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Interpretation and Application of the New York Convention in the Republic of Greece

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Recognition and Enforcement of Foreign Arbitral Awards

Part of the book series: Ius Comparatum - Global Studies in Comparative Law ((GSCL,volume 23))

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Abstract

The New York Convention is well established in Greece and courts display a clear tendency to accept applications for enforcement of foreign arbitral awards by exercising caution when applying Convention grounds that would result in a refusal of recognition and enforcement. For example, Greek courts have never considered Article V (2) of the Convention ex officio. Further,the notion of public policy (Article V (2)(b))S is interpreted so narrowly that judicial review of awards in its name is particularly weakened. As will be developed further however, Greek courts give EU law a public policy dimension and tend to situate procedural due process violations (under Article V (1) (b)) under the rubric of public policy. Still, despite Greek openness to enforcement applications, vagueness and conflicting opinions remain an issue thanks to the uneven application of Convention rules under domestic law. For example, somewhat unique to Greek law is the fact that no provision is made for the limitation periods for the enforcement of a foreign arbitral award. As detailed below, changes to the Convention, including specification of a limitation period, would enhance uniformity in domestic law.

Kalliopi Makridou is Professor of Civil Procedure at the Faculty of Law of the Aristotle University of Thessaloniki, Director of Studies of the Mediation Institute of Thessaloniki and active lawyer at the Thessaloniki Bar Association.

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Notes

  1. 1.

    Legislative Decree 4220/1961 ratifying the Convention came into effect on 14/10/1962, pursuant to Article XII of the Convention.

  2. 2.

    S. Kousoulis, Arbitration – A Commentary, (n. 13 Athens-Thessaloniki 2004) 18; S. Stamatopoulos, ‘The legal framework of arbitration in Greece: CCP = UNICITRAL Model Law – interaction’ (2008) Review of Civil Procedure 781 et seq.

  3. 3.

    Ibid., Stamatopoulos.

  4. 4.

    See K. Kerameus, ‘The New Greek Law on International Commercial Arbitration’, (1999) 52 RHDI 583.

  5. 5.

    Article 906 CCP (Declaration of enforceability of foreign arbitral awards in Greece): Foreign arbitral awards shall be declared to be enforceable pursuant to the provisions of paragraph 1 of article 905, if the conditions set forth in article 903 have been met. Article 905 (1) CCP (Declaration of enforceability of foreign instruments in Greece): Subject to the provisions of international conventions, enforcement of a foreign instrument may be carried out in Greece as from the time such instrument was declared to be enforceable by a decision given by the Single-Member Court of First Instance in the district of which the debtor is domiciled or resides; failing this, by a decision of the Single-Member Court of First Instance of the capital of the state. The Single-Member Court of First Instance shall follow the procedure of articles 740 to 781. Article 903 CCP (Res judicata of foreign arbitral awards): Subject to the provisions of international conventions, a foreign arbitral award shall constitute res judicata without any further proceedings, if the following conditions are met: 1) if the arbitration agreement by virtue of which the award was rendered is valid according to the law governing such agreement; 2) if the object of the arbitral award can constitute the subject-matter of an arbitration agreement in accordance with Greek law; 3) if the award is not subject to any means of appeal or recourse or if proceedings contesting the validity of the award are not pending; 4) if the party who lost the case was not deprived of the right of defence during the arbitral proceedings; 5) if the award is not contrary to a judgment of a Greek court issued on the same case and constituting res judicata to the parties to the litigation in respect of which the foreign arbitral award was issued; 6) if the award is not contrary to public policy or good morals.

  6. 6.

    “The introduction of the Code of Civil Procedure does not affect the validity of procedural provisions that are based on international treaties.”

  7. 7.

    Verveniotis, International commercial arbitration, vol. 1. The New York Convention – Bilateral treaties (Athens-Komotini, 1990) 45, 49; S. Kousoulis, Arbitration – A Commentary, (n. 13 Athens-Thessaloniki 2004) 328.

  8. 8.

    Kerameus/Kondylis/Nikas (-Foustoukos), Commentary on Civil Procedure ΙΙ (2000), Art. 903 no. 17.

  9. 9.

    Piraeus Court of Appeal 341/1990, Piraeus Case Law Review 1991.143 (obiter dictum).

  10. 10.

    Kerameus/Kondylis/Nikas (- Foustoukos), Commentary on Civil Procedure ΙΙ (2000), Art. 903 no. 14.

  11. 11.

    Single-Member Court of First Instance of Piraeus 115/2013 (unpub.); Single-Member Court of First Instance of Piraeus 553/2013 (unpub.).

  12. 12.

    Article 28 (1): “The generally recognised rules of international law, as well as international conventions as of the time they are sanctioned by statute and become operative according to their respective conditions, shall be an integral part of domestic Greek law and shall prevail over any contrary provision of the law. The rules of international law and of international conventions shall be applicable to aliens only under the condition of reciprocity.” See Supreme Court (plenary session) 8/1997, Hellenic Justice 1997.764.

  13. 13.

    Pursuant to Article 2(1) of Legislative Decree 4220/1961; Angelos C. Foustoukos, ‘International arbitration and international arbitral award’ (1992) Legal Tribune 259; Tsikouri, ‘Issues relating to the form of arbitration agreements (according to the CCP and the New York convention)’ (1998) DEE Law Review 1199; Thessaloniki Court of Appeal 1157/2008, NOMOS; Thessaloniki Court of Appeal 4332/2011, NOMOS.

  14. 14.

    Athens Court of Appeal 7793/2006, (2007) DEE Law Review 440.

  15. 15.

    Single-Member Court of First Instance of Thessaloniki 22340/2012, (2012) DEE Law Review 1184.

  16. 16.

