In a judgment of 10 February 20211, the Luxembourg Court of Appeal revisited the relationship between arbitration and the role of the national courts in summary proceedings.
In this case, a debtor appealed an interim payment order (référé-provision) issued by a vice president of the Luxembourg District Court in the context of interlocutory (or summary) proceedings. The creditor's request for advance payment was approved despite the fact that the parties had concluded an arbitration agreement.
In this respect, the court first restated the well-established principle that an arbitration clause must be interpreted restrictively and relate solely to the merits of the case. It then noted that arbitration agree-ments are, by definition, ineffective in summary proceedings, which relate solely to interim measures, unless otherwise agreed between the parties.2
The case at hand concerned a special type of summary proceedings (référé-provision) allowing the claim-ant to recover monetary damages, provided the obligation on which the claim is based cannot "seriously be disputed".3
The court, relying on applicable French case law, took into account the specificity of reféré-provision proceedings and ruled that this type of action should be limited to urgent cases, which cannot be re-solved by means of arbitration.
This requirement is rooted in the existence of an arbitration clause. Indeed, by concluding such a clause, the parties express their intent to exclude the jurisdiction of the national courts in the event a dispute arises between them. Thus, it would not make sense to allow them to bring an action before the national courts whenever they like, unless the proceedings are justified by a particular circumstance, such as urgency, that prevents them from awaiting an arbitral award.4
The Luxembourg position is now in line with French case law, traditionally sympathetic to arbitration, and confirms the national trend in favour of arbitration, as reflected in Bill No 7671/00 to modernise the Luxembourg arbitration rules currently pending before the Parliament,5 and the promotion of the Grand Duchy of Luxembourg as a venue for arbitration.6
1 Luxembourg Court of Appeal, summary proceedings, 10 February 2021, CAL-2020-00829.
2 Luxembourg Court of Appeal, 3 June 2009, no 34203; 5 December 1988 no 10606; 30 January 1989, no 11039; 25 June 1991 no 13074.
3 Article 933 §2 of the Code of Civil Procedure.
4 Jacques VUITTON and Xavier VUITTON, Les référés, 2nd ed., Litec, no 841.
5 The bill is available on the website of the Luxembourg House of Representatives, in French.
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