GREECE Trends and Developments Contributed by: John C Dryllerakis, Claire Sergaki and Vasileios Plakoulas, Dryllerakis Law Firm
Sanctions-Related Arbitration The surge in EU sanctions against Russia, the expan - sion of US trade sanctions against states such as Iran and Iraq and the continuation of economic measures against the Republic of China and Cuba are now affecting the Greek international arbitration landscape. Greek businesses and investors involved in cross-bor - der transactions are encountering challenges due to the complex web of sanctions regimes. Furthermore, the involvement of a sanctioned person as a party in international arbitration can introduce significant com - plications. Restrictions on financial transactions and banking operations can directly hinder the payment of arbitration costs and arbitrators’ fees. Arbitrators themselves may be required to obtain authorisation from the competent regulatory bodies before accept - ing their appointment to avoid exposure to second - ary sanctions. Similar compliance hurdles exist for arbitral institutions, which must secure the necessary approvals to manage proceedings involving sanc - tioned parties. Even lawyers representing clients sub - ject to sanctions face a unique set of hurdles, as their legal services may fall within the scope of regulatory restrictions and could require prior authorisation from competent authorities. Securing such permissions is essential not only to ensure that the sanctioned par - ty maintains effective access to justice, but also to uphold the fundamental principle of procedural fair - ness and equality between the parties. In many instances, sanctions themselves become the central issue in disputes brought before arbitral tribu - nals. International case law varies in its approach to whether such matters can be resolved through arbi - tration. Another complex legal question concerns the impact of sanctions on contractual performance. Spe - cifically, there is ongoing debate over whether sanc - tions-related non-performance may be interpreted as impossibility of performance or as an unforeseen change of circumstances or, lastly, as force majeure, each of which could potentially justify the suspension of contractual obligations. The Standards of Independence and Impartiality One of the primary reasons Greek parties favour arbi - tration is their ability to select arbitrators. This advan - tage, however, could be seen as a drawback if it does
not adhere strictly to the fundamental principles of arbitrator impartiality and independence. The recent surge in social media usage, easy cross-cultural com - munication and the proliferation of various forms of media and entertainment have introduced numer - ous challenges concerning the maintenance of these principles. The recent wave of disqualification appli - cations against party-appointed arbitrators provides strong evidence in this regard, highlighting how arbi - tral parties have become ever more attuned to even subtle signs of bias. To somewhat regulate said matters and provide general guidance, while also ensuring the integrity of arbitration as a means of dispute resolution, the International Bar Association (IBA) recently updated their Guidelines on Conflicts of Interest in International Arbitration and incorporated some notable amend - ments. For instance, a mere relationship via social media of two persons (ie, an arbitrator and a party’s counsel) shall not be deemed to create any conflict of interest (and is thus categorised under the updated “Green List”). However, an arbitrator who currently serves or has acted within the past three years, as an expert for one of the parties (or an affiliate thereof) in an unrelated 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 falling under the updated “Orange List”). Notably, a disclosure obligation also arises in cases where the arbitrator serves as an arbitrator with another member of the tribunal in an unrelated arbi- tration. 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 rather innovative for establishing best practices whilst also explicitly imposing limita - tions 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), developments in the aforementioned soft law texts are bound to influ - ence the case law of domestic courts and tribunals.
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