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 ever more contracts now include arbitration clauses with Luxembourg as governing law and seat, the use of arbitration will continue to grow. In that respect, the Luxembourg Arbitration Association (the Association), which was founded in 1996 and is dedicated to the promotion and development of arbitration practice in Luxembourg, continues to organise a series of event to share expertise and information on arbitration-related matters. The Association also provides a comprehensive database of Luxembourg and international qualified arbitrators and practitioners.
Considering the COVID-19 pandemic, parties entering into new contracts might consider inserting arbitration clause so as to benefit from the flexibility offered by arbitration proceedings (electronic production of submissions and exhibits, virtual hearings, etc).
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 2015–19, 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). The Arbitration Centre issued a new set of rules on 1 January 2020. These new rules are available in English and French on the website of the Chamber of Commerce, in the Arbitration Centre section.
Over the period 2015–19, the Arbitration Centre has seen a 33% increase in the number of cases compared to the period 2010–14.
At present, there are no courts designated among Luxembourg jurisdictions that specifically hear disputes related to international arbitrations and/or domestic arbitrations.
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 of the NCCP) whereas the UNCITRAL Model Law is tailored to arbitral proceedings. Nevertheless, Article 1225 of the 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 since October 2013 a group of practitioners and academics interested in arbitration, the Think Tank for Arbitration, have worked on a comprehensive reform of the law on arbitration and 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.
Based on such proposal, on 15 September 2020, the Ministry of Justice presented to the Luxembourg Parliament a draft bill of law aiming to modernise the legal provisions of Luxembourg’s arbitration law to align it with international arbitration standards. The legislative procedure is currently ongoing.
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 of the NCCP). In terms of form, it can be drawn up:
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 of the 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 of the 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 or her right to bring his or her claim before a court (promesse d’arbitrage) is void (Article L211-3(13)of the Consumer Code), the law does not prohibit the conclusion of a submission agreement by a consumer.
Save for public establishments placed under the surveillance of municipalities (communes), which have to request a specific authorisation to enter into any arbitration agreement in relation to contracts of (and thus an exposure to disputes in) a value higher than EUR100,000, no specific text under Luxembourg law prohibits public entities to enter into arbitration agreements.
Luxembourg national courts usually enforce arbitration agreements. If one of the parties to an arbitration agreement refers a dispute to a court and the other party to the arbitration agreement invokes the arbitration clause, the court will 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 should be noted that the lack of competence of the courts should be raised in limine litis in order for such argument to be taken into consideration.
It is accordingly 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 or her arguments on merits of the case.
In that respect, the District Court has recently considered that a third party to an arbitration agreement could not, in litigation proceedings in which none of the parties to the arbitration agreement raised the existence of the arbitration clause, invoke the lack of competence of the courts (District Court of Luxembourg, 22 January 2019, No 176.980).
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 5(4) of the 2020 rules of the Arbitration Centre, however, endorses the separability principle and indicates that “unless otherwise agreed, the arbitrator shall not cease to have jurisdiction by reason of any allegation that the contract is non-existent or null and void, provided that the arbitrator upholds the validity of the arbitration agreement”.
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 or 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 of the NCCP).
See 4.3 Court Intervention for the default procedure which applies for the selection of arbitrators where there are more than two parties to the arbitration.
It should be noted that the 2020 rules of the Arbitration Centre include provisions in respect of multiple contracts and multiple parties (Articles 7 and 8 of the 2020 rules of the Arbitration Centre).
Pursuant to Article 1227 of the 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 of the 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 judgment on the challenge, the challenging party has 15 days to lodge an appeal (Article 535 of the NCCP).
During arbitral proceedings, parties can unanimously decide to dismiss one or several arbitrators (Article 1229 of the 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, 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 the NCCP). On that basis, an arbitrator is obliged to disclose facts that may raise doubts as to their impartiality and independence.
The Arbitration Centre has clear requirements in respect of arbitrator independence, impartiality and disclosure (see Article 10 of the 2020 rules of the Arbitration Centre).