    Anna P. Mantakou, The drawing-up of arbitration agreements in international transactions (Athens/Komotini: Ant. N. Sakkoulas Publishers, 1998) 48-51; Angelos C. Foustoukos, DEE law Review 1999.702; S. Kousoulis, Arbitration – A Commentary, (n. 4 Athens-Thessaloniki 2004) 147.

  17. 17.

    G. Verveniotis, International commercial arbitration, vol. 1. The New York Convention – Bilateral treaties (Athens-Komotini, 1990) 57.

  18. 18.

    See Ap. Georgiadis, New forms of contract in the modern economy (1998), 44f.; Ap. Georgiadis, Law of obligations – General Part (1999), no. 42 et seq.; Ap. Georgiadis, Law of obligations – General Part (2007), 271-72. These theories are as follows: the ‘theory of absorption’, according to which the contract that governs the principal performance absorbs the others; the ‘combination theory’, according to which mixed-type contracts are analysed into their constituent parts and each of these is subject to a particular legal regime; the ‘theory of analogy’, according to which the rules governing one type of contract are applied proportionately to another; and ‘creative theory’, according to which the choice of a suitable legislative framework is left to the discretion of the judge, who has recourse to good faith and fair trade practice in a case-by-case basis. The Greek courts principally apply the absorption theory and only when they are unable to distinguish the primary and secondary legal relationships do they proceed to apply the other theories. See Ap. Georgiadis, Law of obligations – General Part (2007), 272 no. 21.

  19. 19.

    G.S. Maridakis, The Enforcement of Foreign Judgments (n.35, Athens Kleisiounis, 1972) 122; I. Brinias, Enforcement Proceedings (2nd ed Athens 1983), Art. 906, 125-126; Kerameus/Kondylis/Nikas (- Foustoukos), Commentary on Civil Procedure ΙΙ (2000), n. 10 para. 13, no. 43.

  20. 20.

    K. Kalavros, The concept of a foreign arbitral award (Athens 1982), 17-18.

  21. 21.

    I. Brinias, Enforcement Proceedings (2nd ed Athens 1983), n. 37.

  22. 22.

    Makridou, DEE Law Review 2011.645; Supreme Court 620/1971, Legal Tribune 1972.182.

  23. 23.

    Supreme Court 1404/1990, Hellenic Justice 1992.767.

  24. 24.

    K. Kalavros, The concept of a foreign arbitral award (n. 38 Athens 1982) 21.

  25. 25.

    K. Kalavros, The concept of a foreign arbitral award (n. 38 Athens 1982) 37.

  26. 26.

    Kerameus/Kondylis/Nikas (-Foustoukos), Commentary on Civil Procedure ΙΙ (2000), Art. 903 no. 2.

  27. 27.

    Vasilakakis, Review of Commercial Law (1997) 295-296.

  28. 28.

    G.S. Maridakis, The Enforcement of Foreign Judgments (n.35, Athens Kleisiounis, 1972) 112 et seq.; K. Kerameus, ‘Arbitrators’ power of judgment and the extent of the res judicata effect of their decisions’ (1970) Dike 294.

  29. 29.

    Athens Court of Appeal 2712/1978, Legal Tribune 1979.421, note Verveniotis; Foustoukos, Legal Tribune 1992.261; for the subsequent development of case law up until the 1990s see, in detail, Vasilakakis, Review of Commercial Law (1997) 28-29.

  30. 30.

    S. Vrellis, Private international law (Athens: Nomiki Bibliothiki, 2008) 468; K. Kalavros, The concept of a foreign arbitral award (n. 38 Athens 1982) 95 et seq. See also Tsikrika, Public policy as a means of controlling foreign arbitral awards (Athens Sakkoulas 1992) 12 et seq,, who adopts the view that a decisive criterion for deciding whether an arbitral award is foreign or not is the procedural and substantive rules applied by the arbitral tribunal.

  31. 31.

    Supreme Court (plenary session) 899/1985, Hellenic Justice 1985.1124 = Yearbook of Commercial Arbitration 1988, 417, but note Foustoukos (this was an arbitration case conducted in London in accordance with English arbitration law). The same criterion was also adopted, amongst other criteria, by the late George Mitsopoulos (legal opinion, Dike 1990.808), who came to the conclusion that it was a foreign arbitral award. To be precise, the case on which he expressed his opinion was an arbitration case conducted in Switzerland under Swiss procedural law; the award was issued in Switzerland at the level of substantive law and the arbitrators decided ex bono et aequo.

  32. 32.

    Supreme Court (plenary session) 11/2009, Theory and Practice of Civil Law 2009.986 (obiter dictum); Piraeus Court of Appeal 1206/1986,Piraeus Case Law Review 1986.287; Single-Member Court of First Instance of Athens 3359/1983, Hellenic Justice 1984.731; Single-Member Court of First Instance of Kilkis 368/2010, Review of Civil Procedure 2011.370.

  33. 33.

    S. Kousoulis, Arbitration – A Commentary, (n. 13 Athens-Thessaloniki 2004), 159-60; Kerameus/Kondylis/Nikas (-Foustoukos), Commentary on Civil Procedure ΙΙ (2000), n. 10 para. 13, no. 45.

  34. 34.

    Athens Court of Appeal 6185/1994, Dike 1995.803; Piraeus Court of Appeal 628/2004, NOMOS; Single-Member Court of First Instance of Thessaloniki 1292/2002 Annals of Private Law 2002.261; Single-Member Court of First Instance of Piraeus 5780/2011, unpub. By application of the territoriality criterion, an arbitral award issued (completed and signed) in London was regarded as a foreign arbitral award, Mitsopoulos-Podimata, The subjective limits of the res judicata of an arbitral award, Legal Tribune 2007.1270. It should, however, be noted that in this case the arbitration procedure followed the LCIA Arbitration Rules. An arbitral award issued in Liverpool, England, was also regarded as a foreign award, although in this case the Rules and Regulations of the International Cotton Association were applied, which refer to the application of English law and the Convention, Makridou, DEE Law Review 2011.645.

