia and Armenia), which may take precedence over the New York Convention, depending on their antecedence over the New York Convention (Article 7.1 of the New York Convention).

According to Article 3 of the New York Convention, the procedure to be followed for the enforcement of an arbitral award is the one followed in the “territory where the award is relied upon”. In this respect, according to Articles 905 and 906 of the Greek Code of Civil Procedure, the declaration of the enforceability of an arbitral award takes place by virtue of a decision of a single-member court of first instance, by the rules of non-contentious proceedings. The procedure is, in principle, conducted ex parte; the person against whom the enforcement shall take place is summoned only if the court deems it necessary. 

The party requesting the enforcement of an arbitral award shall, according to Article 4 of the New York Convention, present before the court the duly authenticated original award or a duly certified copy thereof and the original agreement referred to in Article 2 of that Convention or a duly certified copy thereof. If the award and/or the agreement are not drafted in Greek, the party requesting the enforcement shall produce a Greek translation of the document(s).

According to Article 5 of the New York Convention, an arbitral award that has been set aside by the courts of the seat of arbitration cannot be enforced in Greece.

Pursuant to Article 6 of the New York Convention, the courts may suspend the enforcement proceedings if the award presented before them is subject to a set-aside challenge at the seat. Although there are only sporadic cases in Greek jurisprudence, the trend followed by the Greek courts is to suspend such proceedings until the issuance of a relevant judgment at the seat. 

Sovereign Immunity

Regarding the issue of whether a state or state entity may successfully raise a defence of sovereign immunity at the enforcement stage, it should be noted that, according to Article 923 of the Greek Code of Civil Procedure, enforcement actions against a foreign state cannot take place without the prior permission of the Minister of Defence, irrespective of whether the claim arises out of acta jure imperii or acta jure gestionis. In the same vein, the European Court of Human Rights has also confirmed that the potential denial of the Minister of Defence is not in breach of the European Convention of Human Rights. The New York Convention, however, being a source of law superseding the Greek Code of Civil Procedure, does not contain any reservation regarding sovereign immunity. 

In addition to the above, attention should be drawn to the distinct treatment of public and private property of the Greek state. More specifically, in the context of the Greek state’s acting as an imperium, no enforcement measures can be imposed upon the public property thereof. To the contrary, while acting as fiscus, the Greek state may undergo enforcement proceedings interfering with its private assets, in the same manner as private entities.   

The Greek case law regarding the recognition and enforcement of arbitration awards on the basis of the New York Convention is quite limited. As far as public policy is concerned, it should be noted that its meaning in the context of an enforcement procedure does not materially abstain from the meaning attributed to it in the context of annulment proceedings, in the context of which the relevant case law is more extensive.

The Greek courts have ruled that the execution of an arbitral award may not be denied due to breach of public policy, if such award does not comply with Articles 281 (abusive exercise of right), 288 (obligation of the debtor to abide by good faith and business usages), 275 (nullity of the judicial act which modifies the term of prescription), 388 (unforeseen change of circumstances) and 300 (contributory fault) of the Greek Civil Code, or if one party was not represented by a lawyer before the arbitral tribunal. To the contrary, the award of excessive punitive damages, and the execution of an award after the proof of existence of corruption acts, are reasons that have been found to fall within the regulative field of public policy.

Greek law does not provide for class-action arbitration or group arbitration. 

Apart from the standards of impartiality and independence of the arbitral tribunal (as indicated in 4. The Arbitral Tribunal), there are no mandatory ethical codes and professional standards for counsels and arbitrators conducting arbitration proceedings in Greece, apart from the Lawyers’ Code and Code of Conduct (Greek Law 4194/2013). 

Conversely, soft-law provisions such as the IBA Guidelines are growing in popularity among practitioners in the field of international commercial arbitration.

Greek law remains silent on the matter of third-party funding. Although a relevant agreement could, in principle, be considered valid, the Greek practice is by no means familiar with the relevant scheme.

Article 24.2 of the new Law 5016/2023 provides that after relevant request of a party, the arbitral tribunal shall have the power to consolidate and to co-arbitrate another dispute pending between the parties before the same arbitrators or, by express agreement of the parties, before another arbitral tribunal. 

The arbitration agreement may have a binding effect on third parties only in the exceptional cases presented in 5.7 Jurisdiction Over Third Parties. As regards the res judicata effect of an arbitral award on third parties, the relevant law provision regarding international arbitration in Greece refers the issue to the relevant provision of the Greek Code of Civil Procedure, according to which an arbitral award has the same res judicata effect on third parties as the decisions of the national courts. This means that the res judicata of an arbitral award is also extended to the parties’ successors; persons who are in possession of an object on behalf of a party; as well as in the relationships between heir and trustee, administrator of a will and heir, debtor and guarantor and legal entity and its members. 

However, according to the prevailing opinion in Greek legal theory, the above-mentioned provision shall be interpreted restrictively. This opinion is based on the fact that third parties, non-signatories to the arbitral agreement, shall not be deprived from the protection offered by the national courts without their consent. In this respect, scholars accept an expansion of the res judicata produced by an arbitral award only in the exceptional cases described in 5.7 Jurisdiction Over Third Parties, where third parties may also be considered bound by an arbitration agreement they have not signed. Ultimately, such opinion has been incorporated with Article 44.2 of Law 5016/2023 which states that an arbitral award is effective against third parties only if such parties are bound by the arbitration agreement.