Dimitra K. Triantafyllou
ALTERNATIVE DISPUTE RESOLUTION - MEDIATION SHIPPING DISPUTES RESOLUTIONUseful insights of the Greek
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Introduction
When you are doing business in Greece you can rely on a well regulated two-track Alternative Dispute Resolution mechanism that delivers services both in the Court-connected as well as in the outside of the Court scheme. The Greek legislation has some special features and features you need to be aware of to ensure that you can make most out of what these procedures can offer you.
It is essential to be taken into consideration that the Greek legislative authorities at present elaborate several amendments to the Greek Code of Civil Procedure (CCP) aiming to optimize ‘Access to Justice’ and inter alia to introduce judicial mediation in the Court-connected scheme. An updated version of the present chapter incorporating the relevant amended legislation is to be posted in due time at the publisher’s Website.
What forms of Alternative Dispute Resolution are regulated by Greek legislation?
There are specific dispositions in Greek Law that regulate several ADR processes, such as Conciliation, Judicial/Court-Settlement and Mediation for resolving disputes in an amicable, cost-effective as well as time-effective way.
When and how does a Conciliation attempt take place?
According to the provisions of the CCP (Article 214A of CCP), after the occurrence of lis pendens and until a final decision is reached, litigants may attempt to reconcile through negotiation efforts regardless of the standing stage of the trial and by acting out of its proceedings with or without the engagement of a third person.
What follows if negotiation efforts succeed and result to an agreement?
The Minutes of the agreement should be recorded in writing and undersigned. A litigant can unilaterally submit the original undersigned Minutes to be ratified by the judge or presiding judge before whom the case is pending. Ratification is given provided that the judge ascertains that: a) the dispute qualifies for settlement by means of a compromise, b) Minutes have been lawfully undersigned and c) the nature of the right which was acknowledged, as well as the amount of the consideration due and the terms of its fulfillment clearly arise out of submitted Minutes. Following the ratification process and depending on the nature of the claim Minutes accordingly constitute an enforceable title or merely evidence of entitlement and result in abolition of proceedings.
What kinds of disputes are addressed through the Judicial/Court-Settlement and how is it conducted?
Disputes of private law nature that are qualified for settlement by means of a
compromise and that are heard with all/both parties present can be resolved through
ALTERNATIVE DISPUTE
RESOLUTION - MEDIATION
Dimitra K. Triantafyllou, Attorney at Law, cand. LL.M, Accredited Civil, Commercial & Family Mediator, JAMS Foundation Weinstein International Fellow (2011)
a Judicial/Court-Settlement. This is a Court-based Settlement procedure that is initiated and facilitated by the sitting Judge/s and is specifically regulated and provided for all Court hearings under the provisions of the Code of Civil Procedure (article 233 of CCP). This procedure can be initiated after the commencement of the hearing of the case and at every stage of the trial until a final decision is reached. The attempt for a settlement can be continued at a subsequent day and at another place within the competent Court’s premises or it can be adjourned restrictively, only once, and for the forthwith next Court’s hearing before the same synthesis.
According to another disposition of CCP (Article 208) Magistrate Judges at all Courts of Peace have the duty to attempt settlement before the first hearing of every case. Furthermore, they are entitled to refer the case to another Magistrate, even from another prefecture, if they believe that this would be appropriate for the likelihood of a successful resolution.
What if the Judicial/Court-Settlement does not succeed? Does it affect the process?
If the attempt is unsuccessful, CCP provisions dictate that this event has no effect to the trial’s outcome and all judicial remarks and proposals, as well as parties’ positions and recessions expressed for the sake of the attempt, are disregarded by the court while making their decision.
Is there any form of Court-connected facilitated amicable dispute resolution process prior to litigation?
There is a specific disposition by the Code of Civil Procedure (article 209 et seq.), that provides interested parties with the possibility, prior to bringing an action before the rule of Court, to submit an application before a Magistrate Judge of the competent Court with local jurisdiction, requesting their conciliatory intervention, not only in cases being of their ratione materiae competency, but also in cases which are of the ratione materiae competency of higher Courts.
Is there any form of Out-of-Court facilitated amicable dispute resolution process prior to litigation?
Mediation is a dispute resolution procedure whereby parties involved to a dispute may have the additional advantage to recourse to it also prior to filing a case before a Court. As explained in detail below Mediation may also take place after a litigation is initiated and at every stage of the trial until final decision is made.
What is the legal framework of Mediation in Greece?
Mediation in Greece is regulated by Law 3898/2010 under the title ‘Mediation in Civil and Commercial Matters’, published in the Official Gazette of the Hellenic Republic, Volume A, No. 211 on 16th of December 2010.
What is the definition of Mediation?
Mediation is a structured process, regardless of how it is named or referred to, whereby two or more parties to a dispute attempt to reach a voluntary settlement agreement with a mediator’s assistance. This definition excludes any (aforementioned) attempts to
settle the dispute made by a Magistrate Judge or a Judge, pursuant to Articles 208 et seq and 233 of CCP, in the context of judicial proceedings and is conducted out of the Court’s premises and at a private provider. (Article 4b)
What is the definition of Mediator’s role?
A Mediator is a neutral third body that meets the specific qualifications required by the relevant legislation (Mediation Law, Presidential Decree and specific Ministerial Decisions of the Greek Ministry of Justice, Transparency and Human Rights (MoJ)) and who is asked to conduct Mediation in an effective, impartial and competent way, regardless of the way in which it has been appointed or requested to conduct the mediation. (Article 4c)
Who is qualified to be a Mediator under the provisions of the Greek Law? Where can you find your Mediator?
Mediations in domestic disputes can only be conducted by lawyers that have been trained adequately, assessed accordingly and have been accredited as Mediators by the Administration Directorate General of the Greek Ministry of Justice, Transparency and Human Rights. The MoJ forms a Panel with a list of the names and short bios of all registered and licensed Mediators that can conduct mediations in Greece. This Panel is distributed to all Courts and is also posted at the Ministry’s of Justice Website.
Mediations in cross-border disputes can be conducted by accredited Mediators who come from various professions and are not exclusively lawyers. (Article 4c & 7)
What type of disputes may be submitted to Mediation according to Law 3898/2010?
Disputes under private law can be submitted to mediation provided that the parties involved are entitled to freely dispose the object of the dispute and settle by any means of a compromise.
Furthermore, the Greek Law on Mediation implements the EU Directive 2008/52/EC ‘on certain aspects of mediation in Civil and Commercial Matters in cross-border disputes’ of the European Parliament and the Council and its scope also explicitly covers all civil and commercial cases in cross-border disputes within the EU except from rights and obligations which are not at the parties disposal under the relevant applicable law. Mediation Law shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the state for acts and omissions in the exercise of State authority (acta iure imperii).
How does Recourse to Mediation take place?
Recourse to Mediation can take place as follows:
When the parties have agreed in writing to mediate under a mediation clause by means of a commercial contract before a dispute arises. Nevertheless, due to the importance of the parties’ voluntary submission to mediation and in order to increase the likelihood of a successful outcome, it has been considered that the above agreement to Mediate should be confirmed once the parties decide to recourse to mediation. Such an agreement is governed by civil law provisions on the law of contracts.
When, after parties’ compliance with Court’s invitation to mediate, the hearing of the case is postponed by written notice in Court’s Minutes. In such case, Court is obliged to postpone the hearing of the case for a minimum of three (3) and up to six (6) months period.
When ordered by another EU member state’s Court. When national law mandates it. (Article 3)
How is Mediation procedure structured?
The Law on Mediation draws the general lines of a very open framework where the parties, along with the Mediator, can work together in consultation, on the basis of voluntariness, making an effort to resolve their issue and reserving their right to put an end to the Mediation at any time. There are strict provisions only with regard to confidentiality, the prohibition of keeping records and the restrictions in communicating each party’s information during his/her meetings with them without their consent. Procedure is structured in a customary way depending on the parties and the needs of the issues to be resolved. (Article 8)
How is Mediation procedure initiated?
On the acceptance of his/her instruction the Mediator draws up a Mediation Agreement with specific rules regarding breach of confidentiality and the range of the confidentiality issues that are covered, unless otherwise agreed by the parties. Confidentiality can be agreed even on the content of the agreement of settlement if ever reached, unless its disclosure is necessary for the enforcement of the Agreement. Mediation Agreement determines the whole process and after been signed up before the beginning of the mediation initiates the procedure. (Article 10 par.1)
How will Confidentiality be ensured? What are the exceptions?
