International Arbitration

International commercial arbitrations with their seat in Greece are governed by Law 5016/2023. This replaced the previously applicable Law 2735/1999, which was based on the 1985 version of the UNCITRAL Model Law on International Commercial Arbitration. Law 5016/2023 adopted almost all of the 2006 amendments to the UNCITRAL Model Law.

Domestic arbitration is governed by the Civil Procedure Code (Articles 867-903). Key differences between domestic and international arbitration include:

• the validity of an agreement between the parties to waive their right to set aside the award before it is issued, which is not allowed in domestic arbitration; and
• the arbitral tribunal’s power to order interim measures, which is not allowed in domestic arbitration.

International arbitration conducted in Greece is governed by Law 5016/2023. Based on the UNCITRAL Model Law, it reflects current thinking and best practices in arbitration and thus provides a modernised legal framework.

Τhe law of the seat of arbitration has mandatory application. Where Greece has been designated as the seat of arbitration, the parties may not exclude the application of Greek law by agreement. However, the law makes it clear that although the application of Law 5016/2023 cannot be excluded, the parties may, by agreement, regulate the basic issues of arbitration and tailor the arbitration procedure as desired.

Law 5016/2023 was passed on 4 February 2023 and replaced the previously applicable Law 2735/1999. There are no current plans to amend the arbitration legislation.

Greece is a signatory to the New York Convention and ratified the convention through Legislative Decree 4220/1961 under the principle of reciprocity.

Greece:

• is a member of the International Centre for the Settlement of Investment Disputes, having ratified the Washington Convention of 1965 (Stagos, 2005); and
• has signed:
• • the Energy Charter Treaty;
  • the 1969 Vienna Convention on the Law of Treaties; and
  • the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards.

Other than those mentioned elsewhere in question 1, Greece is also a signatory to the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, which entered into force on 1 September 2023.

According to Article 3(4) of Law 5016/2023, a dispute is arbitrable unless the law specifically prohibits this. This is an innovative provision of the new law, as it presumes the arbitrability of all disputes. According to Article 867 of the Code of Civil Procedure, non-arbitrable disputes are limited to:

• disputes where the parties do not have the power to dispose of the subject matter; and
• certain labour law disputes.

The parties are free to choose the seat of arbitration when drafting the arbitration agreement. However, if the parties agree that the seat of arbitration is Greece, they cannot exclude by agreement the applicable legal framework governing arbitration in Greece. Therefore, the delocalisation theory does not apply.

According to Article 10 of Law 5016/2023, an arbitration agreement:

• may take the form of:
• • an arbitration clause in a certain contract; or
  • a separate agreement; and
• must be reflected in a document whose contents the parties have expressly or implicitly agreed upon, the form of which may include:
• • an exchange of letters, telegrams, telexes or other means of telecommunication recording the agreement; or
  • an electronic record that allows for the subsequent verification of its origin by a specific publisher and access to the content of the agreement.

A reference made in a contract to an arbitration clause contained in another document constitutes an arbitration agreement if it makes that clause part of the contract. If there is no document as described above, the unconditional participation of the parties in the arbitration proceedings constitutes proof of the conclusion of an arbitration agreement. According to Article 11 of Law 5016/2023, an arbitration agreement will be valid when it is considered as such under:

• the law that the parties have agreed will govern it;
• the law of the seat of arbitration; or
• if the parties have not expressly agreed on the law, the law governing the substantive agreement of the parties.

Bankruptcy or insolvency proceedings have no effect on the arbitration agreement unless otherwise provided by law. The broad wording of Article 11 ensures the validity of the arbitration clause, which is considered valid in any of the circumstances listed in Article 11, reflecting the in favorem validitatis principle.

According to Article 23 of Law 5016/2023, the arbitral tribunal will rule on its jurisdiction and the existence or validity of the arbitration agreement. To this end, an arbitration clause contained in a contract will be considered an independent agreement with respect to the other terms of the contract. The invalidity of the contract will not automatically render the arbitration clause invalid. Further, according to Article 12 of Law 5016/2023, the court before which an action is brought in a dispute which is the subject of an arbitration agreement will refer the dispute to arbitration at the request of one of the parties if such a request is made at the first hearing, unless the court finds that the arbitration agreement is invalid, ineffective or unenforceable. Lis pendens will not prevent the commencement or continuation of arbitration or the rendering of an arbitral award. The combination of Articles 12 and 23 reflects the doctrine of competence-competence and the doctrine of separability of the arbitral agreement, maximising the effectiveness of arbitration agreements and minimising the impact of any delay tactics.

