SIAC v. Greece, Award Regarding Preliminary Issues, 11 juil. 2011

The Arbitral Tribunal, composed by the following Arbitrators: Grigorios Timagenis, Chairman of the Arbitral Tribunal, Dionysios Kondylis, Arbitrator and Styliani Charitaki, Arbitrator:

1.

conducted a hearing in the presence of the parties' authorised lawyers on 17 December 2010 in a specific room in the Athenaeum Intercontinental Hotel in Athens and subsequently deliberated in Athens on 11 February 2011 and 6 April 2011 in order to decide upon the preliminary issues referred to in paragraph 14 of the Terms of Reference dated 21 July 2010, which are connected to the dispute of this arbitration between the parties arising from Agreement 020A/03 dated 19 May 2003 pertaining to the supply of the C4I System for Olympic Security and related Products and Services, and for which the parties agreed to conduct a separate hearing and render a separate decision.

2.

(a) The object of the Agreement for the C4I System is described briefly in para 7(b) of the ToR as follows:

"The dispute which must be resolved by the Arbitral Tribunal arises from Agreement 020A/03 concluded between the parties on 19 May 2003, the objective of which, under its clause 3.1, includes the study, design, construction, installation, testing, certification, completion, development, sale, provision of services, according to the requirements of each case, and delivery of the C4I Olympic Security systems as a "turn-key" solution, compatible and interoperable between each other, as an integral unit, as specified in Annex A of this agreement, which constitute a security and operations support information system under the name "Command Control Communications Coordination & Integration - C4I" concerning initially the security of Olympic Games 2004 and subsequently for permanent use (hereinafter "C4I System"). The C4I System, according to the Agreement, consists of three systems: a) the Command & Decision Support System (CDSS) which comprises 7 sub-systems in total, b) the Communication and Information System (CIS) which comprises 13 sub-systems, and c) the Command Support Systems (CSS) which comprises 10 sub-systems.

The original agreement was further modified under the following amendments:

(i) The 1st Amendment dated 23 December 2003
(ii) The 2nd Amendment dated 7 April 2004
(iii) The 3rd Amendment dated 25 June 2004
(iv) The 4th Amendment dated 05 August 2004
(v) The 5th Amendment dated 29 March 2007
(vi) The 6th Amendment dated 11 September 2007
(vii) The 7th Amendment dated 27 October 2008

The original agreement and the amendments shall be referred to hereinafter for the purposes of this arbitration as "the Agreement"."

(b) The allegations of the Claimant are summarized in para 7c of the ToR as follows:

"Based on the Claimant’s request for arbitration dated 16 June 2009 (hereinafter "Request for Arbitration"), the Claimant contends that the Respondent acted in bad faith and in a non-contractual manner and has repeatedly breached the Agreement. More specifically, the Claimant considers that, in spite of the fact that the C4I System was completed and delivered to the Respondent and that it is already used on a daily basis and now constitutes an integral component of the public safety infrastructure of the Greek State, the Respondent refuses to repay the Claimant and to release the letters of guarantee submitted by the Claimant. The Claimant contends that the Respondent failed to fulfil its obligations for no good reason and, in particular, it breached its duty to act in good faith and observe its contractual obligations."

(c) The requests for relief of the Claimant are summarized in para 7d of the ToR.

(d) The allegations of the Respondent are summarized in para 7e of the ToR as follows:

"The Respondent, in its answer to the Request for Arbitration dated 25 September 2009 (hereinafter "Answer") contends that the Claimant was not in a position to supply the Respondent with a complex and interoperable security system for the 2004 Athens Olympic Games, as a turn-key solution, as required under the circumstances and in accordance with the specifications set by the Respondent. The Respondent contends that the Claimant failed to fulfil its obligations and, in particular, failed to supply, apart from the other systems and subsystems, the CDSS System. Consequently, it exposed the country to the risk of suffering international humiliation due to the potential transfer of the Games to another country. In view of the Olympic Games, it became necessary to provisionally accept, by usage and not in accordance with the terms of the agreement, some of the C4I Systems and Subsystems, without carrying out the agreed testing.
The right to carry out all the agreed contractual procedures of delivery and acceptance of the System was reserved.