Certain provisions of the law on Mediation require that Mediators, parties, their lawyers/ representatives and any other person involved in the mediation process are not to be summoned as witnesses, nor may they be compelled to produce evidence in any subsequent judicial or arbitration proceedings. It provides, however, for an exception to its prohibition for public policy reasons and in particular when required to ensure the protection of the best interests of children or to prevent harm to the physical integrity of a person. (Article 10 par. 2)
Should the parties participate along with their lawyers at a Mediation session?
It is mandatory and hence Mediation cannot take place unless parties or their legal representatives (for legal entities) proceed to mediation with their lawyers throughout the duration of the procedure. (Article 8 par. 1)
What is the definition of a cross-border dispute?
A cross-border dispute within the EU shall be one whereas at least one of the parties involved is domiciled or habitually resident in a Member State other than that of any other party on the date on which: (a) the parties agree to use mediation after the dispute has arisen; (b) mediation is ordered by Court; (c) an obligation to use mediation arises
under national law; or (d) for the purposes of the likelihood of settlement Court invites the parties to try mediation. For the purposes of limitation periods and the purposes of confidentiality (below) a cross-border dispute shall also be one in which judicial proceedings or arbitration following mediation between the parties are initiated in a Member State other than that in which the parties were domiciled or habitually resident on the date referred to in the previous paragraph under (a), (b) or (c). (Article 4)
Is Mediation mandatory prior to Court’s hearing?
For the time being there is not such a provision within the Greek Law that mandates disputants to try mediation prior to filing their cases, neither are there any sanctions for not using it before or after the judicial proceedings with regard, in particular, to their omittance to comply with the Court’s invitation to mediate. However, there are set provisions (as mentioned above) for cross-border cases and future laws that may impose mandatory aspects.
What is the impact of having recourse to mediation on judicial proceedings?
Recourse to Mediation excludes temporarily and until the end of the mediation process any judicial proceeding. It is determined by Mediation Law that limitation or prescription periods for a claim subject to mediation shall cease to run during mediation proceedings initiated by recourse to mediation. In the event of the mediation being terminated without a settlement agreement, the limitation and prescription periods shall continue to run from the moment the mediation proceedings are terminated. To that respect the Mediation shall be terminated as follows: by a written statement from the mediator to the parties stating that the mediation has ended unsuccessfully, by a written statement from either party to the other party and to the mediator stating that it withdraws from the mediation or by any other way of abolition of the mediation. (Article 3 par.1 & Article 11).
Issues in enforcing the Mediation Settlement Agreement. Is it enforceable in court?
In the event of a Mediation successfully leading to a Settlement, the Mediator draws up a mediation agreement record, which should contain the following:
The Mediator’s full name; the location and time of the mediation meeting; the full names of the participants ; the agreement to mediate upon which the mediation session was based; the agreement reached .
At the end of the Mediation session, the mediation agreement record is signed by the mediator, the parties and their lawyers. The original agreement can be submitted by the Mediator unilaterally, upon the request of one of the parties, to the Secretariat of the Court of First Instance of the local jurisdiction where the Mediation took place.
Once submitted in this manner, the mediation agreement becomes enforceable. (Article 9).
What is the cost of Mediation?
A mediator cannot charge an hourly fee for more than 24 hours of work. The 24-hours fee ceiling also includes time spent for preliminary mediation preparation. The parties and the Mediator can agree on a different structure of charging. The hourly rate of a
Mediator is defined by a decision of the Minister of Justice, Transparency and Human Rights.
Unless the parties agree otherwise, each party is obliged to pay half of the mediator’s fee, and each party pays his or her own attorney’s fee. (Article 12)
What are the advantages of initiating Mediation in Greece?
Greek law provisions are mainly focused on ensuring high protection for parties’ interests in Mediation in five main directions: In terms of wide range of confidentiality, limitation and prescription periods, taking measures to ensure mediator’s quality and professional competence, rapid and unilaterally submitted enforcement of settlement agreements and reasonable cost.
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How are shipping disputes resolved in Greece?