According to Article 28 of Law 5016/2023, the parties can freely determine the place of arbitration. In the absence of agreement between the parties, the place of arbitration will be determined by the arbitral tribunal, considering the circumstances of the case, including the convenience of the parties. Unless otherwise agreed by the parties, the arbitral tribunal may meet at any place and in any manner it considers appropriate in order to:

• confer;
• examine witnesses or experts;
• hear the parties;
• inspect goods or other objects; and/or
• take cognisance of documents.

Further, according to Article 30 of Law 5016/2023, the parties can freely determine the language or languages to be used in the arbitration. In the absence of agreement, the language or languages will be determined by the arbitral tribunal. Unless the agreement of the parties or the determination by the arbitral tribunal provides otherwise, the choice of language will apply to:

• all documents of the parties;
• the hearing; and
• the decisions and notifications of the arbitral tribunal.

The arbitral tribunal may order that all documents in a foreign language be accompanied by a translation into the language or languages agreed upon by the parties or determined by the tribunal.

According to Articles 23(2) and (3) of Law 5016/2023, once the time limit for answering the request has expired, no objection on the grounds of lack of jurisdiction of the arbitral tribunal may be raised. Such a plea will not be precluded by the fact that the party raising it has appointed an arbitrator or participated in the appointment of an arbitrator.

An objection that the arbitral tribunal has exceeded the limits of its authority must be raised as soon as the relevant issue arises in the arbitral proceedings. In any event, the arbitral tribunal may accept as admissible an objection raised later on if it considers that the late submission is justified.

The arbitral tribunal will rule on these objections by way of either:

• an incidental decision; or
• a decision on the substance of the dispute.

If the arbitral tribunal issues an incidental decision that it has jurisdiction, the arbitral proceedings will continue and a decision on the merits will be rendered, of which the incidental award will be considered an integral part.

No answer submitted for this question.

The parties may appeal to the state courts of the place of arbitration to resolve the dispute or to declare the arbitration clause invalid. However, if the other party suggests by objection that an arbitration clause exists in relation to the dispute, the state court must refer the dispute to arbitration, subject to the exceptions set out in Article 12 of Law 5016/2023. In any case, an appeal brought before the state courts by one party does not prevent the other party from appealing before the arbitral tribunal and does not obstruct the process.

Τhe law imposes no restrictions on who can be party to an arbitration agreement. Anyone with legal capacity may enter into an arbitration agreement.

The law does not expressly impose an obligation on the parties. The parties may be bound by the arbitration agreement for example as to confidentiality. Obligations may be imposed on the parties when formulating the arbitration proceedings for example advance payment of part of the costs of the arbitration. As a general principle, the parties ought to conduct the arbitration in good faith.

Unlike its predecessor, Law 5016/2023 includes provisions on multilateral arbitration and specifically on the appointment of arbitrators. Unless otherwise agreed by the parties, if the arbitral tribunal consists of more than one arbitrator and the arbitration involves more than one party as either claimant or respondent, those parties will appoint an arbitrator jointly. If most of the parties are unable to reach a consensus within the period specified in the arbitration agreement or, in the absence thereof, within 30 days, the appointment will be made by the state court under Article 9(1).

Priority is given to the agreement between the parties, which are free to choose the substantive law that will apply. They also have the possibility to agree that the tribunal will decide ex aequo et bono or as amiable compositeur. In the absence of agreement between the parties, the tribunal will decide on the applicable law, considering the terms of the contract and commercial practice. It is expressly stated in Law 5016/2023 that the choice of law or the legal system of a state does not include the conflict-of-law rules of that state, unless the parties have expressly stipulated otherwise.

See question 6.1.

According to Articles 24(2) and (3) of Law 5016/2023 the arbitral tribunal has the power to accept the participation of a person bound by the arbitration agreement in the arbitration proceedings as either:

• a plaintiff or defendant; or
• an additional intervener with a legal interest in the resolution of the original dispute.

In addition, at the request of a party, the arbitral tribunal has the power to consolidate before it and jointly hear any other dispute that is pending between the parties:

• before the same arbitrators; or
• by express agreement of the parties, before another arbitral tribunal.

Article 24 is an innovative provision not included in the UNCITRAL Model Law, which regulates participation in third-party arbitrations and the consolidation of arbitrations.

See question 7.1.

The foundation of arbitration is based on the consent of the parties to submit the resolution of their dispute to the arbitral tribunal. In principle, therefore, an arbitration agreement is binding only on the parties that have signed it. Theories have been put forward, and have been accepted in arbitral awards, under which an arbitration agreement also extends to third parties which have not signed it. The application of these theories, however, is considered ad hoc due to the complexity of the circumstances. To mention a few, amongst those theories are the group of companies and the alter ego doctrine.