  35. 35.

    S. Kousoulis, Arbitration – A Commentary, (n. 4 Athens-Thessaloniki 2004), p. 146.

  36. 36.

    See in detail section 1.5.

  37. 37.

    For example, Legislative Decree 429/1974 ‘on the ratification of the Convention signed between Greece and Romania’, which includes both commercial and civil cases.

  38. 38.

    See section 1.5.

  39. 39.

    G. Verveniotis, International commercial arbitration, vol. 1. The New York Convention – Bilateral treaties (no.6 Athens-Komotini, 1990) 95 et seq.

  40. 40.

    Supreme Court (plenary session) 8/1997,Hellenic Justice 1997.764; Thessaloniki Court of Appeal 871/1998, DEE Law Review 1999.735; Single-Member Court of First Instance of Xanthi 10/2002, Legal Tribune 2002.1003 (‘Article II [2] of the Convention contains an autonomous rule of substantive law and allows the judge no recourse to any other law of substantive law or private international law in examining the validity of an arbitration agreement, in respect of the form in which it is concluded.’). K Kerameus “The enforcement in Greece of English judicial decisions and arbitral awards” (1985) Hellenic Justice 387; Tsikouri, DEE Law Review 1998.1202.

  41. 41.

    Art. 11 of the Civil Code

  42. 42.

    Art. 25 of the Civil Code

  43. 43.

    Supreme Court 1932/2006, Legal Tribune 2007.907; Supreme Court 1400/2008, Annals of Private Law 2009.335; Piraeus Court of Appeal 475/2005, DEE Law Review 2006.78; Multi-Member Court of First Instance of Piraeus 930/2005, NOMOS.

  44. 44.

    S. Vrellis, Private international law (n. 52 Athens: Nomiki Bibliothiki, 2008) 466-467; Supreme Court 1932/2006, Legal Tribune 2007.907; Piraeus Court of Appeal 226/1994,Review of Maritime Law 1994.118; Piraeus Court of Appeal 475/2005, DEE Law Review 2006.78.

  45. 45.

    Ibid., Vrellis; Athens Court of Appeal 1518/1994, Dike 1995.392.

  46. 46.

    Supreme Court 1066/2007, Hellenic Justice 2008.1032; Supreme Court 1400/2008, Annals of Private Law 2009.335; Piraeus Court of Appeal 923/2003, DEE Law Review 2004.566 (the first work contract had been concluded orally and the arbitration clause was therefore invalid, while the second arbitration agreement was “ in writing” and therefore valid ; even so, its substantive validity and, more particularly, the legal submission to arbitration of labour disputes had to be decided under English law, which was applicable in this particular case).

  47. 47.

    Single-Member Court of First Instance of Thessaloniki 22340/2012, DEE Law Review 2012.1184 (‘the arbitration agreement is valid in respect of its content on the basis of Chinese law as the law of the country where the award was issued, since there is no indication whatsoever of submission to another law’).

  48. 48.

    Piraeus Court of Appeal 475/2005, DEE Law Review 2006.78.

  49. 49.

    Supreme Court 2273/2009,Theory and Practice of Civil Law 2010.1237, note Komnios; Athens Court of Appeal 1213/2006, Hellenic Justice 2006.1105; Krispi-Nikoletopoulou “Arbitration under private international law” (1958) Journal of Greek jurists 511; Vrellis, note under Thessaloniki Court of Appeal 7/1987, Legal Tribune 1989.454.

  50. 50.

    For a detailed analysis of the different views see S. Kousoulis, Arbitration – A Commentary, (n. 13 Athens-Thessaloniki 2004) 39-40; Menti, Tacit power of attorney (2005) 231

  51. 51.

    “The following objections should be raised at the hearing of the case, otherwise they are rejected as inadmissible … b) the submission of the case to arbitration.”

  52. 52.

    “If the dispute falls within the scope of an arbitration agreement, the court shall refer the case to arbitration. However, the effects of the filing of the claim shall be maintained. If the arbitration agreement expires, the case shall be brought back to court by writ of summons.”

  53. 53.

    See Supreme Court (plenary session) 16/2002, Annals of Private Law 2002.919; Supreme Court 738/2001, NOMOS; Athens Court of Appeal 704/2001, Review of Building Law 2001.148; Piraeus Court of Appeal 101/2008,Theory and Practice of Civil Law 2008.1109, note Katiforis.

  54. 54.

    Supreme Court 1400/2008, Annals of Private Law 2009.335; Multi-Member Court of First Instance of Piraeus 930/2005, NOMOS.

  55. 55.

    K. Kerameus “The review of arbitration agreements by the civil courts before the issue of the arbitral award” (1994) Legal Studies II 440.

  56. 56.

    Supreme Court 738/2001, NOMOS; Kondylis, Res judicata under the Code of Civil Procedure (2007), p. 133, n. 5.

  57. 57.

    Hellenic Justice 1997.733.

  58. 58.

    Supreme Court 1425/1999,Hellenic Justice 2000.693; Supreme Court 738/2001, Hellenic Justice 2002.720; Nikas, Legal interests in the civil trial (1981) 106.

  59. 59.

    Nafplion Court of Appeal 16/1990, Hellenic Justice 1991.1322.

  60. 60.

    K. Kerameus, Studia Iuridica II (Athens Sakkoulas 1994)442.

  61. 61.

    The following answers have been based not only on Greek legal theory but also on the published case law from the period 1980-2012, as well as on the unpublished case law of the Courts of First Instance of Athens, Thessaloniki and Piraeus from the period 2007-2013. I would like to thank Ms Eleni Zagouraki , lawyer of the Athens Bar Association and Mr Stratos Ambatzis - lawyer of the Thessaloniki Bar Association - for compiling the list of court decisions

  62. 62.

