Court interference in domestic arbitration proceedings is minimal and limited to the aid of arbitration (appointment of the umpire when party appointed arbitrators fail to do so, adjudication of challenges against arbitrators etc.).
The Award is binding upon the parties and produces res judicata effect. Such an effect though does no encompass prejudicial questions even if they were adjudicated and necessarily determined by the Tribunal. The Award is also immediately enforceable. CCP provides in article 897 for exclusive grounds for the annulment of an Award following a petition of a party to be brought before the competent Court of Appeals within 3 months from its notification. These grounds encompass, amongst others, grave irregularities in arbitral proceedings and in the composition/constitution of the Tribunal, nullity/ termination of the arbitration agreement, and, most importantly, the fact that the Award runs afoul of Greek public order. In its recent landmark decision no. 14/2015, the Greek Supreme Court in Plenary Session held that, also in domestic arbitration, the notion of public order should be interpreted to encompass the international public order in the sense of article 33 of the Greek Civil Code i.e. only the fundamental principles upon which the Greek legal order is premised and not merely the mandatory rules from the provisions of which the parties may not deviate. This decision ended a long lasting controversy in case law and legal literature in the context of which it was strongly suggested that in domestic arbitration, contrary to international arbitration, antithesis of the Award merely to a mandatory rule should suffice for its annulment. The Supreme Court adopted the opposite view, in order to treat equally the awards issued both in domestic as well as in international arbitration.
The grounds provided for in the law for setting aside an Award in domestic arbitration are nevertheless interpreted narrowly by State Courts which follow the principle of minimum interference. The merits of the Award are revisited only the extent that this is necessary to determine whether a ground of annulment exists. Statistically, only a small number of challenges to Awards rendered in domestic arbitration are successful.
CCP provides also for an action seeking declaration that the Award is nonexistent subject to exclusive grounds. In particular, this action for declaratory relief is granted in cases in which there is no agreement to arbitrate, the subject matter of the dispute was not arbitrable, or, the award was issued against a non-existent person or legal entity. There is no statutory time limit for such an action. The same grounds may be pleaded by means of an objection to a pending trial or against enforcement of the Award.
Admissibility and presentation of evidence in international commercial arbitration
Law 2735/1999, controlling international commercial arbitration conducted in Greece, does not regulate extensively evidentiary proceedings. Article 25 par. 1 provides that, absent an agreement of the parties to the contrary, the Tribunal may decide to waive the evidentiary hearing and admit only written or other kind of evidence. Furthermore, par. 2 of said article provides that parties are given prior notice of any evidentiary procedural act, whereas par. 3 provides that each party is given full knowledge of the evidence produced by its adversary. In addition, article 26 provides that, absent an agreement of the parties to the contrary, the Tribunal may appoint an expert witness. Lastly, Article 27 of Law 2735/1999 provides for the authority of the Tribunal to seek State Court evidence aid. The parties to the arbitration, enjoying procedural autonomy, are free to agree to both institutional (ICC, AAA, LCIA, UNCITRAL) or ad hoc rules of evidence. Most importantly though, given that said institutional rules usually do not entail extensive rules on evidence, the parties are allowed to agree to the application of the International Bar Association (IBA) Rules of evidence in order to supplement the institutional or ad hoc rules of their choice. It may also be the case that mandatory legal provisions of Greek law, being lex arbitri, come into play. An example would be the use of illegal evidence prohibited by Greek law in arbitration. The generally acceptable view is that mandatory rules of lex arbitri excluding illegal evidence prevail over institutional or ad hoc rules which may yield a different result. That being said, the use of forms or procedures of evidence not known to lex arbitri, such as discovery, is acceptable and may not be challenged, as long as it is provided by the evidence rules upon which the parties agreed.
Alternative dispute resolution & mediation
Alternative dispute resolution and mediation mechanisms are becoming a priority for Greek legislators. The CCP provides now for both in court and out of court ADR devises afforded both prior and during lis pendens. However, litigants are still quite reluctant to resort to ADR of some type. In any event this is not required for the admissibility of the complaint or the hearing before State Courts.
Enforcement of foreign judgements and foreign arbitral awards in Greece
Article 36 of Law 2735/1999 provides that the recognition and enforcement in Greece of all foreign arbitral awards shall be governed by the provisions of the 1958 New York Convention which has been incorporated into Greek law by virtue of legislative decree 4220/1961. Said provision, albeit indirectly, eliminated articles 903 and 906 CCP, which used to control the
recognition and enforcement of foreign arbitral awards outside the scope of the New York Convention. Hence, a unified legal regime is into place, which applies regardless of the place in which the foreign award was made. The New York Convention will be applicable, either directly, in cases the award was made in a signatory State, or by virtue of said article 36 in all other cases. We do not address here however interpretational questions which may be posed in relation to existing bilateral international conventions between Greece and other States.
The application of the New York Convention by Greek Courts does not depart from already well established case law doctrine in all signatory States. It is thus informed by the principle that the recognition of foreign awards shall be favored in order to safeguard the efficiency of arbitration as means of dispute resolution in the international context. Hence, Greek Courts are, as a matter of principle, quite reluctant to accept that a ground for non-recognition provided for in Article V actually exists in any particular case.
Recognition and enforcement of foreign State Court judgments is controlled by EU law instruments or by the provisions of articles 303 and 905 of CCP, depending on whether the judgment was made in a EU member State or not. Further on, Greece has signed a number of bilateral international conventions controlling this issue as well. The grounds for non-recognition/ non-enforcement provided for in the CCP entail lack of jurisdiction to adjudicate under Greek law, deprivation of fundamental procedural rights, the fact that the foreign State court judgment violates Greek international public order. In addition, though, it is provided that non-recognition/ non-enforcement may be premised on the fact that the foreign decision at hand is incompatible with a Greek decision on the same matter which produces res judicata effect.