The procedure for appointing the arbitral tribunal will depend on whether there is a specific agreement between the parties on this point. If the parties have agreed on the procedure, it will be followed unless:

• a party fails to act in accordance with that procedure;
• the parties or both arbitrators fail to reach agreement on the procedure for appointing the third arbitrator; or
• a third party fails to perform the duties assigned to him or her under that procedure.

In the above cases, either party may request the state court to make the necessary appointment, unless the agreement on the procedure for the appointment of an arbitrator or arbitrators provides otherwise. Ιn the absence of an agreement between the parties, where there are three arbitrators, each party will appoint one arbitrator and the two arbitrators will then appoint the third arbitrator. If a party fails to appoint an arbitrator within 30 days of receipt of a request from the other party to do so, or if the two arbitrators fail to agree on the appointment of the third arbitrator within 30 days of their appointment, the appointment will be made by the state court at the request of a party. Where the arbitral tribunal consists of one arbitrator and the parties fail to agree on his or her appointment, the appointment will be made by the state court.

Article 15(1) of Law 5016/2023 expressly states that nationality is not an obstacle to the appointment of an arbitrator, unless the parties have agreed to this. In the absence of any specific reference in the law to the profession or qualifications of arbitrators, it follows that the parties may freely agree on these qualities if they so wish. They may also agree without restriction on the number of arbitrators, as the law mainly foresees the intervention of the court in the appointment of arbitrators in the absence of agreement between the parties, as an ancillary role.

The appointment of an arbitrator may be challenged only if:

• there are facts or circumstances that raise reasonable doubts as to his or her impartiality or independence; or
• he or she lacks the qualifications agreed upon by the parties.

The decision on a challenge is made without the involvement of the challenged arbitrator. However, Law 5106/2023 sets a timeframe of 15 days, starting from the point at which the party becomes aware of the constitution of the arbitral tribunal or of the fact that constitutes the grounds for challenge. It further provides that if an arbitrator is legally or actually unable to fulfil his or her duties, or for other reasons fails to act within a reasonable time, his or her appointment will cease either:

• by his or her resignation;
• by agreement of the parties; or
• at the request of a party before the state court as provided for in Article 9 of Law 5016/2023.

Α replacement arbitrator is appointed in accordance with the rules applicable to the appointment of the arbitrator being replaced. Unless otherwise agreed by the parties, the arbitral tribunal, with its new composition, will decide whether the proceedings should continue from the point at which they were interrupted.

The main duty of arbitrators, which is also reflected in the legislation, is the obligation to be independent, impartial and neutral. A further obligation of arbitrators – albeit one which is not expressly reflected in the law – is to issue an award which will not be annulled.

(a) Procedure, including evidence?

In the absence of agreement between the parties, the arbitral tribunal will:

• determine the most suitable procedure; and
• freely decide on the admissibility, importance and weight of the evidence.

Unless otherwise agreed by the parties, the arbitral tribunal will decide whether a hearing should be held or the arbitration should be conducted with documents and other evidence. If the parties have not excluded the possibility of a hearing, the arbitral tribunal must, where requested by a party, hold a hearing at such time as it deems appropriate.

(b) Interim relief?

See question 8.9.

(c) Parties which do not comply with its orders?

No specific penalties are provided for in the law. However, even if a party does not comply with court orders, the process will not be hindered and will proceed normally. Interim measures have substantive effect from their issuance and the parties must comply accordingly.

(d) Issuing partial final awards?

Unless the parties have agreed to structure the procedure otherwise, this specific issue is not expressly addressed. With regard to the question of its jurisdiction, the arbitral tribunal may issue an interlocutory decision which, if the decision is positive, can be challenged together with the final arbitral award.

(e) The remedies it can grant in a final award?

See question 12.3.

(f) Interest?

See question 12.3.

Unless otherwise agreed by the parties:

• if the plaintiff does not commence arbitration within the specified timeframe without good reason, the tribunal will declare the arbitration closed; and
• if the defendant fails to respond without good reason, the procedure will continue, although the defendant’s failure to respond will not constitute an admission of the plaintiff’s allegations.

The arbitral tribunal may also continue the proceedings and issue an award based on the existing evidence if a party fails to attend a hearing or to produce evidence without good reason.

In the performance of their duties, arbitrators will be liable only for intentional misconduct and gross negligence.

See question 4.3.