    Supreme Court 460/1990, Hellenic Justice 1991.532; Athens Court of Appeal 29/2010, Theory and Practice of Civil Law 2010.75.

  63. 63.

    See Section 3.2.5.

  64. 64.

    The concept of a delocalised arbitration has not yet been adopted by Greek case law.

  65. 65.

    Single-Member Court of First Instance of Athens 2405/2009, unpub.

  66. 66.

    See Section 3.1.1.

  67. 67.

    K. Kerameus, Studia Iuridica V (Athens Sakkoulas S.A 2008) 193.

  68. 68.

    K. Kerameus, Studia Iuridica III (Athens Sakkoulas/Kluwer 1995) 308; K. Kerameus Legal Studies IV (Athens Sakkoulas 2006), p. 862; Nikas “Issues relating to the annulment and setting aside of arbitral awards” in Essays in memory of Stylianos N. Koussoulis (2012, Sakkoulas Publications) 370.

  69. 69.

    Supreme Court 812/1984, Dike 1985.1036; Supreme Court 356/1991, Journal of Greek Jurists 1992.189; Supreme Court 851/1995, Hellenic Justice 1997.1071.

  70. 70.

    V. Vathrakokoilis, CCP IV (1996), Art. 900 no. 2.

  71. 71.

    See Section 2.2.

  72. 72.

    “The parties to the litigation, their legal representatives and attorneys shall observe the rules of good morals and good faith, avoid actions that clearly lead to a protraction of the trial and set out the actual facts relating to the case exactly as they know them to be in a full and truthful manner, avoiding ambiguous and vague expressions.”

  73. 73.

    Makridou, DEE Law Review 2011.651.

  74. 74.

    See Supreme Court 496/1994, Legal Tribune 1995.552 and especially Supreme Court (plenary session) 11/2009, DEE Law Review 2010.1213.

  75. 75.

    DEE Law Review (2010) 1213 at para. II.

  76. 76.

    See Section 3.2.7.

  77. 77.

    ECJ 26.10.2006, Claro/Movil,C- 168/05,European Law Review 2006.540, note Giannopoulos· 16.11.2010, Pohotovost/Korchoska),C-76/10.

  78. 78.

    See section 3.2.6.

  79. 79.

    See section 3.2.7.

  80. 80.

    Supreme Court 544/1996 , Hellenic Justice 1998.548; K. Kerameus, Studia Iuridica III (Athens Sakkoulas/Kluwer 1995) 563, 569-70; Anna P. Mantakou, The drawing-up of arbitration agreements in international transactions (Athens/Komotini: Ant. N. Sakkoulas Publishers, 1998) 144 et seq.; Art. 25 of the Greek Civil Code, which provides for ‘application of the law to which the parties have subjected themselves or, failing any indication thereon, the law which is appropriate to the contract having regard to the whole of the special circumstances.’

  81. 81.

    Thessaloniki Court of Appeal 871/1998, DEE Law Review 1999.735.

  82. 82.

    See Section 2.1.

  83. 83.

    Single-Member Court of First Instance of Thessaloniki 22340/2012, DEE Law Review 2012.1184; see also Multi-Member Court of First Instance of Rhodes 84/2005, DEE Law Review 2006.80, which rendered a judgment on the validity of an arbitration clause in a main contract that included a term on the application of Swiss law; taking into account the fact that the arbitration had been carried out in Switzerland, the court came to the conclusion that there was a tacit agreement between the parties over the subjection of the arbitration clause to Swiss law.

  84. 84.

    K. Kerameus “The representation of legal entities in the drawing–up of arbitration agreements and the enforcement of arbitral awards” legal opinion (Athens Sakkoulas 1994) Legal Studies II 681-82; Foustoukos, Legal Tribune 1988.1378; Makridou, DEE Law Review 2011.648.

  85. 85.

    ‘The capacity of a legal entity is governed by the law of its actual seat.’

  86. 86.

    Supreme Court (plenary session) 461/1978, Legal Tribune 1979.211; Supreme Court (plenary session) 2/1999,Hellenic Justice 1999.271.

  87. 87.

    Athens Court of Appeal 29/2010, Theory and Practice of Civil Law 2010.725.

  88. 88.

    Single-Member Court of First Instance of Piraeus 2476/2010, unpub.

  89. 89.

    Single-Member Court of First Instance of Athens 2516/2008, unpub.

  90. 90.

    See Section 3.2.7.

  91. 91.

    Thessaloniki Court of Appeal 871/1998, DEE Law Review 1999.735.

  92. 92.

    Supreme Court 102/2012, DEE Law Review 2012.810.

  93. 93.

    Makridou, DEE Law Review 2011.644 et seq.

  94. 94.

    ‘The parties to these contracts have expressly chosen English as the language in which documents and other evidence are to be put forward.’

  95. 95.

    Nikas “Issues relating to the annulment and setting aside of arbitral awards” in Essays in memory of Stylianos N. Koussoulis (2012, Sakkoulas Publications) 367-368.

  96. 96.

    Unlike in Greek law, the non-existence of an arbitration agreement means the non-existence – and not the setting aside – of an arbitral award, in accordance with Art. 901 CCP; Ibid., Nikas.

  97. 97.

    Nikas “Issues relating to the annulment and setting aside of arbitral awards” in Essays in memory of Stylianos N. Koussoulis (2012, Sakkoulas Publications 369, with references to the case law.

  98. 98.

    S. Kousoulis, Arbitration – A Commentary, (n. 4 Athens-Thessaloniki 2004) 304. The opposite view has also been expressed (Vrellis, note under Thessaloniki Court of Appeal decision 7/1987, Legal Tribune 1989.454/455), which holds that the rules of interpretation of Greek law are crucial. However, this particular view is likely to lead to interpretations of arbitration agreements that could directly conflict with the will of the parties.

  99. 99.

