‘From the above it is evident that from the evaluation of the evidence which
was submitted before it, as undertaken by the arbitral tribunal, it reached the
conclusion, according to the prevailing opinion, that no acts of bribery or corruption were proven, during the award and fulfillment of the contract between the parties for the Olympic Games C4I program “Athens 2004). The above judgment of the Tribunal on the merits of the case following the evaluation of the evidence, is beyond judicial review by the Court of Appeal, which, according to all that have been stated in the major ground of judgment, does not possess the legal possibility, in the context of its annulment review, to proceed in essence to the re-hearing of the case on its merits and to reevaluate the correctness of the arbitral judgment as regards any false interpretation and application of substantial law provisions or as regards any bad evaluation of the facts. Within the above context and upon review of the first two arguments, the present Court explores the basis of the grounds for annulment. The abovementioned detailed and comprehensive findings of the rationale of the contested arbitral award, which form the basis of its operative part, are not contrary to the international public order, i.e. to the prevailing in Greece fundamental principles which concern the social, ethical, financial, political and other commonly accepted perceptions, which govern and regulate consistently the living relations within the Greek territory, in a way that its enforcement in the Greek territory poses the danger of causing a situation which does not conform to the above principles. As a result, the Court of Appeal, reviewing within the above context the first two grounds of the action for annulment of the arbitral award dismissed them as unfounded on their merits, due to their opposition against the public order, dismissed them as unfounded in their substance, both by means of its own rational, as well as that which with
explicit reference is mentioned in the incorporated reasoning of the arbitral award reviewed by that court (Court of Appeal), it did not err according to the provisions of Article 559 paras. 1 and 19 GCCP, namely it did not directly or indirectly violate the aforementioned applicable provisions of the substantive law of Articles 34 para. 2b’ (bb) L. 2735/1999 and 33 Greek Civil Code
(AK), while it has the necessary admissions for the review of the correct or not
application of the same provisions. Therefore, the first reason for the annulment,
which by citing the aforementioned provisions claims the opposite, has to be
dismissed on both of its parts under the numbers 1 and 19 of Article 559 GCCP.
Furthermore, according to the provision of Article 34 para. 2a’ (dd) L.
2735/1999 the arbitral award may be annulled, if the claimant claims and proves, that the arbitration procedure was not in accordance with the agreement of the parties or with L. 2735/1999. Moreover, in Article 18 of the same law it is stated that “
During the arbitration procedure the principle of equal treatment of the parties is respected”.
Relevant to the above provision are the provisions of the same Law (2735/1999), namely a) of Article 34 para. 2a’ (bb), with which a ground for annulment of the international arbitral award is founded if the claimant shows and proves that “he was not informed, in the appropriate manner, for the appointment of the arbitrator or for the procedure of the arbitration or due to any other reason, he found himself in a position of fault-free inability to present his claims”, b) of Article 24 para. 3, with which the obligation is imposed for the writs of pleadings to be notified to all parties.
Only the aforementioned special violations establish ground for annulment, while other forms of violations, which could fall under the general right for defense, are excluded. Therefore, according to the aforementioned provisions, the fundamental rights of the opposing parties, namely the accessibility to the Court and the procedural equality, as they arise from Article 20 of the Constitution and Article 6 of ECHR, are protected in the context of the international arbitration procedure. In particular, with the latter provisions
the respect of the principles of the equality of the opposing parties and the right to be heard for the parties during the arbitration, are obligatory. The first of these principles takes effect when none of the opposing parties acquires in relation to the rest, special rights or is not acquitted of the imposed obligations set to the others in a procedural level. The second is achieved with the supply to all the opposing parties, on the one hand of the right of access during the trial proceedings and the submission of claims and of their evidence, after they are summoned by the arbitrators and on the other, with the right to acquire knowledge on the claims of the opposing parties in order to argue against them (Supreme Court 13/1995, Supreme Court 2111/2017, Supreme Court 40/2101, Supreme Court 511/2007). Finally, according to Article 250 “
If there is a pending criminal action which affects the establishment of the dispute, the court
may, ex officio or following a request from a party, order the postponement of the proceedings until there is an irrevocable criminal decision”. Following the latter provision, the postponement of the proceedings, for the aforementioned reason is on the discretion of the Court, while the approval or dismissal of the relevant request does not fall under the reviewing authority of the Supreme Court (Supreme Court 522/2012, Supreme Court 1366/2011, Supreme Court 58/2011, Supreme Court 1693/2009). The flexibility provided under the aforementioned provision to the Court violates neither Article 20 of the Constitution, nor Article 6 of ECHR, because it does not limit the person’s right, in its core, to bring the case before the Court and request, in this way, judicial protection (see Supreme Court 2111/2017, Supreme Court 9/2005), nor is it contrary to the international public order, as this is envisaged in Article 33 of the Greek Civil Code and was analyzed in the first major thought.
