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Commercial Arbitration

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Luxembourg

Véronique Hoffeld
Loyens & Loeff

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
    1. Yes Luxembourg is party to the New York Convention. The Convention was approved by the Law of 20 May 1983. The Law specifies that the Convention will apply on the basis of reciprocity for the recognition and enforcement of arbitration awards made in the territory of another contracting state.

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
    1. Luxembourg is also party to the European Convention on International Commercial Arbitration of 1961, the ICSID Convention of 1965 and the Convention on Conciliation and Arbitration within the OSCE of 1992.

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
    1. The Luxembourg New Civil Procedure Code (the NCPC) contains a specific section dedicated to arbitration (title I, Book III, Part II). This section was extended by the Law of 24 February 2012 with new provisions regarding mediation. However, no change was made with respect to arbitration provisions.

      Articles 1224 to 1251 of the NCPC are the relevant legislation governing arbitration in Luxembourg.

      It is not directly based on the UNCITRAL Model Law, but some provisions are similar.

      Luxembourg legislation does not provide for any different rules applicable for domestic arbitration and for international arbitration; the provisions of the NCPC apply to all arbitration proceedings governed by Luxembourg law.

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
    1. The main body for arbitration in Luxembourg is the Arbitration Centre of the Chamber of Commerce of Luxembourg (the Arbitration Centre), which offers interesting facilities and handles numerous institutional arbitration cases each year. The Arbitration Centre applies its own arbitration rules that are similar to the International Chamber of Commerce (ICC) rules and is governed by an Arbitration Council, which comprises the following members: the president of the National Luxembourg Committee of the ICC, the national member of the Arbitration Court of the ICC, the president of the Luxembourg Bar Association, the director of the Chamber of Commerce and the president of the Auditors Institute (Institut des Réviseurs d’Entreprise – IRE).

      This Arbitration Council does not itself decide on disputes or act as an arbitrator. It is more of an administrative body that acts in a supervisory capacity, in accordance with its arbitration rules.

      Any arbitration done at the Arbitration Centre will be governed by the arbitration rules of the Centre.

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
    1. Foreign arbitral providers can operate in Luxembourg without restrictions, and often Luxembourg is regarded as a good location for the administration of foreign international arbitration.

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
    1. There is no specialist arbitration court in Luxembourg.

      Issues related to arbitration proceedings that are referred to state jurisdictions are in majority referred to the president of the District Court (nomination and challenge of arbitrators, evidentiary issues, recognition and enforcement of the award).

      The district courts are the jurisdictions dealing with arbitration related issues and will deal with applications for setting aside and revoking arbitration awards.

    Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
    1. Arbitration agreements can be made before the arbitrators, by deed before a notary or by written agreement (article 1226 NCPC).

      Article 1227 of the NCPC provides that the arbitration agreement must specify the subject of the dispute and the arbitrators’ names in order to be valid.

      Arbitration agreements concluded ex ante are not required by law to be in writing, as long as evidence in writing can be provided showing that parties have agreed on a settlement by arbitration.

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
    1. Anyone can compromise on rights freely disposable (cf. article 1224 NCPC). However, some matters are excluded from arbitration (for instance disputes in relation with (i) the status and legal capacity of natural persons, (ii) the conjugal relationship, (iii) the application for divorce or legal separation, (iv) the representation of incapacitated persons). Furthermore, disputes that are subject to a mandatory attribution of jurisdiction cannot be submitted to arbitration.

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
    1. In principle, the arbitration agreement only binds the parties but Luxembourg case law has confirmed that in the event of the assignment of a contract or the stipulation in favour of a third party, the arbitration clause may be enforceable against a third party.

      In principle, parties which have an interest in the arbitral proceedings may join or intervene, unless otherwise provided in the arbitration rules agreed between the parties.

      Article 1243 of the NCPC specifically provides that an arbitration decision may not bind a third party.

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
    1. Consolidation will primarily depend on the arbitration rules chosen by the parties, as nothing is provided in the section dedicated to arbitration in the NCPC.

  11. 11.

    Groups of companies
    Is the 'group of companies doctrine' recognised in your jurisdiction?