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 11 of the 2020 rules of the Arbitration Centre).
See 3.2 Arbitrability.
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 courts of Luxembourg are reluctant to intervene in issues of jurisdiction. As mentioned in 3.3 National Courts' Approach, 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.
There are no specific legal provisions preventing the courts to review negative rulings on jurisdiction by arbitral tribunals.
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.
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 of the 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 they 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 or she shall be bound by the arbitration clause.
No provisions under the Luxembourg law on arbitration prevent, in theory, an interested third party from making 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 2020 rules of the Arbitration Centre now include a provision dealing with the intervention and joinder of third parties to the arbitration proceedings (see Article 6 of the 2020 rules of the Arbitration Centre).
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 2020 rules of the Arbitration Centre now provide for emergency arbitrator provisions (see Article 20 and Appendix III).
The judge sitting in summary proceedings (juge des référés) may order instruction measures, as well as provisional and conservatory measures. They can accordingly:
grant instruction measures, such as measures aimed at obtaining evidence or preventing the disappearance or destruction of evidence (instruction measures in futurum), or
issue a payment order upon request (référé-provision).
Depending on 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 in the event an arbitral tribunal would already be constituted, the request for interim measures would be inadmissible (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. It has been ruled that, without an express renunciation, it cannot be inferred from an arbitration clause that the parties have waived their right to request such interim measures (Court of Appeal, 3 June 2009, No 34203; District Court of Luxembourg, 21 June 2019, No 00209).
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 of the 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 (not 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, 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 of the 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 8.2 Rules of Evidence).
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, 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 of the 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 of the 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) of the 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 of the 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 of the NCCP). The courts have ruled that the oral agreement at a procedural hearing that the arbitrator “could take the time needed to render his [or her] 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) of the 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 2020 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 of the 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, they 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.
Refusal of Enforcement
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 of the NCCP will apply.
Article V lists the following grounds:
Since annulment of an arbitral award is not one of the grounds for refusing enforcement under Article 1251 of the 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 defence of sovereign immunity at the enforcement stage would not be successful. Indeed, 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).
According to Article IV of the New York Convention for a party to apply for the enforcement of an arbitral award, a version of the arbitral award and of the arbitration agreement are to be translated in an official language of the country in which the award is relied upon.
Although the three official languages in Luxembourg are French, German and Luxembourgish, it seems that the requirements of Article IV of the New York Convention are interpreted with some flexibility by the courts. Indeed, it has been ruled that even though no translation in one of the three official languages had been provided in respect of an arbitral award written in English, leave for enforcement was granted on the basis that the judge was able to understand the original language of the arbitral award (Court of Appeal, 5 June 2014, No 40360).
Luxembourg courts have a pro-arbitration approach towards recognition and enforcement of arbitral awards.
It should be noted that Luxembourg courts require a manifest, effective and concrete breach of international public order (Court of Appeal 17 May 2018, No 44420). For example, in a recent case law the Luxembourg courts considered that a party opposing enforcement on the ground that the arbitral award is contrary to public policy due to a fraud in the arbitral proceedings, must not only provide clear and convincing evidence of the alleged fraud, but demonstrate that:
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 for an arbitral tribunal to pronounce the consolidation of separate arbitral proceedings 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.
As far as is known, separate arbitration proceedings have not been consolidated by a Luxembourg court.
A third party may be bound by an arbitration agreement when a contract including an arbitration clause is assigned.
Article 1243 of the NCCP provides that arbitral decisions may not be invoked against third parties.
A Surge of Interest in Luxembourg Arbitration
In recent years, Luxembourg is clearly experiencing a resurgence of interest in arbitration. This is however not unexpected as Luxembourg enjoys certain factors which naturally contribute to the development of arbitration.
Thus, in regard of the many advantages that Luxembourg possesses to promote the use of arbitration, such as multilingual culture, political stability, location, and the availability of lawyers from numerous cultural and legal backgrounds, with deep knowledge of different legal systems, it is not surprising that Luxembourg has become one of the main arbitration centres worldwide.