In the present case, with its second ground of annulment the petitioner
ascribes to the challenged decision an error based on no. 1 and 19 of article 559
GCCP, for wrongful interpretation and application of articles 20 para. 1 of the
Constitution, 34 para. 2 section (a), subsection (dd) and section (b), subsection (bb) L. 2735/1999 in conjunction with article 33 of the Civil Code and 18 L. 2735/1999, as well as for lack of or insufficient rationale in an issue which exerts substantial influence in the outcome of the trial, because the Court of Appeal ruled that the Arbitral Tribunal, by rejecting its petition to suspend
the procedure, according to article 250 GCCP, until the issuance of irrevocable
decisions on the criminal aspects which concern the present case, did not violate the principles of equal treatment and of the right to be heard (article 18 L. 2735/1999), which govern the arbitration trial and rejected by majority vote the third ground of the lawsuit on setting aside the Arbitral Tribunal award. From the review of the arbitral award it turns out that the claimant reintroduced before the Arbitral Tribunal its petition to suspend the arbitration proceedings, according to article 250 GCCP, until the finalization of the criminal proceedings which were pending at the stage of main investigation for the Siemens case, which (petition) had been rejected by means of decision dated 14.7.2011 of the same tribunal on the “preliminary issues”. This petition was rejected anew with the following rationale: (a) that from the entirety of the evidence, not only does proof not arise (no judicial conviction is created) regarding applicability of the requirements for invalidity or otherwise voidability of the Contract but rather the strongest indications (if not full proof) are present that for the specific security project of the Olympic Games neither bribery existed nor other
corruption in connection with the conclusion of the contract and its modifications, nor concerning the overall receipt of the project (para. 133), (b) that there was no proof that the defendant committed acts of bribery or other corruption or that it was aware of such actions by Siemens or that it was obligated to be aware of them at the time of entering into the Contract but, on the contrary, from the evidence, which was provided by the plaintiff it was strongly assumed, if not fully proved, that the defendant was neither involved with nor did it have knowledge in relation to the illegal activities of Siemens (para. 134), (c) that the main investigation which is being conducted
subsequent to the 2005 order of the public prosecutor, in other words 7-8 years following from the initial order of the public prosecutor, has neither personified nor has there even been a charge made against any person (para. 135), nor has the Parliamentary Investigative Committee attributed to any political person from those who handled matters of the Contract any liabilities (para. 136), (d)
that in the context of the arbitration procedure the contesting parties had the capability of providing all the evidence available to them and they did so, while from the thorough investigation of the procedure regarding the conclusion of the Contract and the procedure regarding receipt of the project no evidence arose which would provide any indication that the persons handling the entering into of the Contract and the receipt of the project acted against the interests of the plaintiff (para. 137). According to the findings of the contested arbitral award, which are not challenged by the Greek State, the opportunity had been given to both litigants to appear before the court during the adjudication of the dispute, to submit and expand on their arguments and to file all evidence available to them as proof, and the parties did so, and all the above have been evaluated comprehensively by the Arbitral Tribunal. In addition, as plaintiff does not doubt, the other party to the arbitral trial (defendant) did not acquire, as against the plaintiff, any special rights nor was it given a waiver from obligations
with which it (the plaintiff) was burdened. Therefore, based on the above, the
rejection of the above request, the allowance or not of which belonged to the
discretion of the Arbitral Tribunal, does neither constitute a violation by the Arbitral Tribunal of the principles of equal treatment and of the right to be heard, which govern the arbitration trial, nor does it constitute overstepping the limits of its discretion contrary to the international public order. Therefore, the Court of Appeal, which, by its majority opinion, through the challenged decision rejected as unfounded on its merits the third annulment ground of the arbitral award, both through its own rationale, as well as that which by express citation is mentioned in the above incorporated arbitral award which is reviewed
by the Court of Appeal, did not commit the errors provided for in article 559 no. 1 and 19, that is to say it did not violate directly or indirectly the above mentioned provisions of articles 20 para. 1 of the Constitution, 34 para. 2 section (a) subsection (dd) and section (b) subsection (bb), in conjunction with article 33 Civil Code and 18 L. 2735/1999, while it also possesses the necessary findings for the review of the correct or wrongful application of the above provisions. Therefore, the second ground of annulment, which, according to the above, claims the opposite, must be rejected as unfounded concerning both its parts based on numbers 1 and 19 of article 559 GCCP.’
De Griekse Hoge Raad heeft vervolgens in zijn oordeel het verzoek om vernietiging van de beslissing van de Court of Appeal 3567/2017 verworpen.