    See Section 2.1.

  100. 100.

    K. Kerameus “The scope of arbitration agreements” Legal Studies IV (Athens Sakkoulas 2006) 820; David St. John Sutton, Judith Gill, Matthew Gearing, Russell on Arbitration (24th edn Sweet & Maxwell Thomson Reuters London 2010) no. 2-069.

  101. 101.

    Single-Member Court of First Instance of Athens 1086/2011, unpub.; Single-Member Court of First Instance of Athens 1087/2011, unpub.

  102. 102.

    “When interpreting a declaration of will, the true intention shall be sought without sticking to the literal meaning of the words.”

  103. 103.

    “Contracts shall be interpreted according to the requirements of good faith, taking into account business usages.”

  104. 104.

    Supreme Court 102/2012, DEE Law Review 2012.810.

  105. 105.

    Supreme Court 2273/2009, Theory and Practice of Civil law (2010) 1237.

  106. 106.

    Mitsopoulos-Podimata, Legal Tribune 2007.1271-1272.

  107. 107.

    Annals of Private Law (2009) 335.

  108. 108.

    Ibid.

  109. 109.

    Likewise, though on a domestic arbitral award: Supreme Court (plenary session) 176/1976, Legal Tribune 1976.706.

  110. 110.

    See Supreme Court 536/2007, Hellenic Justice 2008.1012.

  111. 111.

    G. Verveniotis, International commercial arbitration, vol. 1. The New York Convention – Bilateral treaties (no. 6 Athens-Komotini, 1990) 191; S. Kousoulis, Arbitration – A Commentary, (n. 4 Athens-Thessaloniki 2004) 304.

  112. 112.

    Supreme Court (plenary session) 1572/1981, Journal of Greek Jurists (1982) 850, maj.; Thessaloniki Court of Appeal 871/1998, DEE Law Review 1999.735.

  113. 113.

    Supreme Court (plenary session) 899/1985,Legal Tribune 1985.1399; Supreme Court 1066/2007, Review of Civil Procedure 2008.68, note Giannopoulos; Supreme Court 537/2007, NOMOS ; Supreme Court 1618/2007,Annals of Private Law 2008.540; Piraeus Court of Appeal 738/2010, Review of Maritime Law 2010.438; Athens Court of Appeal 29/2010,Theory and Practice of Civil law 2010.725, note Komnios; Single-Member Court of First Instance of Athens 8126/2008, unpub.; Single-Member Court of First Instance of Athens 1170/2013, unpub.

  114. 114.

    Supreme Court 954/1984, Arbitration Law Review 1992.952; Supreme Court 1066/2007, Review of Civil Procedure 2008.68, note Giannopoulos; Single-Member Court of First Instance of Athens 8126/2008, unpub.

  115. 115.

    24/4/2009, C-420/2007, M. Apostolides, opinion 60, Review of Civil Procedure 2009.407.

  116. 116.

    Single-Member Court of First Instance of Athens 2405/2009 (unpub.), which ordered the hearing to be repeated until such time as the relevant certificate was presented.

  117. 117.

    Supreme Court (plenary session) 899/1985, Legal Tribune 1985.1399.

  118. 118.

    “Subject to the provisions of international conventions, a foreign arbitral award shall constitute res judicata without any further proceedings if the following conditions are met:…3) if the award is not subject to any means of appeal or recourse, or if proceedings contesting the validity of the award are not pending.”

  119. 119.

    Athens Court of Appeal 967/1995, Hellenic Justice 1996.1399.

  120. 120.

    S. Kousoulis, Arbitration – A Commentary, (n. 4 Athens-Thessaloniki 2004) 307.

  121. 121.

    Supreme Court 1066/2007, NOMOS; Athens Court of Appeal 6815/1994, Dike 1995.903; Piraeus Court of Appeal 738/2010, Review of Maritime law 2010.438.

  122. 122.

    Supreme Court (plenary session) 6/1990, Legal Tribune 1990.1321/1322; Supreme Court 250/1990, Journal of Greek jurists 1990.717; Piraeus Court of Appeal 30/2012, NOMOS.

  123. 123.

    Kerameus, Tribute to G. Oikonomopoulos (1981) 105 et seq.; Nikas “The impossibility of recognising and enforcing foreign arbitral awards relating to consumers’ disputes” (2009) Harmenopoulos 1475.

  124. 124.

    In Greek domestic law, the relevant provisions are those of Art. 867 CCP: “Private law disputes may, by agreement, be submitted to arbitration if the parties to such agreement are empowered to freely dispose of the subject-matter of the dispute. The disputes referred to in article 663 [labour disputes] cannot be submitted to arbitration”; and art. 901(1)(b) CCP: “Acknowledgement of the non-existence of an arbitral award by means of an action or plea of defence may only be sought in the following cases:…b) if the award was rendered on a subject-matter that could not be submitted to arbitration”. See Piraeus Court of Appeal 77/2006, Piraeus Case-Law Review 2006.195; Piraeus Court of Appeal 869/2007, Dike 2007.747, according to which, pursuant to Art. 867 CCP, an agreement to submit labour disputes to arbitration is invalid. See also, N. Pappas “The arbitrability of disputes” (2002) DEE Law Review 69.

  125. 125.

    Thessaloniki Court of Appeal 1294/1989, Harmenopoulos 1989.468.

  126. 126.

    Athens Court of Appeal 4496/2008, Hellenic Justice 2009.555; Single-Member Court of First Instance of Athens 7058/2009, unpub.; Single-Member Court of First Instance of Athens 3944/2010, unpub.

  127. 127.

    “The private will may not exclude the application of public policy rules.”

  128. 128.

    “The provisions of a foreign law shall not apply if the application thereof is contrary to good morals or in general to public policy.”

  129. 129.

