LUXEMBOURG Law and Practice Contributed by: Fabio Trevisan and Laure-Hélène Gaicio-Fievez, BSP
Nevertheless, there are provisions and rules of law which, because of their general applicability, have the effect of restricting the scope of rights and/or matters that may be subject to arbitra- tion. Parties have the right to choose the number of arbitrators, their appointment or their removal and everything that concerns the arbitration pro- cess. This includes selecting the location of arbi- tration, the language, the applicable law, and the procedural rules, which can be chosen directly or by reference to standard arbitration rules. By default, three arbitrators are chosen; they have the power to determine whether they have the authority to hear the dispute, based on the existence, validity, and extent of the arbitration agreement. In addition, unless otherwise agreed upon by the parties, the arbitrators can issue interim or protective measures. In the event of difficulties that cannot be resolved by the parties or the arbitral tribunal, the president of the relevant district court acts as a supervising judge to settle such disputes. 13.2 Subject Matters Not Referred to Arbitration Article 1224 of the NCPC lists a series of matters that cannot be submitted to arbitration. Article 1224(2) of the NCPC provides for a series of matters for which arbitration is prohibited. These subjects mainly concern matters of per- sonal status, capacity, and family law. In addition, Article 1225 of the NCPC states that disputes between professionals and consumers, employers and employees and relating to resi- dential leases cannot be submitted to arbitra- tion.
When jurisdiction is exclusively granted to a court, in the event of a conflict, the parties may not decide to submit their dispute to arbitration. 13.3 Circumstances to Challenge an Arbitral Award According to Article 1236 of the NCPC, an award cannot be subject to opposition, appeal or cas- sation. An award may be contested by way of annulment (it can also be revised in limited cas- es) before the Court of Appeal. In particular, an annulment may be pronounced if the award is contrary to public order, was obtained by fraud or if there has been a viola - tion of the rights of the defence. 13.4 Procedure for Enforcing Domestic and Foreign Arbitration Article 1233 of the NCPC provides that domestic arbitral awards shall be enforceable by an exe- quatur order of the president of the district court within whose jurisdiction the award was made. In this context, the judge will ascertain that such award is in compliance with Luxembourg public order. As for foreign arbitral awards, they are rendered enforceable by the president of the district court (to which an application is submitted), who shall observe in this respect the rules applicable to the enforcement of foreign judgments in accordance with the relevant convention on the recognition and enforcement of such judgments (Article 1245 of the NCPC).
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