    1. Luxembourg law does generally not recognise the “group of companies doctrine”. The fact that a subsidiary has agreed to an arbitration agreement, does not mean that its parent company is also bound by it.

      Piercing the corporate veil would, however, be possible in the event of fraud (co-mingling of assets – where the subsidiary has a fictional existence, extension of the bankruptcy to the master of bankruptcy or misuse of corporate property).

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?
    1. There are no specific provisions in the law on the separability of arbitration agreements.

      In 2003, the Court of Appeal ruled that an arbitration clause is ancillary to the principal contract and must thus be declared void where the principal contract is declared void.

      Article 8-4 of the Arbitration Centre arbitration rules (version of 1 March 2014), however, expressly provides that the invalidity or inexistence of the underlying contracts does not make the arbitration agreement null and void.

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
    1. The principle of competence-competence is recognised in Luxembourg, although no specific rule directly addresses the allocation of competence between courts and arbitrators.

      State courts will decline jurisdiction where one of the parties shows the existence of a valid arbitration clause.

      State courts would have to decline jurisdiction even if the arbitral tribunal had not yet been appointed.

      Case law further confirms that the non-jurisdiction of a state jurisdiction “necessarily implies” the jurisdiction of the arbitral tribunal.

      An ex post control by state courts is also available by way the grounds for annulment provided in article 1244 NCPC (see question 42). Among other possibilities, the arbitral award may be declared null and void based on the incompetence of the arbitral court or the lack of a valid arbitral agreement.

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
    1. The Luxembourg rules on arbitration as provided by law are only designed to be a minimum set of rules and it is recommended to refer to a more specific set of rules that provides for all the details of the arbitration procedure.

      It is generally advised to rely on a model arbitration clause made available by an international arbitration organisation (Luxembourg Arbitration Centre, ICC, LCIA, WIPO, etc).

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
    1. Institutional international arbitration is frequent in Luxembourg.

      There are no specific statistics on ad hoc arbitration, and it is consequently difficult to draw conclusions in this respect.

      ICC rules are frequently used in institutional arbitrations in Luxembourg.

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
    1. In the case of a multi-party dispute, where more than two parties have different interests, article 1227 of the NCPC provides that they will have to reach an agreement to appoint three arbitrators. Should they fail to do so, the president of the District Court will appoint the arbitrators on request of one of these three parties.

    Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
    1. The law states that unless otherwise agreed by the parties “the rules applying to the judicial proceedings will apply” (article 1230 of the NCPC). This includes the rules regarding the commencement of proceedings and limitation periods, if nothing has been provided regarding arbitration proceedings. Usually the arbitration process is started by sending an arbitration request to the opponent, and the limitation periods will depend on the law applicable to the substance of the case.

    Choice of law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
    1. In most cases, the parties have agreed on the substantive law governing their agreement. If not, the arbitrators will choose the substantive law according to the rules applicable in private international law.

      The New Code of Civil Procedure contains no provisions on how the arbitral tribunal should decide on the substantive law of the dispute. 

    Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
    1. Regarding the structure of the arbitration court itself, the parties may freely choose the arbitrators, provided that the arbitrators chosen are impartial, independent and that the parties have reached an agreement regarding the appointed arbitrators. Often, arbitrators are chosen among lawyers, but they can also be chosen among any category of professionals relevant for the dispute resolution, such as engineers or experts. It is important to note that there is no mandatory requirement for the parties to select a specific number of arbitrators.

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
    1. Non-nationals can act as arbitrators in arbitrations seated in Luxembourg or where hearings are held in Luxembourg. There are no specific requirements.

      Immigration requirements may however apply for non EU nationals to legally reside on the Luxembourg territory for such purpose.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
    1. If the parties have signed an arbitration clause without having agreed on a procedure to appoint the arbitrators or where they encounter difficulties in choosing their arbitrators, the NCPC sets out rules to appoint three arbitrators. In such a situation, each party shall appoint one arbitrator and the two appointed arbitrators will then choose a third arbitrator (article 1227 of the NCPC).

