LUXEMBOURG Trends and Developments Contributed by: Emilie Waty and Kloris Vjerdha, KLEYR_GRASSO
Interim, conservatory and investigative measures The New Arbitration Law addresses a formerly ambig - uous area that concerned the parties’ right to seek interim, conservatory and/or investigative measures before either the arbitral tribunal or state courts. Inspired by French and Belgian law, Article 1231-9 of the NCCP provides that arbitral tribunals have the authority, unless the parties have agreed otherwise, to order interim and/or conservatory measures when deemed necessary. Article 1227-4 of the NCCP indi - cates, however, that where the arbitral tribunal has not yet been constituted or in instances where the arbitral tribunal is unable to grant the requested relief, a party may seek such relief from a state court. There is, however, an exception in the arbitral tribunal’s power to grant interim measures that concern attach - ment proceedings. The New Arbitration Law provides, in this respect, that domestic courts are solely vested with the power to grant attachment orders. It should also be noted that, in the event that it is sub - sequently decided that the interim measures should not have been granted, the New Arbitration Law pro - vides for the party that applied for interim measures to be held responsible and ultimately bear any costs or damages related thereto. The competence-competence principle The New Arbitration Law further codifies in Article 1227-2 of the NCCP the positive aspect of the princi - ple known as competence-competence, pursuant to which the arbitral tribunal is competent to decide on its own jurisdiction, including on questions regarding the existence and/or validity of the arbitration agree - ment. Nonetheless, Luxembourg, influenced by the Swiss approach to this matter, also provides in Article 1227- 3 of the NCCP for the negative implications of the competence-competence principle by stating that state courts are not prevented from entering a deci - sion on the issue of jurisdiction in cases where the arbitration agreement is null and void due to the non- arbitrable nature of the dispute or where the agree - ment is manifestly null and inapplicable for any other reason.
• where the parties have agreed to conduct their arbitration proceedings in accordance with Luxem - bourg procedural rules; • where the parties have expressly agreed that Luxembourg national courts shall be competent to hear any disputes arising from the arbitration proceedings; or • where there exists a significant link between the dispute and Luxembourg. This is a key addition to Luxembourg arbitration law, which has continued to adopt a non-interventionist approach, while ensuring that the state judge sup - ports the arbitration proceedings. Indeed, the sup - porting judge’s function is not to review the merits of the case but rather to assist the parties in specific situations that could potentially slow down or create deadlocks in the course of the arbitration process. Accordingly, the supporting judge seized by way of application ( requête ) may intervene, at the request of either a party, the arbitral tribunal or one of its mem - bers, in an auxiliary role and limited to circumstances expressly provided by law. As such, the supporting judge may: • resolve disputes concerning the appointment and/ or recusal of arbitrators in cases where the parties fail to agree as well as in the absence of an admin - istrative authority; • order the production or disclosure of documents or evidence held by third parties; and • extend the time limit for the rendering of the arbitral award in circumstances where no arbitral institution is entrusted with that authority. It should further be noted that the supporting judge is always competent in cases where one of the parties may be exposed to a risk of denial of justice, thereby serving as a safeguard to ensure the equitable con - duct of the proceedings. As a result, the institution of the supporting judge is pivotal in ensuring a more effective procedural envi - ronment for the parties while being strictly limited and foreseen by law.
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