Recent changes in International Commercial Arbitration under the Greek Law 5016/2023
Introduction
The recent Law 5016/2023 on International Commercial Arbitration in Greece is a reality, effective from 1st of May 2023. It is a law with a civil procedure law approach. This law attempts to modernise the regulations for international commercial arbitration and to harmonise the provisions of national law with the Model Law of the United Nations Commission on International Trade Law (UNCITRAL), as updated in 2006. Bylaw 5016/2023 repeals Law 2735/1999, while it is worth mentioning that for reasons of legal certainty the provisions on internal arbitration of the Greek CCC and international arbitration were not unified.
Arbitration and, in particular, international arbitration constitutes a product of the autonomy of the will of the parties. That is, the parties are free to decide to submit their disputes to arbitration and to choose the law applicable to the resolution of their dispute, which is one of the objectives established on the basis of the recital. An example was taken from the US, Swiss and French franchises, due to the fact that they have legislation friendly to arbitration and highlighting the institution as an equal dispute resolution mechanism with the national state courts, which still have the ultimate control over decisions.
Innovations
Among other innovations in relation to the previous Law 2735/1999 are the following:
(a) the presumption of arbitrability of each dispute, unless the law excludes a certain dispute or class of disputes from being submitted to arbitration,
(b) the authority of the arbitral tribunal to order such interim measures as it considers necessary relating to the subject matter of the dispute or to issue an interim order,
(c) the recognition of the arbitral tribunal to compel the parties to produce documents or other evidence that are in their possession and are likely to have a material effect on the outcome of the arbitration.
Of the above innovations, the crucial Greek innovation of interim measures will be analysed here and some remarks will be made on the action for annulment of an arbitral award.
The provisions for injunctions
The UNCITRAL regulations adopted almost all the amendments to the new Law 5016, except for those concerning injunctions (Art. 25), of which the most critical are listed below:
(a) The arbitral tribunal may order at the request of a party the taking of interim measures relating to the subject matter of the dispute or the arbitral proceedings. But are the parties' requests binding on the court? The answer is negative. The court may order whatever it deems necessary and in compliance with the principle of proportionality.
(b) But does only the arbitral tribunal have jurisdiction to hear the appeal of either party? The answer is negative. The state court may also order injunctive relief (Art. 13). In any event, an emergency arbitrator may also perform functions in Greece.
(c) This provision may be implemented by any appropriate means, such as by email (which is the most common), by telephone order, by written order or even by arbitration award.
(d) In addition to injunctions, an interim order may be issued for urgent cases, which may also be issued ex parte. This may occur in cases where it is suspected that summoning the defendant would jeopardise the effectiveness of the interim measure, in which case the defence is heard 24 hours after the issuance of the interim order, and in order to respect the principle of equality of arms.
The action for annulment
As regards the action for annulment of an arbitral award (Art. 43), some important observations can be summarised as follows:
(a) Grounds for annulment of an arbitral award may also be raised as grounds for an appeal against the enforcement of an arbitral award before the state court. That court shall be the Single-Member Court of First Instance of the place where the arbitration has been fixed. Regarding Greece, it is the most common to be the Courts of Athens.
(b) A provision was introduced as an arrangement to serve the economy of litigation which provides that when an arbitral award is set aside, it is referred back to the arbitral tribunal to re-litigate the dispute. Without this provision, the parties would have to refer their dispute back to arbitration to be heard from the outset. This would be decided in casu in each case.
(c) At the level of Comparative Law, in English law (Anglo-Saxon law institutions) it should be mentioned that there is no res judicata. When an action for annulment is brought, it may, in addition to the legal issue raised in the arbitration dispute, also relate to the substantive issue. In contrast, in Greece, only the legal aspect is challenged in an action for annulment.
Conclusions
With regard to injunctions, it can be summarised that under the new Law 5016/2023 the least burdensome injunction for the defendant can be ordered, without the court being bound by what the applicant has requested. The institution of injunctions is useful, as it happens that after the issuance of an injunction, the parties also proceed to settle their dispute.
As regards the action for annulment, the regulations introduced were aimed at the economy of the trial and the clarification of issues that were not covered by the previous Law 2735/1999.
The new Law 5016/2023 with its significant innovations aspires to become an attractive seat of international arbitration compared with other EU and OECD states. On the other hand, even the defending side with the legal amenities and respect for equality of arms offered by Law 5016/2023 can effectively exercise their rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.