The Respondent argues that the Claimant acted in bad faith, abusively and that the Request for Arbitration was brought prematurely. The Claimant was obliged to deliver the C4I System as an integral unit, as a "turn-key" solution and ready for operational use. The performance of the Claimant's obligations under a strict time-limit was a material condition of the Agreement. The Claimant was in delay and seemed incapable of carrying out the material requirements of the Agreement, primarily in respect of the inter-operability of the system, but also in respect of the development of the applications of the CDSS system.

Following the 5th amendment of the Agreement, while the Respondent fulfilled its obligations, the Claimant failed to fulfil its side of the obligations and delayed in delivering some of the remaining subsystems, such as subsystem 16 AVL, while it failed to deploy a broadband network in subsystem 17, as it had promised. Additionally, the claimant failed to pay the difference in the telecommunication charges which were incurred from the change of the architecture of the network in subsystem 17, while it was obliged to do so under the agreement. Furthermore, it failed to fulfil its contractual obligation to construct a second switching centre of subsystem 20 - TETRA - in GADA, before the completion of the general C4I system test (October 2008). Moreover, the Claimant delayed in fulfilling its contractual (under the 5th amendment) obligation to deliver the overall implementation design of subsystems 1-7. Additionally, the Respondent alleges that SIEMENS HELLAS S.A. replaced the Claimant, following the 5th amendment of the agreement."

(e) The requests for relief of the Respondent are summarized in para 7f of the ToR.

3.

Paragraph 14 of the Terms of Reference concerning of the preliminary issues is cited verbatim as follows:

"14. Preliminary Issues

A separate hearing shall be conducted and a separate decision shall be rendered for preliminary issues. For the purposes of this paragraph No. 14 (i.e. for the separate hearing and decision), preliminary issues are considered to be those which are connected to:

a) the following requests by the Claimant:

(1) Inadmissibility of the Respondent’s Supplementary Answers

(2) Inadmissibility of the Plea for set-off, because on the one hand this plea hides a belated counter-claim and on the other hand the costs of the ICC Arbitration have not yet been paid

(3) Separation of the examination of the merits of the case into two (2) stages the first of which will determine whether the acceptance of the C4I System by the Respondent shall be upheld or rejected

b) the following requests by the Respondent:

(1) Request for the suspension of the proceedings due to criminal charges.

(2) Lack of standing to bring the Request.

(3) Inadmissibility of the Request for Arbitration due to lack of written preliminary steps.

(4) Invalidity of the arbitration clause and thus lack of jurisdiction of the Arbitral Tribunal.

It is however evident that the determination of these issues and this paragraph in general do not constitute nor can be construed as limiting any party from raising, according to the procedural rules which govern this arbitration and at any subsequent stage, any claims or pleas on the merits or on the arbitral proceedings, preliminary or not, while they do not limit nor can be construed as limiting the Arbitral Tribunal from holding at any stage of the proceedings that there are any other preliminary issues concerning the proceedings or the merits of the dispute, or any part of them, nor whether an issue is preliminary or not, nor whether a preliminary issue is closely connected to the merits of the dispute or whether it requires taking of evidence, so that this issue may be considered along with the merits of the dispute. "

4.

Having regard to the Rules of Arbitration (Rules) of the International Court of Arbitration of the International Chamber of Commerce (ICC) as in force from 1 January 1998 and consequently applicable both at the time when the arbitration agreement entered and at the time when this arbitration was initiated.

5.

