ΔΙΑΙΤΗΣΙΑ


ARBITRATION AT THE ΑΤΗΕNS CHAMBER OF COMMERCE AND THE INTERNATIONAL LEGAL FRAMEWORK.




ΕΙΣΗΓΗΣΗ ΔΗΜΗΤΡΗ ΧΑΤΖΗΜΙΧΑΛΗ ΣΤΟ ΣΥΝΔΕΣΜΟ ΕΜΠΟΡΙΚΟΛΟΓΩΝ ΤΗΣ ΓΙΟΥΚΟΣΛΑΒΙΑΣ


CONTENTS
I. GENERAL INTRODUCTION
II. INTERNATIONAL ARBITRATION
III . COMMERCIAL DISPUTES AND ARBITRATION IN GREECE
A.GENERAL
B.ARBITRATION AT THE ATHENS CHAMBER OF COMMERCE
PRESIDENTIAL DECREE No 31/12-1-1979
1. The permanent arbitration institution- General
2. Organization of the Permanent Institution and it's Secretariate.
3. Appointement of arbitrators
4. Arbitral proceedings.
5. The hearings of the arbitral tribunal.
6. Settlement of the dispute by conciliation.
7. Applicable substantive law.
8. Contents of award and recourse.
9. Costs & Expenses.

IV. SUMMARY
V. BIBLIOGRAPHY

I. GENERAL INTRODUCTION

It's almost a general opinion that arbitration is the most convenient, speediest and cheapest machinery to settle a dispute.
Arbitration proceedings offer marked advantages over court proccedings. They are often cheaper, less dilatory and less formal, they take place in private and no appeal and further appeal is possible.
However there are some people who have objections about this type of proceeding, mostly about the person of the arbitrators and the place where the arbitration is to be held.
It is the general experience that it is easier to obtain agreement on arbitration when the country contract is concluded than when the dispute has arisen, and the aggrieved party has, in the later case no means of compelling the other party to accept arbitration.

II. INTERNATIONAL ARBITRATION
The various national laws on arbitration differ in material aspects.
1. Attemps have been made to devise an international procedure of commercial arbitration e.g. the European Convention providing a Uniform Law on Arbitration, sponsored by the Council of Europe opened for signature on January 20, 1966.
2. A European Convention on International Commercial Arbitration was signed on April 21, 1961 in Geneva and came into force on January 7, 1964.
3. The Convention was complemented by the Agreement relating to the Application of the European Convention on International Commercial Arbitration, signed in Paris on December 17, 1962.
The Convention has been ratified, by 14 countries, amongst them Jugoslavia.
4. Two international agreements have been concluded in Geneva, the Protocol on Arbitration Clauses of 1923 and the Convention on the Execution of Foreign Arbitral Awards of 1927.
Both agreements have been also ratified by a number of countries, and especially the last one amongst the othrer countries by Greece and Jugoslavia.
5. On June 10, 1958 a Convention on the Recognition and Enforcement of Foreign Arbitral Awards was approved by a United Nations Conference at New York.
The New York Convention, which is ratified by Greece but not by Jugoslavia, undoubtdely represents great progress in the field of international arbitration, when compared with the Geneva provisions. The requirement of reciprocity is abandoned by the New York Convention which applies, on principle, to every foreign award.
The most important practical improvement introduced by the New York Convention is that it has severely restricted the grounds on which the courts or other authorities of the country in which a foreign arbitral award is sought to be enfored can re-examine it.
The authorities of the country in which enforcement is sought may, on their own accord, refuse the recognition or enforcement of the foreign award only if they find that:
a) the difference is not capable of settlement by arbitration under the law of that country
b) the recognition or enforcement of the award would be contrary to the public policy of that country.
By these provisions the N.Y Convention has removed the requirement of double exequatur which was a formidable obstacle to the enforcement of foreign arbitral awards.
The E.E.C. Treatly provides in article 220 that the Member States of the European Community shall conclude a convention for the simplification of formalities governing the reciprocal recognition and enforcement of arbitral awards.

III COMMERCIAL DISPUTES AND ARBITRATION IN GREECE.

