1. What are the different types of dispute resolution procedures in case of a commercial dispute?
An amicable solution is often preferable. However, an amicable solution is not always possible and legal proceedings may then be unavoidable. In case of a commercial dispute (for clarity’s sake it shall be mentioned that for this Q&A, such disputes are considered not encompassing bankruptcy cases, disputes over commercial lease agreements and disputes for which a payment order is issued), the claimant has different options when it comes to proceedings.
In commercial disputes, parties often choose for (a) judicial proceedings on the merits and provided that the parties have the power to dispose of the subject matter of the dispute, (b) arbitration or (c) mediation.
As regards judicial proceedings, almost all commercial disputes are heard under the so-called ordinary procedure, which follows essentially a written procedure. Cases based on credit titles – securities, such as payment orders or bills of exchanged are heard under the so-called special procedure under which the proceedings conducted entail also an oral hearing of the case (unless both parties mutually agree that the oral proceeding is not conducted).
Even if judicial proceedings are followed, it was enacted for the first time by Law 4640/2019 that for all disputes, the claimant’s lawyer is obliged to inform in written his client before the lawsuit is lodged, on the possibility of resolving the dispute by recourse to mediation. For disputes over claims of higher value, i.e. worth more than 30.000,00 EUR that are heard under the ordinary procedure (which fall into the competence of the Single-Member Court of First Instance and for a value higher than 250.000,00 EUR to that of the Multi-Member Court of First Instance), then further to the abovementioned duty of information, it is obligatory that at least one initial mediation session takes place with an accredited mediator to explore the possibility of resolving the dispute by meditation.
Αs regards arbitration, there is a distinction between national and international commercial arbitration. In the former the respective provisions of the Greek Civil Procedure Code apply whereas in the latter, Law 2735/1999 applies (which is largely based on the UNCITRAL Model Law on International Commercial Arbitration). It shall be mentioned also that there are forums that provide for sector specific arbitration that may relate to commercial matters as well (e.g. the arbitration procedure provided within the Greek regulatory authority for energy).
Mediation may be opted for by the parties and in the cases hereinabove mentioned, is obligatory to conduct at least one mediation session. Should the parties reach a settlement agreement, an act regarding the settlement is submitted by the competent Court (before which the court action is pending or would be filed) and thereafter that settlement agreement is directly enforceable.
2. What is the working language of the different dispute resolution procedures?
Proceedings on the merits
The working language in proceedings on the merits is Greek. However, supporting documents submitted in court pleadings in other languages are allowed, provided that these documents are accompanied by their official translation in the Greek language. Also, documents issued by public authorities (including notarial documents) in foreign countries must bear the seal of the Hague Convention (Apostille), without prejudice to those documents issued in EU member states that are recognized directly under EU law without the need to bear the Apostille seal.
Arbitration & Meditation
The working language in arbitration and mediation is determined by the parties’ agreement and in the absence of which by the arbitrator(s)/arbitral tribunal and the mediator(s) order respectively.
3. When is the relevant body to take cognisance of the dispute?
Proceedings on the merits
In principle, the competent Court of the defendant’s place of residence (in terms of proximity) is competent to take cognisance of the dispute. Specifically, as regards disputes between companies and their shareholders/partners or between shareholders/partners, then the Court of the company’s seat is exclusively competent to hear the case. Also, as regards disputes over contracts and tort, the Court of the place where the contract was concluded or where the parties had to fulfil their contractual obligation in the first case and the Court where the harmful event took place or will take place in the second case, are also competent to hear the case. The parties may agree upon different jurisdiction.
Arbitration & Meditation
The body competent to take cognise of the dispute is provided in the arbitration and the mediation agreement respectively and in the absence of which is provided by the applicable law of the forum. The place of arbitration is determined by agreement of the parties, or failing such agreement, as determined by the arbitrator(s)/arbitral tribunal and the mediator(s) respectively.