In addition to the presence of more than 2,800 lawyers, the country counts on its territory various legal institutions such as, among others, the Court of Justice of the EU, the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and, more recently, the European Public Prosecutor's Office. All these institutions are a magnet for legal expertise from all over the world.
Despite this arbitration friendly environment, Luxembourg was in need of a modern and efficient legislative framework on arbitration, adapted to the new requirements of international trade and finance. Consequently, the Luxembourg arbitration community was strongly involved over the past years on lobbying activities to achieve the enactment of such new piece of legislation.
In that regard, the Luxembourg Arbitration Association, which was founded in 1996 and is dedicated to the promotion and development of arbitration practice in Luxembourg, recently re-started to actively organise a series of events to share expertise and information on arbitration-related matters. The Association also provides a comprehensive database of Luxembourg and international qualified arbitrators and practitioners, and launched in 2019 the very first edition of the Luxembourg Arbitration Day.
Reforming arbitration provisions
The most notable development over the past year constitutes nevertheless the long-awaited draft bill reforming the arbitration provisions in the Luxembourg Code of Civil Procedure that was submitted to Parliament on the 15 September 2020 by the Minister of Justice.
Such bill, based on the work of a Think Tank of legal experts for the development of arbitration in Luxembourg, retained the best amongst the international arbitration rules and Belgian and French law on this subject. Furthermore, the bill intends to redefine the legal bases of the arbitration regime by relying on the provisions of the UNCITRAL model law on international commercial arbitration.
Consequently, the entire arbitration regime under national law is restated, from the execution of the arbitration agreement, to the enforcement of the final award, and it is clear that the draft bill will provide the country with a body of coherent, modern rules recognised by the international business community and international arbitration practitioners, with the objective to create a streamlined arbitration regime in Luxembourg, offering the advantages of flexibility, speediness and confidentiality, and representing a valid and effective alternative to the local courts.
All the above clearly demonstrates that arbitration is experiencing a real upswing in Luxembourg, which is further reflected by the emergence of several significant court decisions over the past years. Therefore, this article aims at presenting the development of arbitration law and practice in Luxembourg by reviewing selected court decisions, and by giving a brief presentation of the above-mentioned draft law.
Recent Court Cases
Micula v Romania, Judgment of the Luxembourg Court of Appeal of 11 February 2021, No 15/21
On 11 February 2021, the Luxembourg Court of Appeal handed down a landmark case consisting in the first decision in Luxembourg on the recognition and enforcement of arbitral awards issued by the International Centre for Settlement of Investment Disputes (ICSID). Furthermore, the Court reaffirmed the autonomous recognition regime and confirmed the recognition and the enforcement of arbitral award issued by an ICSID arbitration panel pursuant to the “Washington Convention” strictly limiting the degree of judicial review and the possibility to refuse recognition.
Thus, as to the facts of the case, it should be noted that in the 1990s, the Romanian state granted various financial advantages to foreign investors in order to attract outside capital and from which the Swedish investors Micula benefited. In 2005, in order to join the European Union, Romania had to question these incentives, which were considered state aids contrary to European competition law. As soon as it applied for accession, Romania was however caught in a normative vice: maintaining the advantages was contrary to European Union law, but revoking them violated the standards of protection of international investment law, in particular the Bilateral Investment Treaty (BIT) between Sweden and Romania. Based on the latter, the investors referred however the matter to an arbitration tribunal under the aegis of the ICSID.
The dispute went from being a substantive one to a jurisdictional one. Despite Romania's defences and even the European Commission's observations as amicus curiae, the arbitral tribunal declared nevertheless itself competent.
In an award of 11 December 2013, the arbitral tribunal ordered Romania to compensate the Micula brothers in the amount of EUR 178 million for breach of the fair and equitable treatment clause of the Sweden-Romania arbitration tribunal and the investors consequently sought to garnish various accounts held by Romania in the Grand Duchy of Luxembourg.
As the recognition of a foreign award does not automatically allow for its enforcement, exequatur proceedings were however necessary to enforce the claim under the said award.