      Where a party fails to appoint an arbitrator or if the two appointed arbitrators fail to designate the third one, the president of the District Court will appoint, on demand of any of the parties, the missing arbitrator.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
    1. No, there are no rules providing for arbitrators’ immunity from suit under Luxembourg law.

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
    1. No, there are no specific rules regarding the arbitration costs in the NCPC. Allocation of costs and securitisation of the payment of arbitration fees must be agreed by the parties.

      An award allocating cost between the parties may be enforced after an order is granted by state courts declaring the award enforceable.

    Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
    1. Article 1235 of the NCPC states that an arbitrator can be challenged only on grounds that have arisen after acceptance of the arbitration agreement (which has to mention the names of the arbitrators in order to be valid).

      These grounds for challenging an arbitrator are the same as those relating to the state court judges set forth in article 521 of the NCPC (family relationship with parties or having written about or advised on the dispute). More generally, case law states that the lack of independence and impartiality is a ground to challenge an arbitrator (Court of Appeal, 24 November 1993, No. 14983).

      The International Bar Association guidelines on conflicts of interest are also commonly used as a reference.

    Interim relief

  25. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    1. It has been decided by case law that an arbitration clause does not prevent a judge from granting interim relief because of the urgency of the case or because the claim does not seem to be seriously challenged (Court of Appeal, 30 January 1989, No. 11039; Court of Appeal, 25 June 1991).

      More recently, it has been held that arbitration clauses have no effect with regards to summary proceedings, which therefore remain admissible (Court of Appeal, 3 June 2009). These cases specify that the parties may agree on the competence of the judge to order interim relief.

      Anti-suit injunctions are not available under Luxembourg law.

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
    1. Article 257 of the NCPC provides that upon request of the defendant, non-Luxembourg based applicants may be ordered to secure payments of costs and damages they may be ordered to deposit the corresponding amount (caution judicatum solvi).

      In line with the general provision that when nothing is specified, the ordinary procedure applies (article 1230 NCPC), this provisional relief could be requested in the case of arbitration proceedings.

    Procedure

  27. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

    1. Article 1230 of the NCPC states that parties and arbitrators shall comply with the procedural rules provided for ordinary courts if the parties did not agree otherwise.

      This implies the respect of all important principles governing judicial proceedings, ie, observance of the adversarial nature of proceedings, equality between parties, ensuring the rights of defence.

      It has been decided that when applying these general principles, they have to be adapted to the specific nature of arbitration (Court of Appeal, 22 July 1904, No. 517).

      Furthermore, the arbitration proceedings must comply with the most important procedural principle stated in article 6, section 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms which is the impartiality and independence of the court arbitration (Court of Appeal, 5 March 2003).

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
    1. If a party fails to appoint an arbitrator, the President of the District Court will do so (article 1227 of the NCPC). The court order will then be notified within eight days to the defendant with notice to participate in the arbitration process.

      The failure of a party to submit its defence, as required by article 1237 of the NCPC, does not prevent the arbitration proceedings from commencing.

  29. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
    1. Luxembourg law does not provide for specific rules of evidence for arbitration proceedings and consequently the general provisions of the NCPC will be applicable unless otherwise provided by the parties.

      As a general principle, each party must provide the evidence of the facts. Written evidence prevails.

      The arbitration court may order the parties to disclose certain documents but no arbitration decision may bind a third party.

      In commercial matters, private documents, accepted invoices, correspondence, balance sheets or witness statements are often submitted as evidence (article 109 of the Commercial Code).

      The IBA Rules on the Taking of Evidence in International Commercial Arbitration are not usually taken into account.

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
    1. The courts could intervene in an arbitration process in relation to evidentiary matters by ordering interim measures, for instance by issuing preventive evidentiary injunctions (article 350 NCPC) or emergency evidentiary measures (article 933 NCPC).

      In practice, these possibilities are rarely used in arbitration proceedings.

      Potentially, the Luxembourg courts may be requested to decide on claims of forged evidence. If judicial proceedings are commenced, the arbitration proceedings are suspended.

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
    1. Article 60 of the NCPC is applicable unless otherwise agreed by the parties (article 1230 NCPC). It provides that the parties have to cooperate in the investigation process conducted by the courts.

