Update on commercial arbitration

Comprehensive guidance for recognition and enforcement of foreign arbitral awards

20/05/2019 16:52

Dimitri N Cocalis

Introduction

Articles 906, 905(1) and 903 of the Code of Civil Procedure provide that, without prejudice to applicable international conventions, the following conditions must apply for a foreign arbitral award to be executable in Greece:

  • the arbitration agreement on which the award is based must be valid in accordance with the law applicable to it;
  • the object of the arbitral award must be arbitrable in accordance with Greek law;
  • the award is not subject to appeal or recourse and no proceedings disputing its validity are pending;
  • the defeated party was not deprived of its right of defence;
  • the award is not contrary to a Greek court decision issued for the same case and which constitutes res judicata among the same parties; and
  • the award is not contrary to public interest or good morals.

The courts of the foreign state in which a foreign arbitral award was issued have jurisdiction over any objection or dispute concerning its validity and the Greek courts have no jurisdiction to adjudicate an action to nullify a foreign arbitral award for the reasons set out in Articles 70, 897 and 901 of the Code of Civil Procedure. However, the Greek courts may refuse to pronounce a foreign award executable if Article 903's conditions regarding res judicata are not met(1) (ie, the foreign award must not be subject to any recourse (where permitted) and no proceeding in regard to its validity must be pending).(2)

New York Convention

The Greek approach is in line with Article 5(1)(e) of the New York Convention, which provides that foreign arbitral awards must:

  • be binding on the parties; and
  • not have been set aside or suspended by a competent authority of the country in which, or under the law of which, the award was made.(3)

Article 1 of Legislative Decree 4220/1961 ratified Greece's accession to the New York Convention on 14 October 1962. The convention holds the power of a law and supersedes Articles 903, 905 and 906 of the Code of Civil Procedure in accordance with Article 28 of the Constitution.(4)

Article 3 of the New York Convention provides that:

Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.

Accordingly, Article 3 covers:

  • the formal procedural rules that regulate the recognition and enforcement of a foreign arbitral award; and
  • the resolution of procedural matters under the procedural rules of the territory in which the award is invoked.

The following Code of Civil Procedure articles fall within the scope of these rules in a Greek context:

  • Article 903 with regard to the absence of requirements of adherence to any particular proceedings;
  • Articles 905 and 906 to the extent that they regulate proceedings and the competent court for the enforcement of a foreign arbitral award in Greece; and
  • Articles 68, 73, 118 and 216, which regulate the elements which must be included in an application to recognise and render executable a foreign arbitral award, including the identity and active and passive legalisation of the parties.(5)

Article 4 of the New York Convention provides that for the recognition and enforcement of an award, the applicant party must supply the courts with:

  • an authenticated original award or certified copy thereof; and
  • the original agreement referred to in Article 2 or a certified copy thereof.

If an award or agreement is not executed in an official language of the country in which the application for its recognition and enforcement is made, the applicant party must commission a translation of said documents into the appropriate language. The translation must be certified by an official translator or diplomatic or consular agent.

Article 5 of the convention provides that the recognition and enforcement of an award may be refused, at the request of the party against whom it is invoked, only if that party provides the competent authority with proof that:

  • the parties to the agreement referred to in Article 2 of the convention were, under the law applicable to them, incapacitated;
  • the agreement was not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country in which the award was made;
  • the party against whom the award was invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present its case;
  • the award deals with:the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country in which the arbitration took place; or
    • a dispute not contemplated by or not falling within the terms of the submission to arbitration; or

    • a difference not contemplated by or not falling within the terms of submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, the part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced;

  • the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country in which the arbitration took place; or

  • the award has not yet become binding on the parties, has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

The recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where they are sought finds that:

  • the dispute cannot be settled by arbitration under the law of that country; or
  • the recognition or enforcement of the award would be contrary to the public policy of that country.