A. GENERAL

In accordance with Article 902 of the Greek Code of Civil Procedure, permanent arbitration insitutions, can be established at the Chambers of Commerce and Industry, the Stock Exchange, and at Proffesional Organizations.
By virtue of Presidental Decree No 31 of 12th January 1979, has beeen established the Permanent Arbitration Institution at the Athens Chamber of Commerce (A.C.C.I).
Permanent arbitration institutions have been also established at the Chamber of Shipping, by virtue of royal decree No 447/69, at the Chamber of Engineering, presidential decree 723/79 and at the Bar Associations of Athens, Pireus and Thessalonika, by virtue of presidential decree 168/83 and the law 1330/83.
Settlement of commercial disputes is one of the main and most important functions of Chambers of Commerce. This duty consists in offering services and mediation for an amicable settlement and for arbitration.
Greek Act No 184 of 1914 relating to Chambers of Commerce and Industry, provided for the establishment of permanent arbitration institutions at the Chambers of Commerce for the settlement of commercial disputes.
In compliance with the above Act, the Arbitration Rules of the Athens Chamber of Commerce and Industry were published on June 6th 1920 and remained valid till September 16th 1968. On that date all provisions about arbitration of Chambers of Commerce were abolished by virtue of Article 48 of the Introductory Law to the Code of Civil Procedure (Act No 44 of 1967).
The new permanent Arbitration Institution and Rules of the Athens Chamber of Commerce and Industry have been established in accordance with Article 902 of the Code of Civil Procedure which defines the guiding lines for permanent arbitration insitutions, by virtue of Presidental Decree No 31 of 12th January 1979.
At the Athens Chamber of Commerce and Industry (A.C.C.I) is already established, by the Presidential Decree No 31 of 12th January 1979, a permanent arbitration institution for the settlement of commercial disputes.
This arbitration is cosiderably more successful than this one provided ny the Greek Code of Civil and by the Code of Commerce, because it covers all transactions of domestic and international trade, including the private law transactions, without restrictions for parties nationality or domicile.
This arbitration is voluntary and it's proceedings are simple and fast. The parties have the iniative, the proceedings set up by the Decree are applicable only if the parties do not reach an agreement on such questions, or if they remain inactive, or if they adopt a negative attitude.
An arbitrator can never be considered to be the supporter of the party that appointed him. He is an independent and impartial judje who will assist the parties in settling their dispute amicable. If amicable settlement is possible, he will try to find out the truth and to render a fair award.

B.ARBITRATION AT THE ATHENS CHAMBER OF COMMERCE - PRESIDENTIAL DECREE No 31/12-1-1979
1. The permanent arbitration institution- General
A permanent arbitration institution is established at the Athens Chamber of Commerce and Industry (ACCI) for the settlement of commecial disputes.
According to art. 2 any private dispute of commercial nature may, by agreement, be submitted to the above arbitration whether the parties are merchants or not and without taking into consideration nationality or domicile, provided they are able to dispose freely of the subject matter of the dispute.
The arbitration agreement must be in writting.
The document must mention all the data in detail and be signed by all parties.
The labour disputes of art. 663 of the Code of Civil Procedure can not be submitted to arbitration. The arbitration agreement is governed by the provisions of the substantial law govering cotracts.

2. Organization of the Permanent Institution and it's Secretariate.
According to art. 3 a special permanent service for arbitration is establishe at the ACCI and the supervisor gives all necessary information and explanations to whom it may concerns.
According to art. 4 one of the officials of the A.C.C.I performs the duties of the arbitral tribunal.
The secretary keeps the records of the arbitration, prepares all documents related to the arbitral proccedings and signs or initials them, takes care about the respect of time limits, keeps the register and the book in which awards are published and according to par. 3 the Secretary must keep safely all documents that are delivered to him with regard to the arbitration.

3. Appointement of arbitrators

According to art. 8 the ACCI establishes every two years a list of arbitrators.
The persons who can be arbitrators are distinguished for their integrity, morality, qualifications, and experience. They are scientists from all branches as lawyers, judges, professors of Universities, engineers, chemists, chartered accountants etc., so that suitable arbitrators might be appointed according to the kind of the dispute.
Physical persons who are totally or partially incapable, or those who as a result of a criminal Court conviction, have lost their citizen's rights, as well as legal persons, cannot be appointed as arbitrators or chairmen of arbital tribunals.
According to art. 9 the parties to the arbitration agreement may in common revoke the sole arbitrator or the arbitral tribunal.
Besides they may ask to be relieved the arbitrators from their duties.

4. Arbitral proceedings.
According to art. 12 in order to start arbitral proceedings, it is required by all parties.
This request must contain at least the following:
a) name, proffesion and address of the parties and seat in case of company.
b)a short statement of facts.
c)a description of the dispute.
d) the value of the subject of the dispute.
e) the claim.
f) the appointement of a sole arbritrator by each party and of a chairman of common acceptance or, if the parties do not agree about the chairman, mention of that.
g) If a partyor both parties have their domicile or residence at a place other than Athens, election of domicile with a person having his domicile in Athens.
The Secretariate conveys copies of the documents to the other parties, who must reply to the request within 8 days.
It is strictly forbidden to take cognizancd of these documents any other person except the arbitrators, the parties and the lawyers.
According to art. 13 the first hearing of the dispute must take place at least 8 days and at most 20 days from the formation of the arbital tribunal.

