Arbitration & ADR

Arbitration under the Greek Code of Civil Procedure (CCP)

Title 7, articles 867 et. seq. of CCP regulate domestic arbitration. International commercial arbitration conducted in Greece is regulated by Law 2735/1999. The distinction between the two is to be drawn according to the criteria set out in article 1 par. 2 of Law 2735/1999 which adopts the UNCITRAL’s Model Law, hence incorporates elements pertaining both to the parties, as well as to the subject matter of the dispute and also to the parties’ agreement. Arbitrabillity presupposes that the parties are allowed to dispose of the subject matter of the dispute. Certain categories of disputes, in which said prerequisite is met, are nevertheless excluded from arbitration on the basis of other concerns, pertaining mainly to public policy and to the protection of a presumably week party. Employment disputes fall within the scope of such exclusion.

The principles of party autonomy, separability and competence are either explicitly or implicitly adopted by the provisions of CCP and are generally applicable. CCP provides for both ad hoc as well as institutional arbitration. In the former, parties have broad authority to shape the arbitral proceedings in the way they see fit as long as certain fundamental principles of fairness are satisfied, including equal treatment in procedural terms and right to be heard. Usually parties to a domestic arbitration tend to agree on the application of set or rules already available in CCP, controlling types of State Court proceedings, with which both arbitrators and parties’ lawyers are familiar. Hence, in the vast majority of cases the parties to a domestic arbitration agree to the application of the flexible rules of CCP controlling interim measure proceedings.

Albeit not a new concept in the Greek dispute resolution system, mediation in its current, modern form has been introduced into the Greek legal order as a tool for resolution of civil and commercial matters following Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, concerning mediation in cross-border disputes.

In order to implement said Directive, the legislature enacted Law 3898/2010, which further served as a means to introduce mediation as a dispute resolution tool for both domestic and cross-border civil and commercial matters. The provisions of Law 3898/2010 where soon to be complemented by a series of other provisions, concerning among other issues: the establishment of mediator training and certification standards and procedures; a national code of conduct for mediators; judicial mediation; the possibility to file a motion for mediation during lis pendens and the possibility of the judge to suggest mediation; and the obligation of lawyers to name mediation as an option for their clients.

Thus, the legislation in force provides a solid framework for mediation in civil and commercial matters, whereby any private legal dispute concerning civil and commercial matters may be referred to and resolved by mediation, provided that the parties have the power to dispose freely of the subject of the dispute and agree to submit it to a mediator of their choice. The mediator is a trained professional certified by the Greek Ministry of Justice, Transparency and Human Rights, included in the national mediation register, and fully qualified to conduct a mediation which, in principle, is based on the facilitative approach.

What are the Advantages and Disadvantages of Arbitration?

Arbitration is a widespread type of alternative dispute resolution to the civil litigation process. The key difference between litigation and arbitration is that the parties agree to have their dispute decided by an arbitrator or a panel of arbitrators giving up the right to litigate in court.

The most significant advantages and disadvantages of arbitration can be encapsulated, as follows:

Advantages

• ƒƒ Freedom to choose a Neutral and Expert Arbitrator;
• ƒƒ Freedom to select the place, language and governing law of the Arbitration;
• ƒƒ Faster and less costly than Court Litigation;
• ƒƒ Arbitral proceedings are non – public and Awards may be kept confidential;
• ƒƒ Awards are enforceable globally easier than court judgments.

Disadvantages

• ƒƒ Award is not binding for third parties;
• ƒƒ There are limited possibilities for Appeal;
• ƒƒ There is a possibility of bias in favor of the party that appointed an Arbitrator

Which are the primary domestic sources of law relating to domestic and foreign arbitral proceedings, recognition and enforcement of awards?

Domestic arbitration law

Primary source of law for domestic arbitration is Articles 867 to 903 of the Greek Code of Civil Procedure (GCCP) in force.

ENFORCEMENT OF FOREIGN JUDGMENTS
Can judgments from any country be enforced in Greece?

YES. Foreign judgments can be enforced in Greece irrespectively of the country where they have been issued. This can be done by virtue of EU law instruments for the judgments emanating from other member states, by virtue of bilateral conventions or by virtue of the Greek Code of Civil Procedure for the rest of the world. It should be noted that under Greek law, enforcement is different to recognition which takes place automatically without any particular procedure, provided that the relevant reasons of non-recognition of Greek law are observed (largely similar to the ones on enforcement presented herein). The above distinction
is central in Greek law.