4. Which law is applicable to the different dispute resolution procedures?
Proceedings on the merits
As regards to the law applicable to the procedure, Courts apply the law of the forum, i.e. Greek law. As regards the substantive law of the dispute, Courts apply the applicable law which is determined pursuant to EU and Greek law (choice of law agreements are acceptable with the exceptions set under EU and Greek law), including also international conventions, multilateral and bilateral, which Greece has signed and which, from the moment of their ratification by law, are valid as Greek domestic law.
Arbitration & Meditation
Same approach applies to arbitration and mediation as well.
5. Does the judge have specific knowledge of the market?
Proceedings on the merits
The judges in proceedings on the merits usually have no specific knowledge of the market in which the parties in dispute operate. There are no sector specific Courts established. That can be seen as a disadvantage, particularly in cases where some market knowledge is preferable.
Arbitration
The arbitral tribunal always consists of an uneven number of arbitrators. The tribunal may also consist of a sole arbitrator. The arbitrator or arbitrators will be in most cases appointed by the parties. Therefore, it is certainly possible that the tribunal consists of arbitrators with specific knowledge of the market in which the parties in dispute operate. As aforementioned, there are forums that provide for sector specific arbitration that may relate to commercial matters as well (e.g. the arbitration procedure provided within the Greek regulatory authority for energy) and the arbitrators provided within such forums enjoy specific market knowledge.
Mediation
Same approach as with arbitration, applies to the procedure of mediation as well.
6. Are the procedures and the rulings confidential?
Proceedings on the merits
In principle, the hearing is in public. However, the Court may direct that (part of) the hearing be held in private or that only certain persons are allowed to attend the hearing. The judgement is given in public. In practice it is difficult for third parties to gain access to the Court’s ruling unless they request for a copy from the issuing Court, as far as they establish legitimate interest or if it is published in legal sources (in the latter case redacted).
Arbitration & Mediation
In principle, mediation or arbitration proceedings are private and confidential. This is often seen as an advantage of such proceedings, as especially in international commercial disputes parties are not eager for the contents of the dispute to become public.
7. What are the costs of the different dispute resolution procedures?
Proceedings on the merits
Court fees differentiate depending on the competent Court that the case is heard, the procedure that is followed (ordinary vs special procedure) as well as the amount of the claim.
Arbitration & Mediation
The costs for arbitration and mediation proceedings vary and depend on e.g., the form of arbitration, arbitrator(s) appointed, the number of arbitrators and the amount of the claim. The same applies for mediation too, although its cost is usually lower than that of an arbitration.
8. Can the losing party be ordered to pay the costs of the proceedings?
Proceedings on the merits
In proceedings on the merits, the judge(s) can order the unsuccessful party to bear (part of) the costs of the proceedings. These costs consist of legal fees and also court fees.
Arbitration
The same applies for arbitration proceedings as well.
Mediation
In mediation, parties can make agreements with respect to the allocation of costs of proceedings, though, usually are shared equally between them.
9. What is the average lead time of the different dispute resolution proceedings?
Proceedings on the merits
Proceedings on the merits have lead time of (at least) 18 to 24 months for a first instance decision and another 12 months for a second instance decision. However, Courts are dealing with (substantial) backlogs, which usually results in longer lead time.
Arbitration & Mediation
In general, an arbitration and a mediation procedure can be finalized in a relatively short period of time.
10. Is the judgment consigned in other EU member states and can it be enforced there? And outside the EU?
Court decisions
Greek Courts’ enforceable judgments are enforceable throughout the European Union without any intermediary procedure (‘exequatur’).
Enforceability of a Greek Court enforceable judgement outside the EU is governed by general private international law in the jurisdiction where enforcement is sought and international conventions or bilateral agreements between the relative states.
Arbitration awards
Arbitration awards are enforceable in most countries through the application of bilateral agreements between states, then though the New York Arbitration Convention and in the absence of the latter under private international law provisions of the state where enforcement is concerned.
Mediation awards
As regards enforcement of mediation awards, this is a more complicated exercise and depends on the private international rules applied by the forum where enforcement is sought (Greece is not a Party to either the United Nations Convention on International Settlement Agreements Resulting from Mediation or the UNCITRAL Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation).