LUXEMBOURG Law and Practice Contributed by: Emilie Waty and Kloris Vjerdha, KLEYR_GRASSO
The reform introduced significant innovations aimed at enhancing the efficiency of arbitral proceedings. Among other things, the new text introduces the role of the supporting judge (see 1.4 National Courts ) and creates a swift legal framework where the maximum duration of the arbitral proceedings is set, in principle, at six months.
Lastly, Article 1226 of the NCCP expressly provides that the commencement of insolvency proceedings does not affect the validity of arbitration agreements irrespective of whether those agreements were con - cluded prior to or following the commencement of such proceedings. Nonetheless, disputes concerning the conduct or administration of the insolvency proceedings them - selves may not be referred to arbitration. 3.3 National Courts’ Approach State courts in Luxembourg respect the principle of party autonomy and apply the law chosen by the par - ties in their arbitration agreement. In the absence of such choice of law, the courts will apply the law they consider most appropriate in view of the circumstanc - es of the case, taking into account relevant connect - ing factors (Article 1231 of the NCCP). In accordance with well-established case law on the matter, national courts have consistently recognised the validity of, and given effect to, arbitration agree - ments. This reflects Luxembourg’s status as a jurisdic - tion that is supportive of international practices as well as its commitment to effectively integrating arbitration into its legal system. Accordingly, national courts will decline jurisdic - tion over a dispute that falls within a valid arbitration agreement, save in limited circumstances where the agreement is null and void due to the non-arbitrable nature of the dispute, or if it is manifestly null and void for any other reason determined by the court. Where a valid arbitration clause exists, a defendant’s failure to raise an objection to the state court’s juris - diction at the commencement of the proceedings shall be regarded as a tacit waiver of the arbitration agree - ment. It is for this reason that a party wishing to raise an objection with respect to the court’s jurisdiction must do so at the very outset of the proceedings – ie, in limine litis (see 5.5 Breach of Arbitration Agree- ment ). 3.4 Validity The Luxembourg Arbitration Law expressly recog - nises the separability of arbitration agreements, as
3. The Arbitration Agreement 3.1 Enforceability
In accordance with Article 1227 of the NCCP, the deci - sion of parties to submit a dispute to arbitration is formalised in an arbitration agreement that may be concluded in the form of either an arbitration clause ( clause compromissoire ) concluded prior to any dis - pute, or a separate arbitration agreement ( compro- mis ) agreed upon subsequent to the emergence of the dispute. There are no specific requirements that are imposed with respect to the form of such agreements, which may therefore be made verbally. In this respect, the LAA regularly holds seminars aimed at raising awareness among practitioners and schol - ars regarding the essential elements to be included in arbitration clauses, with a view to ensuring clarity and minimising the risk of future disputes or procedural uncertainties relating thereto. 3.2 Arbitrability Under the Luxembourg Arbitration Law, the majority of civil and commercial matters may be validly referred to arbitration provided that they concern rights that are at a person’s free disposition. In particular, pursuant to Article 1224 of the NCCP, disputes relating to the status and legal capacity of persons as well as matters concerning missing per - sons are excluded from the scope of arbitration. Moreover, Article 1225 of the NCCP establishes that disputes pertaining to lease agreements, disputes between employers and employees, and disputes arising between professionals and consumers are not subject to arbitration.
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