ENFORCEMENT OF JUDGMENTS FROM OTHER EU MEMBER STATES
Which is the enforcement system for judgments emanating from other EU member states?

Greece is party to all EU regulations in the field of “judicial cooperation in civil matters”. Some of these regulations are important to international business transactions. Among them rank Regulation 1215/2012 of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Ia), Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European Order for Payment procedure (reference is made to this regulation, even though the “payment order” is not a “judgment” as such), Regulation (EC) No 805/2004 of the European Parliament and of the Council creating a European Enforcement Order for uncontested claims, Regulation 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European small claims procedure. This means that judgments as well as payment orders issued in other member states will be enforced in Greece under the provisions of these regulations and provided that they fall in their field of application.

I. INTRODUCTION

What kind of evidence may be submitted in an international arbitration?

The parties are generally free to submit any evidence they wish in order to prove the facts necessary to establish their respective cases.

Which law governs the conduct of arbitration?

The conduct of arbitration may be governed by international law, by national or local law of the place of arbitration or by some combination thereof. Certain principles and rules relating to evidence will in principle be applicable to any arbitration. They are now generally applicable to all international arbitrations unless the parties agree otherwise. However, there is no uniformity in the treatment of evidence in international arbitration.

Are there any restrictive rules governing evidence?

The procedure of most international tribunals is characterized by an absence of restrictive rules governing the form, submission and admissibility of evidence. The evaluation of evidence is entirely within the discretion of the Tribunal.

Mediation in Greece is still in its early steps. One can see the “mediation glass” either as halffull or as half-empty as regards its future in Greece in the coming years. Half-full it can be, if one takes into account that people are starting to show more interest in it and public discussion about mediation is ongoing. Half-empty it can be, if one emphasises on the quite extensive reaction of players of the justice, mostly in fear of the unknown.

When was mediation first introduced in Greece?

The EC Directive 2008/52 (the “Directive”) was first implemented in Greece by virtue of law 3898/2010 which has been by and large a repetition of the Directive. That law did not give considerable boost to mediation in this country. On the contrary, the players in the justice system remained either indifferent or skeptical vis-à-vis mediation. This led to a reluctance in embracing this new institution.

Nevertheless, mediation in Greece in not as new as people may tend to think. It has deep roots in this country. Old fashioned/ pre-modern mediation to settle communal disputes has been present in Greece for centuries, such as “Sasmos”, a word whose approximate translation into in English is “Fixing”. Indeed, the aim of mediation matches the one of traditional post-modern mediation, since both are designed as dispute resolution methods. Of course, the framework of the traditional types of mediation differs, to the extent that it used to place emphasis mostly on the preservation of the status and function of the community. On the contrary, in our post-modern world, mediation emphasises primarily on the parties themselves and their right of self-determination, as is currently perceived. This is not to undermine the prevailing view that mediation also has positive side effects to the well-being of the society, but as said, this is merely a side effect and does not alter the basic idea just discussed.

Introduction

ADR methods are deeply rooted in Greek tradition: In ancient Greece free citizens deployed educated slaves as mediators, to assist them in negotiations by conveying confidential offers and counter-offers between them, while arbitration was used throughout Greece, especially in rural areas with difficult access to the main cities.

It is definite that disputes are better resolved when the resolution initiative comes from those involved. An amicable resolution of the dispute, or at least a resolution method mutually agreed upon, entails more sustainable solutions in the long term, enabling the peaceful co-existence of those involved.

One of the main criteria that a country must meet to be perceived by investors as investment friendly is the performance of its justice system. A well-performing justice system with speedy resolution of cases can have direct and powerful effects on levels of investment and economic activity. Time and cost-effective justice is a prerequisite for business and commerce. If disputes are resolved in a timely fashion with well-established rules and procedures, investors perceive less risk and are more willing to invest in a country.

ADR can play a key role in facilitating investments in Greece. One of the inherent factors which remain as obstacle in attracting foreign direct investment in Greece is the slow pace of justice and its resulting costs. The time and the cost it takes to resolve a dispute through an ADR process compared to traditional litigation is among the basic reasons the ADR option is highly valued by investors. ADR affects investors’ perceptions of the business environment in the country, which will certainly help bringing more foreign investment.