The Code of Civil Procedure sets out a number of conditions that must be met in order for a foreign arbitral award to be recognised and enforced in Greece. The conditions that applicants must satisfy in this regard are in line with the New York Convention, to which Greece is a signatory. This article provides comprehensive guidance on the recognition and enforcement process's requirements.
Under Article 897 of the Code of Civil Procedure, 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. 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.
The advantages of arbitral proceedings, including speed, may be compromised when an arbitral award is challenged. The recent changes to the Civil Procedure Code aimed at accelerating judicial proceedings have not yet shown considerable progress. In any case, the Greek courts are reluctant to set aside arbitral awards or refuse their enforcement, thus indicating that recourse to arbitration for local and international cases is a valuable instrument in alternative dispute resolution.
The Supreme Court recently ruled that the provisions that require arbitrators' details to be included in the award also apply by analogy to tribunal secretaries. Following the judgment, arbitrators should always refer in detail to the particulars of the secretary employed in the arbitration (which is always a best practice) in order to avoid unnecessary complications that may lead to the setting aside of the award.
In international trade, a general reference is sufficient to validly incorporate an arbitration clause contained in another document under Article II(2) of the New York Convention, provided that the clause is common and known to those engaged in a particular trade. The Piraeus Single-Member First-Instance Court recently ruled on a dispute regarding the enforcement of an arbitral award in Greece under the New York Convention.
Third-party funding is uncommon in Greece and, to date, there is no known or recorded precedent of an arbitration funded by a third party. Although Greece has no specific regulation for third-party funding, it does not prohibit third-party funding in arbitration either. As such, those intending to engage in third-party funding are strongly advised to address potential risks (especially issues of financial interests) in carefully drafted funding agreements and other matters in the arbitration agreement itself.
In a recent case, the Supreme Court held that the requirement that specific authorisation be obtained for the person acting as a legal representative for the valid conclusion of an arbitration agreement refers only to a person acting as a proxy or an agent of the legal entity and does not refer to an organ of the legal entity – the very function of which is to represent the entity, such as the board of directors or its substitute.
The Supreme Court recently ruled that a violation of the burden of proof rules did not constitute grounds to set aside an arbitral award. This ruling is consistent with the court's previous stance when deciding whether violations of the res judicata effect could form grounds to set aside an arbitral award. It is also in line with the legislature's clear intention to limit state court control in arbitration in order to enhance its effectiveness and finality.
A recent Supreme Court decision held that an arbitration agreement may validly refer to future disputes; in such cases, the agreement must determine the definite legal relationship out of which such disputes will arise, but it is not necessary to refer to specific disputes. Further, the court held that an arbitration agreement does not extend its scope to disputes arising out of a subsequent agreement between the same parties, even if the subject matter concerns the initial agreement.
Greek courts have consistently held that arbitrators sitting under the rules of the Technical Chamber of Greece do not have jurisdiction to decide non-technical disputes; if they do so, their awards may be set aside for exceeding the jurisdiction that was conferred on them by law. A recent judgment of the Supreme Court qualifies this rule by clarifying the position with respect to incidental matters that are of a legal nature.
When a national legal provision is fixed by means of a stabilisation clause in a concession agreement, it becomes a contractual term of the agreement. Thus, any dispute relating to the application of the provision will fall under the scope of the agreement's arbitration clause. Contrary to case law, the Supreme Administrative Court recently held that the provision need not be directly incorporated into the contract; an express reference is sufficient.
In a recent decision the Supreme Court held that the place of arbitration and the law governing the main contract are important factors for determining whether the parties made a tacit choice as to which law applies to an arbitration agreement. The court also held that, in the absence of a choice of law by the parties, Greek law governs the validity of arbitration agreements relating to international commercial arbitrations held in Greece.
The Supreme Court recently settled a longstanding debate over public policy as it relates to arbitration, holding that the concept of public policy as grounds to set aside domestic arbitral awards is that of international public policy that serves the public interest, not simply individual public policy provisions that serve private interests. The judgment strengthens the pro-arbitration stance of the Greek courts.
The Supreme Court has confirmed that the principle that a valid waiver of setting-aside proceedings before an award is rendered can be implied when it is contained in an agreement ratified by law does not apply to the state, which is subject to additional requirements. The case involved a dispute between the government and a concessionaire over the construction of part of a motorway.
In a recent decision the Athens Court of Appeal held that a valid waiver of setting-aside proceedings before an award is rendered can be implied, provided that it is contained in an agreement that is ratified by law and thus acquires legal force. The case dealt with domestic arbitration law, so it remains to be seen whether such a waiver will be held valid under Greek international arbitration law.
The non-existence or invalidity of an arbitration agreement cannot be raised as grounds to challenge an arbitral award if a court has previously issued a final decision in favour of the agreement's existence or validity in the course of staying court proceedings and referring the dispute to arbitration. The Supreme Court provided clarification on this principle in a recent case arising from a construction contract.
A recent decision confirms that state courts lack jurisdiction to issue a payment order for an unpaid cheque in a dispute between the issuer and the recipient when the parties have agreed to resolve the underlying dispute through arbitration. Although the parties are expected to appeal, the judgment has undeniable value.
A recent judgment has confirmed the pro-arbitration stance of the Greek administrative courts. This becomes even more significant considering that in the area of administrative law, state intervention and the Constitution may limit the parties' contractual freedom. For example, the Supreme Court has held that the Constitution does not prevent the Greek state and a taxpayer from submitting tax disputes to arbitration.
Court proceedings may be stayed in cases where a preliminary matter in the proceedings is also the subject matter of a pending arbitration that does not involve the same parties, in accordance with Article 249 of the Code of Civil Procedure. A recent court decision confirms the application of Article 249 to arbitration through analogy.
The Supreme Court recently confirmed once again a long line of decisions requiring an express reference to an arbitration clause contained in a document for its valid incorporation in a different document. However, the crux of the judgment related not to the requirement for an express reference, but rather to the way in which such express reference is achieved.