5. The hearings of the arbitral tribunal.

According to art. 15 first of all they hearings are not public and the parties have the same rights and duties and the principle of equality is kept.
According to art. 16 If the defendant does not appear or does not justify his absence satisfactory, the case is heard.
In any case the absence is not considered as a tacit acceptance of the claimant' s assertions.

6. Settlement of the dispute by conciliation.

According to art. 17 the arbitrators, before the opening of the hearing but also during the subsequent stages of the proceedings,must try to reach a settlement of the dispute by conciliation.
According to art. 19 the defendant may submit his own claims connected with the case under consideration, provided that his claims have been subjected to the arbitration procedings that have been initiated.
According to art. 22 at the Tribulan discretion may witnesses be heard.
Equally the Tribunal may appoint experts.
But in any case cannot inflict punishements or order compulsory measures. They just may request them by the Justice of Peace who decides if the measures are justified or not.

7. Applicable substantive law.
According to art. 24 the Arbitral Tribunal shall apply Greek substantive law. In international private law disputes, the applicable law is determined according to the Greek conflict of law provisions. The application of public policy legal provisions cannot be excluded by the arbitration agreement.

8. Contents of award and recourse.
According to art. 25 when the proceedings are terminated, the arbitral tribunal confers in order to render the award. Awards are rendered by a majority decision, and made in writing, according to art. 26.
According to art. 28 time limit for rendering the award is 3 months from the day the first hearing was fixed.
According to art. 29 after the award ends the arbitration proceedings.
According to art. 31 If the arbitration agreement does not provide for a recourse the award is res judicata.
According to art. 32 the arbitral award is not subject to any means of recourse. Exceptionally by the arbitration agreement provide that the award may be appealed to other arbitrations.
The recourse must be made within a barring time limit of 20 days from the day the award was delivered to the appealing party.

9. Costs & Expenses.
According to art. 33 the party submitting a request for arbitration to the A.C.C.I prepays the costs of the acci, which are fixed by the special arbitration service of the A.C.C.I, for each case, in proportion to the sum in dispute, within the following limits:
For a claim up to 500.000 drachmae 10%
From 500.000 dr. to 1.000.000 dr. 10% to 7%
From 1.000.000 dr. to 5.000.000 dr. 7% to 3%
From 5.000.000 dr. to 10.000.000 dr. 3% to 2%
Over 10.000.000 dr. 1% to 0.2%
* 1 DEM = 163 drachmae
If the financial conditions change substantially, the A.C.C.I may, following an approval by the Ministry of Commerce increase the percentages of the preceding paragraph. The relevant decision shall be applicable three months after its publication.
According to par. 3 the Arbitral Tribunal, before commencing the hearing of the case, must verify if the costs of arbitration have been paid.
According to art. 34 from the costs of arbitration paid in each case, the ACCI shall keep one third.
The remaining two thirds are paid to the arbitrators as follows. 40% to the chairman and 30% to each of the other arbitrators.
According to art. 35 expenses that may become necessary during the proccedings such as travelling expenses of witnesses or experts etc. will be in charge of the party interested in them and will be prepaid by it.
According to art. 36 the award fixes the costs and expenses of the arbitration.
The costs and expenses in general of the arbitration are charged to the defeated party.
However the arbitrators may, at their discretion charge the costs to both parties.

IV. SUMMARY
Accumulated experience and good organization will allow the arbitration of the Athens Chamber of Commerce and Industry to become the most usual means for settling commercial disputes.

V. BIBLIOGRAPHY
1.The Export Trade - Schmitthoff- 6th edition, page 365..
2. Stein/Jonas/Schlosser, Kommentar zur Zivilprozeβordnung
3. Robert, L' arbitrage
4. Robert\ Moreau, Encyclopedie Dalloz, procedure civile, Arbitrage, 336
5. Calavros, Das UNCITRAL Modellgesetzuber Lie internationale Handelesschiedsgerichts backeit, 1988
6. Domke, The Law and Practice of Commercial Arbitration, 1968
7. Level, l' amiable composition, Revue de l' Arbitrage, 1980, 651
8. Fouchard, L' arbitrage commercial international, 1964, 18
9. Fragistas, Arbitrage etranger et arbitrage international en droit prive, Revue cririque de droit international 1960, 5
10. Klein, L' arbitrage international de droit prive.
11. Foustoucos, L' arbitrage -interne et international- en droit prive hellenique, 1976, 218.
12. Motulsky, Ecrits (etudes et notes sur l' arbitrage, 384.
13. Klein, Considerations sur l' arbitrage en droit international prive, 105.
14. Bernhard Wisleitner
15. E. J. Cohn, The rules of arbitration of the international Chamber of Commerce, 1965.
16. F. Eisemann Arbitration under the International Chamber of Commerce Rules, 1966.
17. Clive Schmitthoff, Oceana, 1974, International Commercial Arbitration.