      The arbitration court could issue an interim judgment ordering a party to disclose relevant documents. The enforcement of this judgment could be requested from the courts.

      In addition, unless otherwise provided by the arbitration agreement, any investigation must be conducted by the entire arbitral tribunal, and investigations conducted by an arbitrator without the others will be declared null and void (article 1232 NCPC).

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
    1. Under Luxembourg law, there are no specific requirements for a final hearing on the merits.

      Defence rights must however be respected in arbitration proceedings, and the absence of a final hearing on the merits could potentially be a ground for voidance of the arbitration award.

  33. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
    1. Nothing in the law prohibits the arbitration court from holding hearings or procedural meetings outside Luxembourg. The arbitration award must however be issued in Luxembourg.

    Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?
    1. Unless the parties agree that unanimity is required for the award, the arbitration court may decide by a majority vote. Article 1237 of the NCPC expressly contemplates the situation in which a minority arbitrator does not want to sign the arbitration award. In this situation, the refusal of the minority arbitrator will be mentioned in the award.

      Also, article 1238 states that when a majority cannot be reached, a “third-party arbitrator” will be appointed by the arbitrators. If they cannot agree on him, he will be appointed by the court and it is the “third-party arbitrator” who issues the award.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
    1. Punitive damages could be considered as contrary to Luxembourg public order and could lead to the voidance of the award under article 1244 NCPC (see question 42).

      Generally speaking, any remedies or relief ordered by the arbitral tribunal, can only be enforced with the intervention of a judicial authority (article 1242 NCPC).

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
    1. Please refer to question 34. Minority arbitrators who refuse to sign the award must be mentioned in the award. Nothing prohibits the expression of dissenting opinions, although it is not common practice to detail the dissenting opinions.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
    1. The arbitration award must be signed by a majority of the arbitrators to be valid.

      In order to be declared enforceable by the president of the District Court, the minutes of the arbitration award must be filed with the registrar of the District Court by an arbitrator or a party (article 1241 NCPC).

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
    1. Articles 1228 and 1233 of the NCPC provide for a maximum of three months for the duration of the arbitration proceedings, unless otherwise agreed by the parties to the proceedings.

      Should this duration be exceeded, the arbitration award may be declared void by the courts. However, the parties have a possibility to adapt and extend the deadline in regard to their needs. The extension decided by the parties must however be clear and precise. The Luxembourg courts have decided that stating in the arbitration clause that “the arbitrator will have sufficient time to issue his arbitration award” does not mean that a specific term was agreed on by the parties. As a consequence, the arbitration award exceeding the three months maximum period was declared null and void (District Court of Luxembourg 25 January 2011).

      It is important to mention that specific time limits are applicable in order to file an application to declare the award null and void (see question 42). This action must be filed within one month from the notification of the award or from the discovery of the fraud (article 1246 NCPC).

    Costs and interest

  39. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?

    1. The arbitral tribunal has full discretion on the allocation of costs, unless otherwise agreed by the parties. Luxembourg procedural law does not apply the “loser pays” rule for the costs incurred by parties. Only reasonable judicial costs are borne by the loser. Each party pays their own lawyers’ fees. This is why in practice often costs are shared between the parties, unless specific circumstances justify a different splitting.

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
    1. The interest is determined by the underlying contract or by the applicable substantive law. Where Luxembourg law applies, a legal interest rate would apply and would be calculated on the principal claim, and not on costs.

    Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
    1. The only way to contest the award is to request its annulment before the District Court, on the limited list of grounds for annulment detailed in article 1244 NCPC. No appeal on the merits before the Luxembourg courts is possible.

