GREECE Trends and Developments Contributed by: John Dryllerakis, Claire Sergaki and Vasileios Plakoulas, Dryllerakis Law Firm
has acted within the past three years, as an expert for one of the parties (or an affiliate thereof) in an unrelat - ed matter or an arbitrator who has publicly advocated a position on the case (including via social media) are both obliged to disclose said matters to the parties (such cases fall under the updated “Orange List”). Notably, a disclosure obligation also arises in cases where the arbitrator serves as an arbitrator with anoth- er member of the tribunal in an unrelated arbitration. Furthermore, the United Nations Commission on International Trade Law (UNCITRAL) recently issued an updated version of its Code of Conduct for Arbitra - tors in International Investment Dispute Resolution; said code is deemed to be rather innovative by estab - lishing best practices whilst also explicitly posing limi - tations on the “double hatting” practice. While Greece does not have its own code of con - duct for arbitrators or counsel in arbitral proceedings (except for arbitrations conducted under the 2020 Thessaloniki Bar Association Rules), the develop - ments in the aforementioned soft law texts are bound to influence the case law of the domestic courts and tribunals. Recent case law This section examines certain noteworthy judgments issued by Greek courts in the past two years. In its judgments nos 601–604/2023, the 2nd Divi - sion of the Hellenic Council of State reaffirmed the position taken in judgments nos 246–253/2022. The former cases concerned a concession agreement concluded by the Hellenic Republic, which provided for a favourable taxation framework in favour of the Concessionaire and included an arbitration agree - ment. The Hellenic Republic issued VAT assessments against the Concessionaire without considering the latter’s right to deduct VAT, which the Concessionaire successfully challenged before the arbitral tribunal. In the proceedings for the annulment of said tax assess - ments before the administrative courts following the issuance of the favourable arbitral award, the Hellenic Council of State ruled that the concession agreement qualifies as an investment agreement and that arbitral awards rendered therefrom are not binding upon the administrative courts since arbitral tribunals do not
have jurisdiction over investment disputes relating to the interpretation and/or application of EU Law. The Hellenic Court of Auditors in its judgments nos 939–940/2024 upheld that the existence of an arbi - tration clause deprives the Hellenic Court of Auditors of jurisdiction to rule on matters arising from the con - tract, including the legality of administrative penalties. In particular, it held that any dispute relating to the contract (such as the possibility of imposing admin - istrative penalties) should have first been adjudicated by an arbitral tribunal, given that the contract incorpo - rated a mandatory arbitration clause. It further clarified that ruling on the legality of the imposition of penalties does not amount to an excess of powers on behalf of the arbitrators, nor can an excess of power ever be established by mere mistake of law or fact. The Hellenic Court of Auditors concluded that it is, in any case, not the competent court to decide on the exist - ence of excess of power, as such competence lies strictly with the civil courts adjudicating on set-aside applications. Another significant decision, judgment no 1766/2024 of the Athens Three-Member Court of Appeals, ruled on a set-aside application on grounds that, inter alia, the arbitral award violated international public policy due to the misapplication of the res judicata provi - sions. The arbitral tribunal had rejected the claimant’s claims because it perceived itself to be bound by the res judicata of a previous arbitral award. The Athens Three-Member Court of Appeals ruled that no inter - national public policy violation may be established in cases where the tribunal has applied Greek law. In any case, the res judicata provisions do not qualify as international public policy rules as they were laid down primarily for the protection of private rights rather than public interest. Lastly, judgment no 1517/2024 rendered by the Athens Court of Appeals provided some key directions with respect to the interpretation and validity of arbitra - tion clauses. The Hellenic Republic initiated litigation proceedings against its military supply contractor on grounds of tort liability, notwithstanding the existence of an arbitration clause in the public contract at hand. The Athens Court of Appeals ruled that the arbitration agreement encapsulated any and all disputes arising
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