This is the second article in Clyde & Co’s international arbitration series covering the possibility of enforcing arbitral awards that have been set aside by a court in the seat of arbitration. In this piece, senior associate Styliani Ampatzi from our Dusseldorf office considers this from a Greek law perspective.
The enforcement of arbitral awards that have been set aside in the country of origin remains a controversial question in international arbitration. The complexity of the issue is highlighted by the fact that a number of different relevant theories have been developed and there are significant differences in the way in which each country approaches the problem. Up until now, the Greek courts have not been confronted with the issue to the extent that foreign courts have, for example in France, UK, the USA or the Netherlands. However, it seems that the Greek law does not prohibit the enforcement of foreign arbitral awards that have been set aside in their country of origin.
If a Greek court decided not to enforce a foreign arbitral award because it has been set aside in the country of origin, this would mean that it had followed the decision of the seat state court regarding the validity of the award. But on what basis should a decision of a seat state court have effect in a foreign state? In other words, should Greece really bow to the country of origin when determining the validity of an award?
Greece is a contracting state to the New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York of 10 June 1958 (“New York Convention”). In Greek legal commentary, the issue of the enforceability of awards that have been set aside is discussed in connection with Article V (l)(e) of the New York Convention. In accordance with that provision, a court may refuse recognition and enforcement of an award that has been set aside in its country of origin, but it does not have to do so. Therefore, the enforcement state (in this case Greece) has to make a decision regarding the legal value attached to the state of origin decision to set aside the foreign award. If it follows that decision, the arbitral award does not have effect and cannot be recognised. However, if Greece, as the state of recognition, does not recognise the foreign setting aside decision, the foreign arbitral award may be considered enforceable provided that it complies with Article V of the New York Convention.
Against this backdrop, and in the absence of any relevant case law from the Greek courts, Greek legal commentary focuses on analysis of the two main approaches that have been developed internationally, citing foreign case law. One approach is to accept the international binding nature of the setting aside decision of the courts of the state of origin. The other is not to accept that decision as binding in any way, and to consider recognition as a procedure independent of the issue of setting aside.
While the first approach has the advantage of simplicity, it has been the subject of some criticism in Greek legal commentary on the basis that it provides no protection against a blatantly biased decision of the state of origin court or a decision that is subject to unfair national peculiarities of that state.
The second approach can be described as much more liberal. It amounts to saying that no state should have the final say on the validity of the award. Instead, each enforcement court should be able to decide independently, and in isolation, the question of the validity of the award, regardless of what the courts of the seat of arbitration may think. Whether or not this is the better approach, it does have the disadvantage, perhaps, of favouring a form of “forum shopping”.
A number of theories have been proposed which try to combine elements of each approach. The common starting point of these theories is the possibility, in principle, of recognising a setting aside decision of the courts of the seat of arbitration, but only under certain conditions and not automatically. In other words, the setting aside decision is neither ignored completely nor followed blindly. In effect, the stage of recognition of the foreign arbitral award is preceded by a separate stage of recognition (or not) of the foreign setting aside decision. In terms of methodology and reasoning, this initial stage is similar to that of the recognition of a foreign court judgment.
As already mentioned, there is as yet no case law dealing with the issue. Nevertheless, Areios Pagos, (the Supreme Civil and Criminal Court of Greece) has held that the formalities of domestic law regarding the binding result of an arbitral award, in which the state participates, do not apply in international trade (Areios Pagos 8/1996). This may indicate that, in future, Areios Pagos would be reluctant to accept the setting aside of a foreign arbitral award on the basis of national "peculiarities and formalities" of the courts at the seat of arbitration.
In summary, Greek law does not contain any provisions that explicitly prevent the enforcement of arbitral awards that have been set aside in the seat of arbitration. However, as long as the Greek state courts do not deal directly with the issue, the position under Greek law remains ambiguous. That said, certain minor indications given by Areios Pagos (Greece’s Supreme Court) and legal commentary both suggest that is somewhat unlikely that the Greek courts would adopt an absolution position on the issue, once they are confronted with it. Instead, they would most likely try to find some middle ground between the two basic approaches to the problem.
This series will continue next week with the English law position on enforcing arbitral awards that have been set aside.