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Starting an arbitration proceeding
What is needed to commence arbitration?
Article 1230 of the New Code of Civil Procedure states that unless the parties have agreed otherwise, “the rules applying to the judicial proceedings will apply". These include the rules on the commencement of proceedings and limitation periods, if nothing has been agreed in this regard by the parties. Usually, the arbitration proceedings begin by sending an arbitration request to the opponent.
Are there any limitation periods for the commencement of arbitration?
Luxembourg law specifies no limitation periods for the commencement of arbitration. In principle, such rules will be considered substantive rules and as such will depend on the substantive law.
Are there any procedural rules that arbitrators must follow?
The rules governing arbitration proceedings in Luxembourg are the normal rules which apply to court proceedings, although the parties are free to deviate therefrom by mutual agreement (Article 1230 of the New Code of Civil Procedure). This creates some uncertainty as to which precise rules will apply, as various types of judicial proceedings exist. In principle, Luxembourg civil procedural rules should apply to arbitration proceedings carried out in Luxembourg under Luxembourg law.
Are dissenting opinions permitted under the law of your jurisdiction?
Unless the parties agree that a unanimous decision is required for the award, the tribunal may decide by majority vote. Article 1237 of the New Code of Civil Procedure provides that if a minority arbitrator does not wish to sign the arbitration award, his refusal to do so must be mentioned in the award.
Can local courts intervene in proceedings?
The courts may intervene in arbitration in relation to evidentiary matters by ordering interim measures - for instance, by issuing preventive evidentiary injunctions (Article 350 of the New Code of Civil Procedure) or emergency evidentiary measures (Article 933 of the New Code of Civil Procedure).
The Luxembourg courts may also be requested to decide on claims of forged evidence. If judicial proceedings are commenced, the arbitration proceedings are suspended.
Can the local courts assist in choosing arbitrators?
If the arbitration agreement does not provide for a method of appointment of the arbitrators and the parties fail to reach agreement in this regard, the president of the district court may intervene.
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?
The failure of a party to submit its defence, as required by Article 1237 of the New Code of Civil Procedure, does not prevent the tribunal from continuing the proceedings and taking a decision based on the submissions provided.
In what instances can third parties be bound by an arbitration agreement or award?
Individuals or entities which are not party to an arbitration agreement cannot be bound by an arbitral award. However, the assignment of an agreement which includes an arbitration clause will bind the assignee.
Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?
There are no specific rules on a default language and seat for arbitrations. If the arbitration agreement is silent in this regard, the tribunal will usually take a decision based on the circumstances of the case.
How is evidence obtained by the tribunal?
Luxembourg law includes no specific rules of evidence for arbitration proceedings; consequently, the general provisions of the New Code of Civil Procedure will apply, unless the parties have agreed otherwise. As a general principle, each party must provide evidence of the facts.
Where one party has evidence in its possession, the tribunal may, at the request of the other party, order it to produce that evidence, subject to a penalty if the evidence is not produced. The tribunal may also, at the request of a party, request or order the production of documents held by third parties where this is necessary for the proceedings and such production is lawful.
What kinds of evidence are acceptable?
In commercial matters, private documents, accepted invoices, correspondence, balance sheets and witness statements are often accepted as evidence.
Is confidentiality ensured?
There are no specific provisions on the confidentiality of arbitration proceedings in Luxembourg law.
Can information in arbitral proceedings be disclosed in subsequent proceedings?
It is recommended that the parties agree in the arbitration agreement on the confidential nature of the proceedings and the potential remedies for breach of confidentiality.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
There are no specific ethical codes for arbitrators in Luxembourg. However, arbitrators may be subject to specific rules of professional conduct in relation to their profession (eg, lawyers, architects, accountants).
Generally speaking, arbitrators must be impartial and independent.
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