Court judgments on arbitral awards issued in a signatory state of the New York Convention are limited to the applicability of the conditions of Article 4 thereof. Given that the courts cannot examine ex officio whether one of Article 5's negative conditions applies, the party against which a foreign arbitral award is invoked must argue and prove such application for the application to be dismissed. However, the courts can examine ex officio whether:

  • the object of a dispute is arbitrable in accordance with the applicable law; or
  • the enforcement of the award is deemed contrary to the public interest of the country in which the recognition and enforcement is sought.(6)

The fulfilment of Article 4's conditions (ie, providing the court with the arbitral award and agreement) establishes a presumption of the recognition and enforcement of a foreign arbitral award (ie, it is sufficient for the party pursuing the recognition and enforcement of a foreign award to prove the existence of an arbitral award and agreement in accordance with Articles 1 and 2 of the convention).

Defendants can challenge applications for the recognition and enforcement of arbitral awards if they can prove the reasons set out in Article 5(1) of the convention. Such applications will be rejected ex officio by the courts in the event that the reasons set out in Article 5(2) exist. Moreover, the invalidity of an arbitration agreement under Article 5(1)(a) of the convention is not among the prerequisites set out in Article 2(1) with regard to whether the object of a dispute is arbitrable.(7)

Enforcing foreign awards

The legal correctness of foreign awards is not a condition for their enforcement. Rather, the question of whether the applicable substantive law was applied – in accordance with the Private International Law – or by contract is of particular importance because the Greek courts cannot examine the substance of foreign awards. In the event that a foreign award is wrong in substance, the defeated party may exercise the appeals or recourses foreseen by the (applicable) foreign law.(8)

The validity of an arbitration agreement will be judged in accordance with the law applicable to its form and substance, in accordance with Articles 11 and 25 of the Civil Code, as there is no specific provision in the Private International Law regulating the law applicable to an arbitration agreement, while arbitration agreements are excluded from the provisions of the Rome Convention 1980 on the law applicable to contractual obligations (Article 1(2)(d) of the New York Convention), which was ratified by Law 1792/1988, and Article 1(3)(d) EU Brussels Regulation (44/2001).

The law applicable to arbitration and the law applicable to the substance of disputes coincide, especially with regard to contracts; therefore, the law applicable to arbitration is primarily the law to which the parties have subjected themselves. Moreover, in accordance with Articles 905(1) and 906 of the Code of Civil Procedure, the single member first-instance court conducts the recognition and enforcement process in accordance with Articles 740 to 781 of the Code of Civil Procedure (ie, in accordance with the ex parte proceedings).

For further information on this topic please contact Dimitri N Cocalis at Cocalis & Partners by telephone (+30 210 361 3661), or email (cocalis@cocalispartners.gr.). The Cocalis & Partners website can be accessed at www.cocalispartners.gr.

Endnotes

(1) ΟλΑΠ 11/2009 ΔΕΕ 2010, p1213, ΟλΑΠ 899/1985 ΝοΒ 1985 p1399.

(2) Ch Apallagaki, interp 906 CCP.

(3) ΕφΑθ 967/1995 ΕλλΔνη 1996, p1399.

(4) ΟλΑΠ 8/1997.

(5) That is, the capacity allowing them to be parties in the proceedings.

(6) ΑΠ 1066/2007, Α' δημοσίευση ΝΟΜΟΣ, ΑΠ 460/1990, ΕλΔνη 1991, σ.532, ΕφΑΘ 29/2010, ΕΦΑΔ 2010, σ.725, ΕφΠειρ 738/2010, ΕΝΑΥΤΔ 2010, σ.438, Εφθεσσ 451/2000, Αρμ 2000, σ.829.

(7) Εφθεσσαλ 871/1998, ΑρχΝ 1999, σ.44.

(8) ΑΠ 1066/2007, ο.π., ΕφΛαμ 10/2013, ΕΦΑΔ 2014, σ.320, ΕφΑΘ 29/2010, ο.π., ΕφΠειρ 738/2010, ο.π., ΜΠρΤρικαλ 43/2013, ΔΕΕ 2013, σ.363.

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