Dispute Resolution: Full disclosure is the best form of preparation

Date: 29th April 2022

George Panopoulos, a partner at Lambadarios Law Firm and member of the International Chamber of Commerce (ICC) Court of Arbitration, says the most common mistake a client can make when preparing for a dispute is withholding documents from their lawyers, by accident or design.

“You can have an unpleasant surprise,” says Panopoulos. “They have documents in their possession. But you see it for the first time when the other party produces them. It is the most awful surprise.”

“When you go to the lawyer, it is like going to the doctor,” he adds. “If you do not tell them everything, they cannot find the right medicine to cure the problem.”

There are two reasons why a client may not hand over documents. Firstly, they may not think it is relevant to the arbitration or dispute.

“They cannot recognise what is relevant, they do not have the expertise,” says Panopoulos. “It is better they give us all emails and correspondence related to the matter, even letters, and we can then make the choice. If it is about contractual disputes, they should give us all drafts of the contracts even before the final draft.”

The second reason is reluctance. “It is not so much that they think it is incriminating, but they may just be embarrassed to show us a letter that was poorly written and was not good for their interests or purpose,” he says.

Panopoulos is one of the leading dispute resolution lawyers in Greece. He was recently made a member of the ICC International Court of Arbitration, which is the leading authority for international commerce and business disputes.

Panopoulos’s promotion to the ICC has put him in a unique position to gain experience at the cutting edge of arbitration. While a typical arbitration lawyer might see five cases in a year, often less, he is seeing 10 to 20 cases every month as a member of the ICC.

“This is a huge experience, a condensed experience,” he says. “Before I was an ICC member, I was considered to be quite experienced. Yet, in these six months (since becoming an ICC member), I have seen more awards than I have in my entire life. It is like doing a postgraduate degree.”

When an arbitration decision is awarded, it is not necessarily enforceable in all jurisdictions. But by working with some of the most experienced lawyers in the world, Panopoulos is learning how to create a “watertight” decision.

The main aspect of the ICC Court’s scrutiny is to make sure that the award be enforceable in the jurisdictions of interest,” he says.

“Seeing the way in which experienced members of the ICC want things to be done is invaluable for my clients: how to write an award; how to formulate the brief; what they’re inclined to accept or reject in terms of procedural requests; and other aspects that they want to see. These viewpoints, no matter your experience, are far more insightful from experienced arbitrators.”

Force Majeure

Panopoulos has been using his experience to advise clients to simplify their force majeure clauses in Greece. Force majeure clauses are triggered if an unavoidable catastrophe means a party cannot fulfil their side of a contact. The Covid-19 pandemic resulted in a great deal of force majeure clauses being triggered.

“As a general rule in Greece, we have not seen much arbitration in terms of force majeure due to the pandemic. Most have settled. Universally in Greece the pandemic was seen as a force majeure event so companies decided to save themselves the expense and instead settle,” he says.

With much policymaking around the world now geared towards ‘living with Covid’, Panopoulos is seeing a tendency to over-complicate force majeure clauses. “I have seen in many discussions, especially in Germany and England, they have started to make it more complicated to say that someone is obstructed to perform their obligation,” he says. “It’s too complex. As it stands under Greek law, the concept of force majeure is so adaptable and can suit any situation, even the current situation.”

“Under Greek law, you have to make a link between the force majeure event and your ability to perform the obligations in the contract. If you prove it, you are released; if you don’t, you are not released. No matter how complicated we make it, the principle will remain the same.”

Panopoulos adds: “When I’m writing a contract, I remove all these complex clauses and explain, even to foreign firms, that Geek law force majeure is adequate for the situation we live in today.”

Read also: ARBITRATION IN GREECE: Investors targeted with English language clauses