    See S. Vrellis, Private international law (Athens: Nomiki Bibliothiki, 2008) 471, n. 13 ; and See generally Tsikrika, Public policy as a means of controlling foreign arbitral awards (Athens Sakkoulas 1992).

  130. 130.

    Supreme Court (plenary session) 17/1999, Hellenic Justice 1999.1288; Supreme Court 1255/2006, Hellenic Justice 2007.435; Supreme Court 11/2009, DEE Law Review 2010.1213; Supreme Court 1665/2009, Hellenic Justice 2010.703; Supreme Court 2273/2009, Theory and Practice of Civil Law 2010.1237; Athens Court of Appeal 29/2010, Theory and Practice of Civil Law 2010.725, note Komnios; Single-Member Court of First Instance of Athens 2950/2008, unpub.; Single-Member Court of First Instance of Piraeus 30/2012, NOMOS.

  131. 131.

    Supreme Court (plenary session) 17/1999, Hellenic Justice 1999.1288.

  132. 132.

    Russell on Arbitration David St. John Sutton, Judith Gill, Matthew Gearing, Russell on Arbitration (24th edn Sweet & Maxwell Thomson Reuters London 2010) 138, no. 8-044.

  133. 133.

    Supreme Court 350/1979, Legal Tribune 1979.425.

  134. 134.

    See also the new EU Reg. 650/2012, Art. 35 (“manifestly incompatible with the public policy”).

  135. 135.

    Athens Court of Appeal 6815/1994, Dike 1995.903.

  136. 136.

    Supreme Court 1665/2009, DEE Law Review 2011. 88.

  137. 137.

    Articles 101,102 Treaty on the Functioning of the European Union, formerly articles 81,82 of the EC Treaty.

  138. 138.

    Nikas, Law of Enforcement I, (2010) para 13, no 63; Supreme Court 1066/2007, Review of Civil Procedure 2008.68, note Giannopoulos; Supreme Court 2273/2009, Theory and Practice of Civil Law 2010.1237. In these decisions the issue of conflict with public policy was raised because of the award of court costs that were much greater than the amount of the arbitral award. The disproportionality of the court costs to the amount of the claim that was awarded was judged on the basis of the Greek procedural rules in Art. 173 et seq. and 822 CCP, which regulate the imposition of court costs in civil trials.

  139. 139.

    Archives of Case Law 2009.678.

  140. 140.

    Ibid. at para. II.

  141. 141.

    See “Fundamental procedural principles” Chapter 13, Articles 106-116 CCP.

  142. 142.

    Supreme Court (plenary session) 11/2009, Hellenic Justice 2009.981; Supreme Court 1829/2006, Review of European Law 2006.579, note Giannopoulos.

  143. 143.

    Piraeus Court of Appeal 341/1990, Piraeus Case Law Review 1990.143; Thessaloniki Court of Appeal 871/1998, DEE Law Review 1999.735; Single-Member Court of First Instance of Thessaloniki 1292/2002, Annals of Private Law 2002.261; Single-Member Court of First Instance of Piraeus 2767/2010, NOMOS.

  144. 144.

    Supreme Court (plenary session) 1572/1981, Journal of Greek Jurists 1982.850, maj.; Thessaloniki Court of Appeal 871/1998, DEE Law Review 1999.735.

  145. 145.

    Doubts about the decision are also expressed by K. Kerameus, “La Fonction Juridictionelle de l’Arbitre dans la jurisprudence Hellénique récente” Studia Iuridica III (Athens Sakkoulas 1995) 274-275.

  146. 146.

    Review of Civil Procedure 2008.68, note Giannopoulos.

  147. 147.

    Athens Court of Appeal 6115/2005, Epidikia 2006.88; Giannopoulos, The conflict between a foreign judgment and Greek public policy due to the award of excessive costs, Harmenopoulos 2006.1832.

  148. 148.

    Supreme Court 1829/2006, Review of European Law 2006.579, note Giannopoulos. On this subject see Meidanis, The imposition of excessive costs arising from a foreign award. Issues of enforcement in Greece in the light of the principle of proportionality and the right to free access to justice (thoughts occasioned by Areios Pagos decision 1829/2006), Annals of Private Law 2007.833.

  149. 149.

    Likewise Single-Member Court of First Instance of Athens 1086/2011 on a foreign arbitral award.

  150. 150.

    Single-Member Court of First Instance of Thessaloniki 3912/2007, unpub.

  151. 151.

    Review of Civil Procedure 2008.68, note Giannopoulos.

  152. 152.

    Likewise Single-Member Court of First Instance of Athens 4255/2012, unpub.

  153. 153.

    Theory and Practice of Civil Law 2010.1237, note Komnios.

  154. 154.

    Ibid., at para. IV.

  155. 155.

    See Art. 559 (1) CCP. Supreme Court 1260/2002, Legal Tribune 2003.1020; Athens Court of Appeal 4332/2011, NOMOS; Single-Member Court of First Instance of Thessaloniki 1343/2012, unpub.

    Art. 559 CCP: “Review is permitted only 1) if there has been a violation of a rule of substantive law which also contains within it the interpretative rules of legal acts, regardless of whether it is a law or custom, Greek or foreign, of domestic or international law. The violation of the lessons of common experience constitute a ground for review only if these lessons concern the interpretation of rules of law or the subjection of real facts to them.”

  156. 156.

    Piraeus Court of Appeal 30/2012, NOMOS.

  157. 157.

    Supreme Court 1710/1997, DEE Law Review 1998.1214.

  158. 158.

    Single-Member Court of First Instance of Athens 7688/2008, unpub.

  159. 159.

    Single-Member Court of First Instance of Kilkis 368/2010, Theory and Practice of Civil Law 2010.1370, note Giannopoulos.

  160. 160.

    Supreme Court (plenary session) 6/1990, Hellenic Justice 1990.552; Supreme Court (plenary session) 9/1990, Review of Maritime Law 1991.1.