The Maritime Court of Piraeus has exclusive jurisdiction to resolve maritime disputes in the Attica region. However, extra-judicial/Alternative Dispute Resolution “ADR” methods (Arbitration and recently Mediation) have been introduced into the Greek legal system to resolve maritime and commercial disputes, in order to capitalize on the advantages of ADR over the more complex, slow, money-and-time-consuming litigation. The Piraeus Association of Maritime Arbitration “PAMA” was founded to effectively address disputes in the worldwide shipping and commodity trades. A PAMA arbitration is conducted in accordance with the PAMA Rules for Maritime Arbitration 2007, which are governed in terms of procedure by Law 2735/1999 on International Commercial Arbitration.
What are the advantages of incorporating the PAMA Rules?
Unless the arbitration clause expressly provides that the PAMA Rules shall apply, the arbitration procedure shall be conducted in accordance with Law 2735/1999. By incorporating the PAMA Rules in the arbitration clause, the parties can derive great benefits. The Rules allow a party to consolidate disputes, to force the other party to arbitrate without having to compel arbitration in court, to have more flexibility, shorter time limits and a quicker and less expensive procedure.
Which disputes may be referred to and arbitrated by PAMA?
The contracting parties may, by an arbitration agreement, refer to PAMA any dispute arising in a shipping or commercial transaction. Such agreement may be incorporated in the contract as an arbitration clause or may form a separate agreement. Reference in a contract to another document incorporating an arbitration clause is valid and binding on the parties. An arbitration clause in a Bill of Lading is binding on the carrier, the shipper and the subsequent assignees of the BoL.
What is the wording of a common arbitration clause or agreement?
“Any dispute arising out of, or in connection with this Agreement shall be referred to and resolved by arbitration in Piraeus in accordance with the PAMA Rules in force”. However, it is customary for the parties to describe therein how the arbitration will be initiated, the number of arbitrators, the procedure of their appointment and the consequences of failing to appoint an arbitrator.
SHIPPING DISPUTES RESOLUTION
Dispute resolution under the rules of the
Piraeus Association of Maritime Arbitration
Giannos M. Dalakos, Attorney at Law, LL.M. (UCL), Trained Mediator (Harvard Law School) Associate at Dalakos Fassolis Theofanopoulos & Partners Law Firm
Dimitra K. Triantafyllou, Attorney at Law, cand. LL.M, Accredited Civil, Commercial & Family Mediator, JAMS Foundation Weinstein International Fellow (2011) Founder of DELTAtotheEPSILON
What if litigation proceedings have commenced before a court regarding a dispute for which there is an arbitration agreement?
A party, against whom litigation proceedings are brought regarding a dispute, which under an arbitration agreement is to be referred to arbitration, may apply to the court for a stay of proceedings. If the arbitration agreement is valid, the court refers the dispute to arbitration. However, a party is entitled to file before a competent court an application for injunction or security measures to protect its interests before or after the arbitration proceedings have commenced.
Where are the hearings held?
Unless the parties agree otherwise, the place of arbitration is Piraeus, Greece.
What is the language of an arbitration under the PAMA Rules?
The arbitration shall be conducted in the Greek language, unless a party expressly disagrees in writing, in which case the arbitration shall be conducted in the English language.
How is a PAMA arbitration proceeding initiated?
The claimant notifies in writing to the other party that he is invoking the arbitration clause in the contract, stating the factual circumstances giving rise to the claim, the amount claimed and any other demand. This document should be notified to PAMA within 15 business days from its notification to the other party.
Does PAMA charge an administrative fee?
A non-refundable administrative fee, of €500 for a documents-only arbitration and of €2,000 for an oral hearing arbitration is payable within 15 business days from the notification of the document invoking the arbitration clause. If the respondent submits a counter-claim, he shall bear the same obligation to pay the administrative fee.
Who are the members of PAMA and where can one find PAMA arbitrators?
Members of PAMA are commercial people of varied backgrounds and wide-ranging experience in numerous areas of the shipping industry including maritime lawyers, law professors, judges, shipowners, shipbrokers and marine engineers. PAMA publishes a roster of its members containing a description of their background, experience and expertise.
Are PAMA arbitrators impartial?
Under the PAMA Rules and Greek laws, arbitrators are independent and should attend all matters with strict impartiality irrespective of whether they are party-appointed and owe an equal duty to both parties.