In the decision at hand, the Court of appeal dealt with the recognition petition of the said arbitral decision. Thus, for the first time in Luxembourg, the Court of appeal had to deal with the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the “Washington Convention” or “ICSID Convention”) ratified by the Luxembourg parliament on 8 April 1970, and which lays down specific rules in relation to the recognition of ICSID awards. While the Luxembourg courts have clarified on numerous occasions the modalities surrounding the 1958 New York Convention, case law relating to the 1965 Washington Convention remains non-existent.
In fact, the recognition and execution of foreign arbitral awards are usually mainly governed by the New York Convention of 1958 (the “New York Convention”), whose scope and applicability has already been clarified in a series of Luxembourg law precedents. As the New York Convention provides that, under certain conditions, a state court may refuse to recognise and enforce an arbitral award, the Luxembourg courts had also made it clear that where a convention on the recognition and enforcement of arbitral awards has been ratified by Luxembourg, the domestic provisions of Article 1251 of the Luxembourg Code of Civil Procedure (which provides specific grounds for refusing to recognise and enforce an award) do not apply. However, no such decision had been issued so far with regard to the Washington Convention.
The Romanian State, in order to obtain the refusal of the exequatur of the arbitral award, argued that the arbitral award in question should not be granted recognition, on the grounds of Article 1251 of the Luxembourg Code of Civil Procedure.
Reminding the governing principle it held in relation to the New York Convention, ie, that the internal provisions provided by Article 1251 of the Luxembourg Code of Civil Procedure do not apply in case an international convention applies, the Court of appeal rejected however the application of any internal provisions which could warrant a refusal of an exequatur request of an ICSID award.
While the conclusion may seem self-evident, in regard of the prior decisions rendered based on the New York Convention, a clarification was however needed to get the legal certainty that the competence-competence principle also applies to the Washington Convention. The Washington Convention foresees an autonomous recognition mechanism, and states that ICSID awards are automatically recognised in any ratifying State, as if they were a final judgment of the national courts, and does not provide for grounds of refusal by national courts.
The Court of Appeal’s decision enforced such mechanism, and therefore refused national requirements to be applied to the recognition of ICSID awards.
It appears therefore that national courts have very little discretion, if any, to oppose the recognition of such an arbitral award. Indeed, the Luxembourg judge may only proceed to the verification of the existence of the award, as provided for under Article 54-1 of the Washington Convention.
The impact of this decision in the Grand Duchy of Luxembourg is notable, as it sets clear boundaries to national law and the power of national courts in cases where the Washington Convention applies. Indeed, based on this landmark decision, the Washington Convention, as a strict and autonomous instrument, does not give any ground to challenging the recognition of an ICSID award, leaving the debate fully opened when it comes to the enforcement of such recognised award in Luxembourg.
Judgment of the District Court of and in Luxembourg of 8 January 2021, No 2021TALCH11/00001
On 8 January 2021, the Luxembourg District Court handed down another landmark case affirming for the first time that in regard of the application of the principle under which criminal proceedings stay the civil procedures, (le criminel tient le civil en état) the enforcement proceedings of an arbitral decision should be stayed whenever criminal proceedings were initiated at the same time, and in close connection with the enforcement of the latter arbitral decision.
As to the facts of the case, it should be noted that two entrepreneurs of Moldovan and Romanian nationality had acquired 100% of the shares of two Kazakh companies. As, prior to their acquisition both investors had however obtained permission from the Republic Kazakhstan to explore and develop various oil and gas fields in Kazakhstan under subsoil use contracts, they decided to build a liquefied petroleum gas plant in Kazakhstan.
At the end of 2008, the Kazakh authorities identified however a number of serious shortcomings in the activities of the Kazakh companies. Indeed, after receiving information that one of the investors was using the companies for illegal activities in order to invest in countries subject to UN sanctions, the Kazakh authorities conducted an investigation into the activities of the companies. This investigation revealed a number of serious shortcomings, including tax evasion and breaches of obligations under the subsoil use contracts. Because of these breaches, the Ministry of Oil and Gas of the Republic of Kazakhstan terminated the subsoil use contracts awarded to the companies.
