Arbitration News – New ruling on implied waiver of setting-aside proceedings
(Article by Dr. A. Tsavdaridis, published in the Arbitration Newsletter of the ILO on September 3, 2015)
The principle that a valid waiver of setting–aside proceedings before an award is rendered can be
implied when it is contained in an agreement ratified by law does not apply to the Greek state, which
is subject to additional requirements.
Background
Under Greek domestic arbitration law, a waiver of setting–aside proceedings is null and void if it takes
place before an award is issued. However, in arbitration agreements ratified by law (eg, in some
state contracts), such a waiver is valid as it is considered a special legislative provision.
“Implied waiver of setting–aside proceedings” reported on an appeal court judgment holding that, in
this context, an implied waiver of setting–aside proceedings has the same effect as an express
waiver. In a similar case the Supreme Court qualified the appellate ruling with respect to the Greek
state.
Facts
In 2007 the Greek government entered into a concession agreement with the concessionaire and a
consortium of contractors for the construction of part of the motorway connecting Athens and
Thessaloniki. The parties agreed that all disputes or differences of a non–technical nature would be
resolved through arbitration under the International Chamber of Commerce Rules of Arbitration, as
modified by the agreement. The parties also agreed that:
“the arbitral award shall be final and irrevocable, not being subject to any ordinary or
extraordinary legal means, and constitute an enforceable title without the need to be so
declared by state courts, the parties being bound to comply forthwith with its rulings.“
The parties also agreed that any award should be rendered within four months of signing of the terms
of reference. The concession agreement was ratified by Law 3605/2007 and its provisions acquired
legal force.
A dispute subsequently arose between the government and the concessionaire. After an arbitral
award was rendered, the state filed a motion to set aside the award. The respondent claimed that the
parties had effectively agreed to waive setting–aside proceedings
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