MONACO Law and Practice Contributed by: Stephan Pastor, Emeline Elbaz-Mondeux and Xavier Widawski, CMS Monaco
13.2 Subject Matters Not Referred to Arbitration In civil and commercial matters, any person may agree to submit to arbitration the rights that they are free to dispose. In commercial matters, they may also agree at the time of contracting to submit to arbitration all disputes arising between them. Disputes relating to the following matters cannot be referred to arbitration: • donations and legacies; • maintenance; • any kind of dispute that must be reported to the public prosecutor (including public order issues). 13.3 Circumstances to Challenge an Arbitral Award Arbitration awards are not subject to opposition nor to request for review. Appeal Arbitral awards can be subject to appeal. • housing and clothing; • separation of spouses; • questions of status; or In the event of arbitration by amiable composition in accordance with the arbitration agreement, the par- ties are then presumed to have waived their right to appeal. However, this cannot take effect in the event of violations of rules of public policy or of the rights of the defence ( Cour de Revision , 8 May 1976, IDBD 25798). Application for Withdrawal (Rétractation) An arbitration award can be subject to application for withdrawal before the First Instance Tribunal if: • there has been personal fraud ( dol personnel ); • it has been pronounced on things not requested;
debtors engaged in commercial or craft activities who are facing established or anticipated legal, economic or financial difficulties, provided they have not been insolvent for more than 15 days. The conciliation procedure is initiated by the President of the Court of First Instance, who appoints a con- ciliator. The conciliator’s role is to assist in reaching an amicable agreement between the debtor and their principal creditors, as well as – if necessary – their regular contracting partners, with the aim of resolving the company’s difficulties. 12.2 ADR Within the Legal System See 12.1 Views of ADR Within the Country . 12.3 ADR Institutions See 12.1 Views of ADR Within the Country . 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration The Code of Civil Procedure contains rules for local arbitration, though they are not often used. An arbitration agreement may be concluded before the arbitrators are chosen, or in a deed drawn up before a notary or under private signature. It should specify the issues covered by it and the names of the arbitrators. The number of arbitrators must be an odd number. During arbitration, the arbitrators cannot be removed, except by unanimous agreement of the parties. In the course of the proceedings, the parties and the arbitrators should observe the time limits and forms laid down for the courts, unless the parties have agreed otherwise in the arbitration agreement. Each party shall be required to submit its defence and evidence at least 15 days before the expiry of the time limit of the arbitration agreement, and the arbitrators shall rule on what has been submitted. The arbitra- tors shall decide according to the rules of law, unless the arbitration agreement requires them to decide as amiable compositeurs.
• more was awarded than requested; • it does not address one of the claims; • it contains contradictory provisions;
• it is contrary to an earlier decision given between the same parties, on the same subject matter and the same cause of action;
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