Under Law 5016/2023, the intervention of the state courts appears limited and, in some cases, subsidiary. However, in certain cases – mainly relating to the constitution and composition of the arbitral tribunal – the state court has recognised powers, especially where there is no agreement between the parties on the matter. In addition, under Article 13 of Law 5016/2023, the state court may order interim measures regardless of whether the arbitration is seated in its jurisdiction or elsewhere. The state court will also refer the dispute to arbitration even if the seat of arbitration is not Greece.

The parties cannot completely exclude the power of the state court in the cases provided for; however, by regulating the most important issues by agreement – such as the constitution of the arbitral tribunal – they can significantly limit the involvement of the state courts.

According to Article 41(4) of Law 5016/2023, unless otherwise agreed by the parties, the arbitral tribunal – taking into account the circumstances of the case, the arbitral procedure and in particular the outcome of the arbitration – can apportion to the parties, in its decision, the costs of the arbitration, including the reasonable costs of the parties incurred in supporting the arbitration. If the costs have not been determined by the end of the arbitration, the determination and apportionment may be made in a separate arbitral award. As a rule, the costs are borne by the losing party, with exceptions if, for example, incidents for which the other party was responsible took place that extended the proceedings and thus increased the costs.

From the wording “unless otherwise agreed by the parties”, it follows that the parties are not subject to restrictions on what they can agree in terms of costs in an arbitration.

Third-party funding is not regulated in any law that applies to international arbitration. Article 361 of the Civil Code establishes the principle of freedom of contract; therefore, a third-party funding agreement may be considered possible and will be interpreted according to the applicable law.

Article 40 of Law 5016/2023 identifies the basic requirements that an arbitration award must meet, which include the following:

• It must be executed in writing;
• It must be signed by the arbitrator or arbitrators;
• It must be justified, unless the parties have agreed that this is not required; and
• It must state the time of its issuance and the place of arbitration.

The law does not specify a deadline by which the arbitrators must issue an award.

According to Article 44(2) of Law 5016/2023, an arbitral award becomes res judicata and enforceable upon issuance. If a party does not voluntarily comply with the award, it may be enforced according to the procedure set out in the Civil Procedure Code. The filing of an annulment action does not suspend execution of the arbitration award; this can be suspended only for the limited reasons set out in the Code of Civil Procedure.

The grounds for annulment set out in Article 41 of Law 5016/2023 reflect fundamental procedural principles, such as:

• the right to be heard;
• the right to a fair trial; and
• the right to correct errors concerning:
• • the constitution of the arbitral tribunal; or
  • the validity and limits of the arbitration agreement.

In particular, an arbitral award may be set aside if:

• a party to the arbitration agreement lacked capacity under the applicable law to enter into the agreement;
• the arbitration agreement is not valid; or
• the arbitral tribunal found that it lacked jurisdiction despite the existence of a valid arbitration agreement.

The arbitral award may also be set aside if:

• a party was not properly notified of the appointment of an arbitrator or of the arbitration proceedings, or was otherwise prevented from presenting its case; or
• the arbitral award:
• • concerns a dispute that is not covered by the arbitration agreement; or
  • contains provisions that go beyond the scope of the agreement or the claims submitted to arbitration.

The law also sets out grounds for annulment which the court hearing the application may examine sua sponte. Initially, these related to public policy and the arbitrability of the dispute.

The new law introduced also two new provisions to set aside an award:

• One provides for the annulment of an arbitral award in case of a final and irrevocable judgment by a competent criminal court for:
• • fraud;
  • false testimony;
  • bribery of an arbitrator; or
  • breach of duty.
• And the other in order to prevent dilatory tactics, the other provides that parties cannot rely on their own acts or omissions to annul an arbitral award, which means that a party cannot rely on a ground for annulment that it caused itself.

The parties have three months from formal service of the arbitral award to challenge the award. If correction, interpretation or finalisation of the award is pending, this time limit starts to run from formal service of the supplementary award. The legislature specified formal service of the award to ensure legal certainty in this regard.

By their written, express and specific agreement, the parties may at any time waive the right to seek annulment of the arbitral award. However, even where such an agreement exists, the parties are not left unprotected: during execution of the arbitral award, they can cite any of the grounds for annulment of the award by exercising the prescribed remedies before the state courts of the place of enforcement.

With regard to confidentiality, the legislature deliberately left it to the parties to determine, by agreement, whether this should apply to either the arbitration process or the content of the arbitral award. This is also reflected in the explanatory statement of the law. In the absence of a specific agreement of the parties, as provided for in Article 27(3) of Law 5016/2023, the arbitral tribunal will decide on this matter taking into account the interests of the parties.

See question 15.1.