New Greek Law on International Commercial Arbitration

INTRODUCTION

In February 2023, the Greek parliament voted and promulgated Law No. 5016/2023 on international commercial arbitration (Law 5016/2023). This law repealed and replaced Law No. 2735/1999 on international commercial arbitration (Law 2735/1999), which used to be the previous Greek lex arbitri. The new law is a major breakthrough for international arbitration as it has modernized the previous regime, taking into account the 2006 amendments to the UNCITRAL model law (Model Law), the international developments and the contemporary trends in theory and practice of international arbitration. In fact, unlike Law 2735/1999, Law 5016/2023 has incorporated most if not all the provisions of the Model Law.

At the outset, it should be noted that Law 5016/2023 exclusively concerns international arbitration,¹ whose applicable law is Greek. Domestic arbitration is governed by Chapter 7 of the Greek Code of Civil Procedure.

 

BASIC PROVISIONS OF LAW 5016/2023²

Arbitrability of disputes

Article 3.4 of Law 5016/2023 broadens the scope of arbitrability by stating that all disputes are arbitrable unless Greek legislation expressly provides otherwise. Therefore, Law 5016/2023 introduces an important (rebuttable) presumption in favour of arbitrability for all disputes and provides additional clarity compared to the previous regime.

Principle of good faith

The new provisions of article 5 incorporate into Greek law the respective provisions of the Model Law. Article 5.1 underlines the importance of the international origin of the Law, the need for its homogenous interpretation and the principle of good faith. Importantly, the principle of good faith does not apply only as a principle of interpretation but also as a duty of all parties to the arbitration.

Arbitration agreement

Two important novelties are introduced with respect to arbitration agreements. First, while Law 5016/2023 maintains the requirement that an arbitration agreement needs to be in writing, this term has been construed broadly and in accordance with modern trends to include electronic exchanges, which are expressly equated to documents in article 10.

Secondly, and importantly, article 11 of Law 5016/2023 introduces a conflict-of-laws rule to determine the applicable law of the arbitration agreement and provides that the law governing the arbitration agreement is either the law chosen by the parties, the law of the contract, or the law of the seat of arbitration. This provision constitutes a novelty even compared to well-recognized arbitration-friendly jurisdictions, whose statutes lack similar stipulations and the relevant rules have been developed in caselaw.³

Arbitrator appointments in multi-party arbitrators

The new article 16 regulates the appointment of the members of a multi-member arbitral tribunal in the context of a multi-party arbitration. According to this article, in multi-party arbitrations, each side can appoint jointly one arbitrator. In case the multiple parties of one side cannot agree on one arbitrator, the arbitrator will be appointed by a single-member court of first instance (the Court). This Court can also appoint the entire tribunal upon a party’s request. The provisions of article 16 are subject to the parties’ contrary agreement and aim at ensuring the progress of the arbitration proceedings in cases where more than one claimant or respondent do not agree on the joint appointment of an arbitrator, each one for its side.

The Court is also authorized, absent a contrary agreement by the parties, to appoint the entire tribunal if the latter has not been constituted within 90 days from the submission of the case to arbitration.

The procedure in multi-party arbitrations

New article 24, which does not reflect the similar provisions in the UNCITRAL Model law, regulates the procedure of multi-party arbitrations. More specifically, article 24 allows the joinder of additional parties to the arbitration, provided the arbitration agreement applies to them. An additional party can be joined in the arbitration either when the respondent joins it in the response to the request for arbitration, or by a separate motion. Following acceptance of such an expansion, the new parties have the same rights and obligations as the initial parties to the arbitration. Any new party to the arbitration accepts the already constituted arbitral tribunal.

Further, article 24(2) allows the consolidation of arbitrations that are between the same parties and before the same tribunal - or before a different tribunal, provided the parties agree to that consolidation expressly. Even though article 24(2) does not set out any other requirements for the consolidation, article 5 of Law 5016/2023 dictates that the order of consolidation has to promote efficiency, be in good faith and in line with uniform rules of arbitration law. The arbitral tribunal has the power to determine all cases covered by article 24, following consideration of the factual and legal background of each case and after all the parties concerned (or any other arbitral tribunal involved) have taken the opportunity to express their position.

Interim measures ordered by the tribunal

Article 25 amends the previous status quo with respect to interim measures and aligns Greek law with the Model Law by correcting an important discrepancy. More specifically, under Law 2735/1999, interim measures ordered by the tribunal were not binding in themselves but had to be enforced by the local courts. This is not the case under Law 5016/2023, which provides that all interim measures are automatically enforceable between the parties. However, the recognition or enforcement of the interim measures can be refused by the Court on grounds of public policy, and in cases where the national courts have already been seized, to order a similar interim measure.

Further, article 25 provides for the issuance of preliminary orders, which may take place in exceptionally urgent circumstances. These orders may be issued on an ex parte basis, in which case the party against which the order has been issued will have the right to be heard within 24 hours after the issuance of the preliminary order. Subject to an order of the tribunal, a preliminary order ceases to be valid automatically within 20 days from the date it entered into force.

Confidentiality/Administrative secretary

Article 27 contains two new provisions. Paragraph 3 provides that the issue of confidentiality (with respect to the existence of the arbitration, the arbitration proceedings and the arbitral award) is subject to the parties’ or the arbitrators’ autonomy. Interestingly, the provision does not introduce any presumption in favour or against confidentiality but leaves it entirely up to the parties.

Paragraph 4 of article 27 regulates the conduct of administrative secretaries to the arbitral tribunal, clarifying their obligations and liability. According to this provision, the secretary’s duties, remuneration and any other relevant issues are regulated by the act appointing the secretary.

Document production

Article 35, which does not reflect any provision in the Model Law, but follows international trends and practices, allows the tribunal to order the production of documents and/or other evidence in the parties’ possession or control that are considered prima facie significant to the outcome of the arbitration. That power can be exercised pursuant to a party’s request or the tribunal’s order and only after both parties have been heard.

The above provisions deviate from Greek court practice, which (in line with most civil law jurisdictions) is much more strict with respect to document production. By way of example, a document request under the Greek Code of Civil Procedure would normally require a specific and precise reference to the content of the requested document and an elaborate description of its importance. The wording of article 35 of Law 5016/2023, on the other hand, leaves room for the parties to adopt modern document production practices.

Conclusions

Law 5016/2023 is a step in the right direction towards the promotion of international arbitration in the Greek legal order. Indeed, it incorporates most - if not all - of the provisions of the Model Law, it further encourages party autonomy and it assigns numerous additional powers to the tribunal, such as the power to order binding interim measures. It is expected that this legislation will contribute to the promotion of international arbitration in Greece and the establishment of Greece as an arbitral seat.

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¹The definition of “international arbitration” is set out in article 3 of Law 5016/2023, which repeats the provision of Law 2735/1999. An arbitration is considered international when, at the time of the conclusion the arbitration agreement, the parties have their establishment in different countries. An arbitration is also considered international when (i) the place of arbitration is not in the same place as the place where the parties are established; (ii) the place of execution of a substantial part of the contract or a place that is substantially connected to the subject matter of the dispute is not the same as the place of establishment of the parties; or (iii) the parties have agreed to the application of Law 5016/2023.
²This alert memo does not aim to set out every single provision of Law 5016/2023, but simply outline the key novelties of the legislation.
³For instance see Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb” & Ors [2020] UKSC 38.