  161. 161.

    Thus, according to Greek case law, during the enforcement proceedings of a foreign arbitral award it is not permissible to raise an objection of limitation in respect of the claim. Piraeus Court of Appeal 1168/1986, Arbitration Law Review 1992.1023; abuse of a right, Nikas, Hellenic Justice 2001.358; the assertion that no compensation is owed due to the cancellation of the contract, Supreme Court (plenary session) 6/1990, Legal Tribune 1990.1321; Piraeus Court of Appeal 635/1981, Arbitration Law Review 1992.1140; as well as the assertion that a higher amount of interest was awarded than that provided for in the foreign substantive law, Piraeus Court of Appeal 1206/1986, Piraeus Case Law Review 1986.287.

  162. 162.

    Supreme Court 2273/2009, Theory and Practice of Civil Law 2010.1237, note Komnios; Piraeus Court of Appeal 341/1990, Piraeus Case Law Review 1990.143; Athens Court of Appeal 6815/1994, Dike 1995.903.

  163. 163.

    K. Kerameus “The reasoning of judicial decisions” (1991) Hellenic Justice 1424; Supreme Court (plenary session) 11/2009, Hellenic Justice 2009.981; Supreme Court 1665/2009, DEE Law Review 2011.88; Thessaloniki Court of Appeal 451/2000, Harmenopoulos 2000.829; Single-Member Court of First Instance of Athens 7688/2008, unpub.

  164. 164.

    Piraeus Court of Appeal 30/2012, NOMOS.

  165. 165.

    For a detailed analysis see Vasilakakis “The enforceability of foreign arbitral awards that award punitive damages” (2006) DEE Law Review 459 et seq.

  166. 166.

    Kerameus/Vrellis/Grammatikaki-Alexiou, Koinodikion (2000) 31 et seq.

  167. 167.

    “The reparation of the damage constitutes the highest level of protection for the injured party in order to avoid the latter’s enrichment as a result thereof.”

  168. 168.

    Supreme Court (plenary session) 17/1999, Hellenic Justice 1999.1288; likewise the later decisions Supreme Court 247/2002, NOMOS; Supreme Court 102/2012, DEE Law Review 2012.810. See Komnios “Public policy and the institution of punitive damages in the light of Areios Pagos (plenary session) decision 17/1999” (2001) Harmenopoulos 450; Kaisis, Manifestations of public policy in the recognition and enforcement of foreign judicial decisions and arbitral awards (Sakkoulas Athens-Thessaloniki 2003) 108 -109.

  169. 169.

    Supreme Court (plenary session) 44/2005, Hellenic Justice 2005.1649.

  170. 170.

    Athens Court of Appeal 4332/2011, NOMOS.

  171. 171.

    Vasilakakis, DEE Law Review 2006.460-461, with references to American case law. The most significant American case is Mastrobuono v. Shearson Lehman Hutton Inc. (1995) 514 U.S. 52, which was the first case in which it was accepted that it was possible for an arbitral tribunal to award punitive damages.

  172. 172.

    Annals of Private Law 2002.922 and comments in Kaisis, Manifestations of public policy in the recognition and enforcement of foreign judicial decisions and arbitral awards (Sakkoulas Athens-Thessaloniki 2003) 198-200; Vasilakakis, DEE Law Review 2006.462.

  173. 173.

    Athens Court of Appeal 4332/2011, NOMOS, which held that there was no disproportionality; Single-Member Court of First Instance of Thessaloniki 1343/2012, which dismissed the application for enforcement of an Ukrainian arbitral award in respect of the punitive damages that had been awarded because of their manifest disproportionality to the damage, since the amounts of the two compensations were equal (99,751 euros in both cases).

  174. 174.

    Supreme Court 2273/2009, Theory and Practice of Civil law 2010.1237. See also Nikas Harmenopoulos (2009) 1475-1476.

  175. 175.

    ECJ 6.10.2009 (Asturcom/Nogueira), C-40/08, ECR 2009, I-9579.

  176. 176.

    Supreme Court (plenary session) 472/1983, Legal Tribune 1984.48· Supreme Court 1547/2007 Review of Civil Procedure (2008, 91) 1402/2008, NOMOS.

  177. 177.

    Dellios, Terms in contracts concluded with consumers (2013) 459 et seq.

  178. 178.

    S. Kousoulis, Arbitration – A Commentary, (n. 13 Athens-Thessaloniki 2004) 294.

  179. 179.

    Single-Member Court of First Instance of Athens 4255/2012, unpub.

  180. 180.

    S. Kousoulis, Arbitration – A Commentary, (n. 13 Athens-Thessaloniki 2004) 294. Art. 40 CCP (Jurisdiction over property of foreign residents): “(1) Proceedings against persons who are not resident in Greece, provided that the subject-matter of such proceedings is property, may be opened before the court in the district of which the defendant’s property or the subject-matter of the litigation is situated. (2) If the property consists in capital claims against a third party, the property is held to be situated within the place of residence of the third party.”

  181. 181.

    OJ C 298/24.11.1986.

  182. 182.

    In accordance with Art. 25 CCP. Single-Member Court of First Instance of Athens 2585/2011, unpub.; Single-Member Court of First Instance of Athens 3854/2012, unpub.

  183. 183.

    Athens Court of Appeal 4332.2011, NOMOS.

  184. 184.

    Piraeus Court of Appeal 783/1988, Review of Maritime Law 1989.255.

  185. 185.

    Athens Court of Appeal 4969/2001, NOMOS; Single-Member Court of First Instance of Piraeus 2476/2010, unpub.; Single-Member Court of First Instance of Piraeus 2326/2011, unpub.

  186. 186.