Alleging a violation of the Energy Charter Treaty, the investors however initiated an arbitration procedure, which resulted in an arbitral award, which ordered the Republic of Kazakhstan to pay damages to the investors.
The investors initiated various enforcement proceedings of this award around the world, and on 17 December 2017, they initiated attachment proceedings in Luxembourg.
Since the issuance of the award however, and as some doubts concerning the conditions under which the award was issued arose, criminal proceedings were initiated, on suspicions that the latter award was obtained by fraud.
Indeed, the investors seemed voluntarily to have misled the Arbitral Tribunal, and further the Luxembourg courts, in an attempt to obtain the exequatur of the Arbitral Award, by presenting documents they knew to be false and manipulated. The Republic of Kazakhstan therefore filed a criminal complaint in Luxembourg.
In the decision at hand, the District Court of Luxembourg, which had to rule on the validity of the attachment made by the investors, had therefore to deal primarily, on the issue of the stay on the basis of Article 3 of the Luxembourg Code of Criminal Procedure (le criminel tient le civil en état). Under such principle, civil proceedings have to be suspended in the event of ongoing concurrent criminal proceedings. The Court acknowledged the principle and consequently decided to suspend the proceedings awaiting the outcome of the investigations and, potentially, indictments.
Thus, it has been confirmed that the principle expressed by the adage le criminel tient le civil en état is of public order, in the sense that the judge seized of the civil action is obliged, even ex officio, to stay the proceedings from the moment the public action is instituted. The test lies on the identity of the facts submitted to the civil and criminal courts, and the decision rendered by one of the courts cannot fail to have an influence on the decision of the other.
The Court held that when a sufficient nexus between the criminal investigation and the civil case exist, the stay of the proceedings should be granted. The District Court ruled that even if the claimant has an enforceable judicial title, like in this case, this does not prevent the Court knowing of the enforcement of the same from applying the principle the le criminel tient le civil en l’état.
Most notably, the Court mentioned that the enforcement of the award would amount to money laundering, in case the criminal court would afterwards hold the investors’ behaviour as criminal.
The impact of this landmark case is notable whereas in a similar case dating from 2010, the same Court came to exact opposite conclusion, and refused to grant the stay, because of the existence of a criminal investigation. In the latter case, the Court held, in accordance with Belgian and French case law, that the aforementioned principle le criminel tient le civil en état is only applied if the decision to be taken on the public action is likely to influence the decision to be taken by the civil court.
The adoption of a new draft bill due to the need for a modern and efficient legislative framework on arbitration
The codification of the law of arbitration in civil and commercial matters dates back to the Napoleonic era, more specifically to the Code of Civil Procedure of 1806. Since then, Luxembourg arbitration law, although regularly practised in Luxembourg, has not been revamped, despite the globalisation of the economy and legislative reforms of arbitration in neighbouring countries.
Even though Luxembourg's arbitration legislation has been the subject of a very few specific reforms, however, these reforms have never led to a "complete overhaul", which the Council of State had already called for since 1980.
The draft law recently submitted by the Minister of Justice is the result of the work of a group of lawyers qualified in arbitration and judicial procedure who met between 2013–17 to carry out an in-depth study of the subject and to propose a draft bill of law. This bill is therefore the result of the combined theoretical and practical expertise of this group of professionals, who based the draft on the actual needs of the business world.
Three fundamental choices were made by the draft law, the combination of which has contributed to some major innovations. For instance the confirmation of the competence-competence doctrine, the creation of the Luxembourg supporting judge, the exclusion of certain matters from its scope of application, in particular matters deemed protective for a party considered weak (including consumer law, employment law, rent leases and personal status) or the replacement of the District Court by the Court of Appeal as appeal court for an award made in Luxembourg.
The draft bill will now be commented on and discussed in parliament. There is confidence that this draft bill, once voted into law, will surely help streamline and enhance arbitration in Luxembourg, and prepare arbitration for the new challenges that are posed by the fast globalisation of business and finance.