LUXEMBOURG Trends and Developments Contributed by: Emilie Waty and Kloris Vjerdha, KLEYR_GRASSO
es and law professors, who convened on a regular basis between 2013 and 2017. The 2023 reform was designed to position Luxembourg as a preferred arbi - tral seat by capitalising on its inherent multicultural as well as multilingual legal background and proceeded to introduce a more liberal approach when dealing with arbitration. As the result of this in-depth comparative legal analy - sis, Luxembourg has selectively incorporated the most effective elements from various jurisdictions, ultimately adopting a unique and forward-looking arbitration model. General highlights of the 2023 reform The New Arbitration Law has clarified several aspects that govern arbitration proceedings in Luxembourg. Firstly, the 2023 arbitration legislation affirms that all natural persons may be parties to arbitration proceed - ings, provided that they have the legal capacity to dispose of their rights. With respect to legal entities, the law likewise clarifies that their participation in the arbitration proceedings is permitted as long as they are represented by a natural person. Moreover, the New Arbitration Law provides that an arbitration agreement may take the form of either an arbitration clause ( clause compromissoire ) con - cluded prior to any dispute, or a separate arbitration agreement ( compromis ) agreed upon subsequent to the emergence of a dispute, without imposing any additional formal requirements. This implies that the agreement may, in principle, also be concluded orally, thereby demonstrating the flexible approach that was adopted regarding the validity of arbitration agree - ments that are first and foremost based on the parties’ mutual consent. In addition, the law also recognises the principle of separability of the arbitration clause, which means that its validity is not affected by the invalidity of the overall contract. Furthermore, drawing inspiration from Article 1706 of the Belgian Judicial Code, Article 1231-12 of the New Code of Civil Procedure (NCCP) allows third parties to intervene in arbitral proceedings. The same provision also authorises the parties to invite a third party to participate in the arbitration process, provided that an
arbitration agreement subsists between the third party and the existing parties to the arbitration and subject to the arbitral tribunal’s approval. In addition, the New Arbitration Law, in an effort to protect “weaker parties”, expressly excludes certain subject matters from arbitration, such as disputes raised between professionals and consumers, and between employers and employees, as well as con - flicts relating to lease agreements. Most importantly, the law expressly excludes any dispute having as its subject the status and capacity of persons from being submitted to arbitration. The newly enacted legislation has also instituted a swift procedural framework whereby the duration of the proceedings is, in principle, limited to a maximum period of six months. Lastly, the New Arbitration Law affirms the confiden - tiality of arbitration proceedings, unless the parties agree otherwise, thereby strengthening the core prin - ciple of privacy which underpins the arbitration pro - cess. The institution of the supporting judge (juge d’appui) Undoubtedly, the most prominent innovation intro - duced by the 2023 arbitration reform is the establish - ment of a state-court supporting judge ( juge d ’ appui ), as provided under Articles 1229 and 1230 of the NCCP, a mechanism drawing influence from French arbitration law as well as from general principles of the United Nations Commission on International Trade Law model law commonly known as the UNCITRAL Model Law. According to Article 1229 of the NCCP, which sets the conditions for the international jurisdiction of the Luxembourg judge, the President of the District Court sitting in summary matters ( President du Tri- bunal d ’ arrondissement siégeant comme en matière de référé ) is vested with the ability to intervene in the arbitration proceedings in the following instances: • where Luxembourg has been designated as the seat of arbitration;
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