    Athens Court of Appeal 4969/2001, Hellenic Justice 2002.470; Piraeus Court of Appeal 57/2001, Review of Maritime Law 2001.462; Piraeus Court of Appeal 403/2002, Review of Maritime Law 2002.129; Piraeus Court of Appeal 145/2006, Piraeus case-law Review 2006.359; Single-Member Court of First Instance of Piraeus 10902/2011, unpub.

  187. 187.

    Athens Court of Appeal 6815/1994, Dike 1995.903 (in this case a period of six years).

  188. 188.

    See Articles 740-781 CCP.

  189. 189.

    Kerameus/Kondylis/Nikas (- Arvanitakis), Commentary on Civil Procedure ΙΙ (2000) Art. 748, no. 7.

  190. 190.

    E.g. Art. 787 CCP (establishment or dissolution of associations); Art. 788 CCP (control of limited liability companies); Art. 793 CCP (appointment of sequestrators); Art. 797 CCP (judicial authorisation to act on behalf of a minor); Art. 800 CCP (performance of adoption); Art. 807 CCP (publication of a will).

  191. 191.

    Piraeus Court of Appeal 30/2012, NOMOS.

  192. 192.

    Single-Member Court of First Instance of Thessaloniki 1292/2002, Annals of Private Law 2002.261; Single-Member Court of First Instance of Athens 4739/2007, unpub.; Single-Member Court of First Instance of Piraeus 5892/2010, unpub.; Single-Member Court of First Instance of Athens 4948/2010, 4952/2010, 4954/2010, unpub.; Single-Member Court of First Instance of Piraeus 666/2011, unpub.; Single-Member Court of First Instance of Piraeus 5780/2011, unpub.; Single-Member Court of First Instance of Athens 2585/2011, unpub.; Single-Member Court of First Instance of Athens 4577/2012, unpub.; Single-Member Court of First Instance of Athens 1134/2013, unpub. The opposite view has been held only in Athens Court of Appeal decision 29/2010, Theory and Practice of civil Law 2010.725, note Komnios, which held that it is not necessary for the application for recognition and enforcement to be addressed to or served on the opponent (who remains entitled to challenge the decision afterwards by third party opposition).

  193. 193.

    Single-Member Court of First Instance of Piraeus 5892/2010, unpub.; Single-Member Court of First Instance of Piraeus 666/2011, unpub,; Single-Member Court of First Instance of Piraeus 5780/2011, unpub.; Single-Member Court of First Instance of Athens 1134/2013, unpub. See, however, Single-Member Court of First Instance of Athens 4739/2007, unpub.; Single-Member Court of First Instance of Athens 4952/2010, 4954/2010, unpub.; Single-Member Court of First Instance of Athens 4577/2012, unpub., which dismissed the application itself as inadmissible and did not declare the hearing as inadmissible. The above decisions are incorrect because failure to serve the claim form according to art. 228 CCP does not lead to the inadmissibility of the judicial act; instead it leads to the inadmissibility of the hearing in which case, “lis pendens” is not terminated but maintained while the trial itself continues.

  194. 194.

    Single-Member Court of First Instance of Athens 2585/2011, unpub.

  195. 195.

    See Section 5.2.

  196. 196.

    Foustoukos, DEE Law Review 1999.704.

  197. 197.

    Tsavdaridis, DEE Law Review 2012.541 et seq.

  198. 198.

    See Section 5.3.

  199. 199.

    See Section 4.3.

  200. 200.

    See Section 4.1.

  201. 201.

    [2009] 1 A.C. 1138.

  202. 202.

    See especially St. Dutson, M. Howarth, ‘After West Tankers – Rise of the “Foreign Torpedo”?’ (2009) Arbitration 75, 334; L. Radicati di Brozolo, “Arbitration and the Draft Revised Brussels I Regulation – seeds of home country control and of harmonization?” (2011) J. Priv. Int. L. 7, 423; J.M. Carruthers “The Brussels I Regulation recast” (2011) Scots Law Times 2-3; Z.S. Tang, “Parallel proceedings and anti-arbitration injunction” (2012) J.B.L. 589; N. Andrews, ‘Res judicata. Estoppel in the context of judicial decisions and arbitration awards’ in Kalliopi Makridou and Georgios Diamantopoulos (eds), Issues of estoppel and res judicata in Anglo-American and Greek law (Nomiki Vivliothiki 2013) 50.

  203. 203.

    Art. 29.1, 31. II EU Reg. 1215/2012 (in order to prevent “torpedo actions”).

  204. 204.

    Single-Member Court of First Instance of Kilkis 368/2010, Review of Civil Procedure 2011.370 (note Giannopoulos), which revoked decision 160/2010 by the Single-Member Court of First Instance of Kilkis, Review of Civil Procedure 2010.569, note Vasilakakis. See also Athens Court of Appeal 4356/1989, Arbitration Law Review 1992.935.

  205. 205.

    Art. 249 CCP makes it possible for a civil court to stay proceedings if the diagnosis of the dispute depends on the existence or non-existence of a legal relationship pending in another civil court.

  206. 206.

    Vasilakakis, note under Single-Member Court of First Instance of Kilkis 160/2010.

  207. 207.

    In all cases the Greek courts lack international jurisdiction to review, even incidentally, the validity of a foreign arbitral award, which may be reviewed only by the courts of that country under whose procedural framework the arbitral awards were issued. Supreme Court (plenary session) 11/2009, Archives of Case law 2009.678; Piraeus Court of Appeal 628/2004, Piraeus Case law Review 2004.358; Single-Member Court of First Instance of Kilkis 368/2010, Review of Civil Procedure 2011.370, note Giannopoulos.

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    Kalliopi Makridou

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Makridou, K. (2017). Interpretation and Application of the New York Convention in the Republic of Greece. In: Bermann, G. (eds) Recognition and Enforcement of Foreign Arbitral Awards. Ius Comparatum - Global Studies in Comparative Law, vol 23. Springer, Cham. https://doi.org/10.1007/978-3-319-50915-0_14

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