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
    1. An arbitration award can only be challenged on the grounds for annulment that are listed in article 1244 of the NCPC. The limited list of annulment grounds is as follows:

      • the arbitration award infringes public order;
      • the dispute should not have been subject to arbitration proceedings;
      • there was no valid arbitration agreement;
      • the arbitration court exceeded the limits of its jurisdiction or of its powers;
      • the arbitration court omitted to rule on one or more points of the dispute and the issues omitted cannot be separated from the issues on which the court has ruled;
      • the arbitration award was made by an arbitration court that was established improperly;
      • the rights of the defence have been breached;
      • the arbitration award does not state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given;
      • the arbitration award contains contradictory statements;
      • the arbitration award has been obtained by fraud;
      • the arbitration award is based on evidence that has been declared false by an irrevocable judicial decision or on evidence that was recognised to be false; and
      • after the arbitration award was made, a document or other piece of evidence that would have had a decisive influence on the award and that was withheld by a deliberate act of the other party was discovered.

      An arbitration award can only be challenged before the courts once it is final.

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
    1. The Luxembourg courts decided that the right to challenge the validity of an award is a mandatory rule that the parties cannot exclude in advance (District Court of Luxembourg, 3 January 1996).

      Also, the parties cannot modify the list of the grounds for annulment of the award, except the one relating to the award’s reasoning (article 1244, 8° of the NCPC).

      Article 1231 NCPC provides that the parties may exclude the possibility of an appeal on the merits.

    Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
    1. Article 1251 of the NCPC provides that, subject to the provision of international conventions, a judge may refuse to enforce an award on the following grounds:

      • the award can still be challenged before the arbitrators and the arbitrators did not order its provisional enforcement notwithstanding an appeal;
      • the award or its enforcement is contrary to the public order or the dispute was not arbitrable; or
      • if it is established that there are grounds for annulment referred to in article 1244, 3° to 1244, 12°.

      The Court of Appeal decided that the fact that an award could be set aside in the seat of arbitration does not prevent the Luxembourg court from enforcing the award since article 1251 of the NCPC does not provide for the annulment of an award in the seat of arbitration as a reason for refusing its enforcement in Luxembourg (Court of Appeal, 28 January 1999, 31, 95).

      According to a recent judicial decision (cf. Court of Appeal No. 42067 dated 25 June 2015) standard Luxembourg provisions of the NCPC do not apply since the aforementioned convention applies. Indeed, Luxembourg provisions are applicable alternatively, so that the convention is exclusively applicable when the litigious award is subject to the convention.

      Where the litigious award is not subject to the aforementioned convention, Luxembourg provisions of the NCPC apply and therefore, a party may not argue that proceedings for voidance are pending in the country of origin of the arbitration award in order to object to its enforcement in another country (in this case Luxembourg) (Summary Judge district court of Luxembourg, 5 May 2010).

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
    1. Luxembourg courts interpret the conditions relating to a breach of public order restrictively as it must not lead to a review of the merits of the case (Court of Appeal, 26 July 2005). Indeed, Luxembourg courts strictly comply with the distinction between the “procedural review” of an arbitration award by the courts where the enforcement is sought and the review of the merits of the case by the courts where the arbitration award was issued.

      Luxembourg is a pro arbitrationjurisdiction.

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
    1. Luxembourg recognises the immunity of sovereign states against enforcement. This immunity strictly applies to states and cannot be extended to public bodies of states.

      Luxembourg is also party to the European Convention on State Immunity of 16 May 1972 (Basel), which states that “no measures of execution or preventive measures against the property of a contracting state may be taken in the territory of another contracting state except where and to the extent that the state has expressly consented thereto in writing in any particular case.” (Article 23.)

    Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
    1. There are no specific provisions relating to confidentiality of arbitration proceedings in Luxembourg law. It is recommended that parties agree on the confidential nature of the arbitration proceedings, and on the potential remedies attached to the breach of such confidentiality.

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
    1. There are no specific provisions on the confidentiality of evidence produced and pleadings filed in arbitration proceedings. Unless otherwise agreed by the parties, nothing should prohibit the parties using these documents for other proceedings.

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
    1. Counsel and arbitrators are bound by the ethical codes and professional standards applicable in their home bars associations or jurisdictions. Luxembourg law does not include any provisions in this respect specifically applicable to arbitration.

      Generally speaking, arbitrators must be independent and impartial (see also question 24).

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
    1. Luxembourg is a civil law jurisdiction, and as a major financial centre, is familiar with international commercial arbitration.

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the 'group of companies doctrine' recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the "loser pays" rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?