In case an issue arises regarding the proposed arbitrator’s impartiality, the latter should disclose this immediately to the parties. A party may apply for removal of an appointed arbitrator if there are justifiable doubts as to his impartiality.
What are the arbitrators’ fees?
Each arbitrator shall be entitled to a fee calculated on the basis of the value of the amount in dispute and varied depending on whether the arbitration is conducted by an oral
hearing or by documents-only, the time of the procedure and complexity of the dispute. It is based on a published Table of Fees determined and periodically readjusted by PAMA, which sets the upper and lower limits.
How is an arbitrator appointed?
According to the PAMA Rules and unless the parties agree otherwise, if the dispute does not exceed €50,000 a sole arbitrator shall be appointed upon agreement of the parties within 15 business days from the commencement of the arbitration. Should the claim exceed €50,000, the Tribunal shall consist of three arbitrators. Each party shall appoint one and the arbitrator’s acceptance should be notified to PAMA within 15 business days. The two appointed
arbitrators shall appoint the third and chairman of the Tribunal. Such appointment, together with the appointment of an agent for service within Attica, should be notified in writing to the other party within 15 business days of the commencement of arbitration.
What is the procedure if the other party does not appoint an arbitrator?
Under the PAMA Rules, in case the parties fail to appoint either the sole arbitrator or their own or the two appointed arbitrators fail to appoint the chairman of the Tribunal, such appointment shall be made by the President of PAMA from the Roster of Arbitrators within 5 business days of the submission of a relevant request by any party. If the PAMA Rules have not been incorporated, then the Court of First Instance shall appoint them, upon application of a party.
Following the appointment of arbitrators, what are the next procedural steps in an arbitration conducted by an oral hearing?
The Tribunal shall meet to regulate the arbitration procedure. It may invite the claimant to submit a supplementary description of the claim within 20 business days or It may invite the parties to attend preliminary meetings in order to properly prepare the oral hearing, if the dispute is complicated.
The parties are invited to submit written pleadings and all evidence within 20 business days. The claimant may modify his claim or factual or legal basis with his pleadings at the latest. The respondent may submit a counter-claim with his pleadings.
Within 5 business days of receipt of the parties’ pleadings and evidence, the Tribunal invites them to submit a rebuttal within 10 business days or 20 business days if a counter-claim was submitted. The respondent may modify his counter-claim with his rebuttal.
A report by a person possessing special expertise or knowledge may be submitted to the Tribunal and brought to the attention of the parties at least 5 business days before the commencement of the oral hearing. The expert may be requested to be examined and cross-examined during the hearing.
The Tribunal shall fix the hearing date no later than 60 days from the submission of the parties rebuttals and determine the number of witnesses to be examined before it. Each party should inform the Tribunal of the witnesses it intends to examine at least 10 business days before the commencement of the hearing and the Tribunal shall advise the other party of these witnesses at least 5 business days before the hearing. The hearing may also take place by teleconference if need be.
Within 7 business days of the end of the hearing, the parties may submit a memorandum of evaluation of the hearing.
Can an arbitration be conducted without a hearing?
If the claim does not exceed €50,000, the arbitration shall be conducted by documents-only, unless the arbitrator rules otherwise. Should the parties agree, a documents-only arbitration may be conducted even if the claim exceeds €50,000. Regarding the submission of pleadings, evidence and rebuttals the same as above also apply to documents-only cases.
What is the jurisdiction of the Tribunal?
An arbitration clause incorporated in a contract consists a separate agreement and remains valid even if the main contract is void. Thus, the Tribunal shall have jurisdiction to rule on its own jurisdiction and on the existence and validity of the arbitration agreement.
If there are many parties to a dispute, can the various cases be consolidated in one arbitration proceeding under the PAMA Rules?
If upon a request of a party, two or more Tribunals determine that common issues of fact or law arise in the arbitration procedures pending before them, they may decide to hold joint hearings, saving time and expense by providing an efficient and coordinated proceeding.
Can a party apply to the arbitration Tribunal for interim measures?
The Tribunal, upon application, may order interim measures if considered necessary against the other party either conditionally on providing appropriate security or unconditionally.
Should the parties be represented by lawyers before the Tribunal?
