Article 897 of the Code of Civil Procedure restrictively sets out the reasons under which an arbitral award can be annulled.(1) These reasons constitute rules of substantive law and any violations thereof are assessed by the Supreme Court and treated as a deficiency under Article 559(1) of the code.
An arbitration is a contractual proceeding of choice for the binding resolution of a specific dispute by arbitrators, instead of the national courts. As such, judicial protection is not granted by the national courts, but rather the institutions or persons chosen by the parties to the dispute. The arbitration must follow a particular process and meet requisite procedural conditions.
Arbitration and ordinary justice have been developed under the Code of Civil Procedure as parallel and mutually exclusive procedures conducted by dispute resolution bodies. As a genuine act of dispute resolution, arbitral awards have a res judicata effect once they have been issued under the conditions set out in Article 896 of the code (by application of Articles 322, 324 to 330 and 332 to 334 of the code) and can be executed under Article 904(2)(b) of the code.
According to Article 897, an arbitral award can be annulled in whole or in part by a decision from the competent national court only if it is contrary to, among other things, public order provisions or bonos mores (Article 897(6)).(2) Examples of public order provisions that would justify the annulment of an arbitral award include jus cogens rules which have been enacted in order to protect the public interest or compose the state, cultural, social or economic foundations of the domestic legal order (in a notion similar to Article 33 of the Civil Code).(3)
It follows that violations of jus cogens rules which have been enacted to protect private interests rest outside substantive judicial control. Further, public order will not be considered offended – and thus the award cannot be annulled – when such award has been wrongly interpreted or has deficient reasonings, unless the execution of such award would create a condition contrary to the fundamental concepts of Greek legal order.
If all jus cogens provisions were to be deemed public order provisions, a situation would arise wherein arbitral awards could be annulled for breach of any jus cogens rule (of which a multitude exist in the Greek legal system). This would ultimately diminish arbitral proceedings to a mere procedural step in an ordinary trial, contrary to the principle of non-revision of the substance of arbitral awards (Plenary Session 14/2015, Supreme Court).
For further information on this topic please contact Dimitri N Cocalis at Cocalis & Partners by telephone (+30 210 361 3661), or email ([email protected].). The Cocalis & Partners website can be accessed at www.cocalispartners.gr.
Endnotes
(2) Article 897(6) of the Code of Civil Procedure states that an "arbitral award can be annulled in whole or in part only by court decision for the following reasons… §6 if it is contrary to rules of public order or bonos mores".
(3) Article 33 of the Civil Code states that an "alien law provision shall not apply if its application is contrary to bonos mores or the public order in general".
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