It is not mandatory to be represented by lawyers. However, the parties should carefully consider proceeding without an attorney at law or a legal counsel whenever substantial sums of money or complex points of law are in issue.
What if a party fails to attend an oral hearing or fails to submit its pleadings or evidence?
If, without proving sufficient cause, a party fails to attend or be represented at a hearing of which due notice was given, or fails after due notice to submit written pleadings or evidence, the Tribunal may continue the proceedings in the absence of that party or, as the case may be, without any written submissions or evidence on his behalf, and may issue an award on the basis of the evidence before it.
Can the parties choose the substantive law to apply to their dispute?
The Tribunal shall apply the substantive law agreed by the parties. In the absence of an express or implied choice of applicable law, the Tribunal shall apply the law it deems more appropriate for the particular case.
What if the three arbitrators do not agree?
If the Tribunal consists of more than one arbitrator, the decision is issued by simple majority. If the decision of the arbitrators is unanimous, they may issue an award on any issue of the arbitration. If however a majority is not achieved, the vote of the chairman of the Tribunal renders the award final.
When will the Tribunal issue the award?
The Tribunal shall issue the final award within 60 days of the submission of the memoranda of evaluation of the hearing or the expiration of the time limit provided for such
submission. Then, it shall notify the award to the parties.
Are the arbitration awards reasoned?
All awards are issued with reasons. An award may be issued without reasons if the parties have previously and expressly agreed. However, it may be accompanied by a separate unofficial and confidential document which briefly states the reasons.
Can PAMA arbitrators issue awards in a foreign currency?
PAMA arbitrators can award sums in a foreign currency.
Are arbitration awards published?
Arbitration awards are confidential and are not published in case-law reviews or legal journals. However, an award may be published, without disclosing the names of the parties, arbitrators, legal counsels or ship concerned, if the parties agree and it is considered to be of general interest or particular significance.
Are PAMA arbitration awards enforceable in court?
An award made by the Tribunal pursuant to an arbitration agreement is final and binding on both parties and enforceable according to the provisions of article 904 of the Greek Code of Civil Procedure. An award made by the Tribunal pursuant to an arbitration agreement may be enforced in Greece in the same manner and to the same effect as a judgment or order of the court, after filing it with the Clerk of the competent Court of First Instance, pursuant to article 918 of CCP.
Are PAMA arbitration awards appealable?
The award is not-appealable. An award may be corrected or interpreted upon motion of a party within 30 days from the notification of the award. However, the award can be challenged, exclusively for narrowly defined legal issues arising out of the award, by filing an annulment application with the Piraeus Court of Appeal. The Court may revoke an award only if it is proven that the arbitration agreement was null and void or for lack of substantive jurisdiction, or for a serious irregularity in the appointment of arbitrators or the arbitration procedure or the award or if the award is against Greek public policy. The annulment application should be filed within 3 months of the date of notification of the award to the applicant and does not suspend the award’s enforceability effect. The applicant may apply to the Court for suspension of its enforceability effect, which the Court may grant if it considers that the application for annulment would probably succeed. The judgment of the Court of Appeal may be challenged by an appeal in cassation to the Supreme Court.
How will the arbitration costs be allocated?
Upon issuing the final arbitration award, the Tribunal advises the parties of the fees and expenses of each arbitrator and the arbitration and allocates the costs upon consideration of all the circumstances of the arbitration and especially the extent of success and defeat of
each party. The Tribunal may ask the parties for an advance payment against the estimated total fees of the arbitration and it may refrain from communicating the award to the parties until all fees have been fully paid.
What if the parties have settled their dispute before the issuance of the award?
If the parties have reached a settlement agreement before the issuance of the award, upon request of the parties, the Tribunal shall record the settlement reached and agreed by the parties in the form of an award, which shall have the same status and effect as any other arbitration award.
Is there any other type of ADR for maritime disputes?
Mediation is a non-binding process which can result in an amicable settlement of a maritime or any other commercial dispute in a quick, confidential and cost-effective way while preserving long-term business relationships. Although PAMA has not formulated terms for the resolution of disputes by mediation, a new legislation passed in Greece enables the parties to submit a dispute to mediation at any stage. More on mediation can be found in chapter 1.5.
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