Having regard to the following documents, other than those instituting the proceedings, which were submitted by the parties, and more specifically, by the Respondent (a) its Supplementary Answer dated 20/4/2010, (b) its Second Supplementary Answer dated 14 May 2010, (c) the Respondent’s comments dated 28 May 2010, and (d) its letter dated 19 July 2010, and by the Claimant (a) its letter dated 30 April 2010 regarding the inadmissibility of the Respondent’s Supplementary Answer, (b) its reply dated 14 May 2010 with its Extrajudicial Declaration-Answer dated 4 May 2010 annexed thereto, (c) the "Claimant’s Reply to the Respondent’s Supplementary Answers" dated 19 May 2010, (d) its letter dated 27 May 2010, (e) its letter dated 6 July 2010, and (f) its letter dated 20 July 2010. The Arbitral Tribunal also considered any other documents addressed to the Tribunal by the parties or exchanged between them and served to the Tribunal, as well as to any claims included in these documents.

6.

Having regard to the submissions, memoranda, pleadings and cross pleadings, as well as to the supplementary pleadings submitted on 24 September 2010, 15 October 2010 and 21 January 2011, and to other documents submitted together with the latter pleadings or during any other stage of the proceedings as well as to the claims and arguments developed by the parties orally during the hearing of 17 December 2010.

7.

It deliberated, according to the law, the ICC Rules and the agreements of the parties.

8.

A Table of Abbreviations in attached as Annex A and is an integral part of this Award.

1.

This Award refers to the parties set out on the first page and is made by the Arbitral Tribunal composed by the arbitrators referred to in the above paragraph A.

2.

The full address of the arbitrators and the parties, as well as the details and the addresses of their authorised lawyers, the documents instituting the proceedings, the composition of the Arbitral Tribunal, and the brief summary of the background of the dispute are set out in the Terms of Reference signed by the parties on 21 July 2010 ("Terms of Reference") and specifically in paragraphs 1, 2, 3, 4 and 7(a). Paragraphs 14 are as follows:

"1. The Arbitral Tribunal

The arbitral tribunal is composed of:

(a) Grigorios I. Timagenis Lawyer LL.M, Ph.D.
(Chairman of the Arbitral Tribunal)
57 Notara Str., 8th floor
185 35 Piraeus
Greece
Tel.:+30-210-4220001
Fax.:+30-210-4221388
E-mail: git@timagenislaw.com

(b) Dionysios Kondylis Emeritus Judge of the Supreme Court (Areios Pagos) (Co-arbitrator nominated by the Claimant)
23 Amaryllidos Str.,
153 41 Aghia Paraskevi
Greece
Tel.:+30-210-6399621
Fax: +30-210-6399621
E-mail: d-kondil@otenet.gr

(c) Styliani Charitaki Legal Counsel of the State
(Co-arbitrator nominated by the Respondent)
10 Karageorgi Servias Str.,
101 84 Athens
Greece
Tel.: +30-210-3375190, 3375039 (secretariat 210-3375221)
Fax: +30-210-3375040
E-mail: ns.symv3@vo.syzefxis.gov.gr

2. Documents Instituting the Proceedings

This arbitration was instituted by the Claimant’s submission of the Request for Arbitration dated 16 June 2009, to which the Respondent answered with its Answer to the Request dated 25 September 2009 following an extension granted by the Secretariat of the International Court of Arbitration of the ICC in its letter dated 27 August 2009 addressed to the parties.

3. Composition of the Arbitral Tribunal

The Arbitral Tribunal is constituted as follows:

(a) On 3 September 2009, pursuant to Article 9(2) of the ICC Rules of Arbitration, the Secretary General of the International Court of Arbitration of the ICC confirmed as coarbitrator Mr. Dionysios Kondylis, who was nominated by the Claimant in its Request for Arbitration dated 16 June 2009.

(b) On 3 September 2009, pursuant to Article 9(2) of the ICC Rules of Arbitration, the Secretary General of the International Court of Arbitration of the ICC confirmed as coarbitrator Mrs Styliani Charitaki, who was nominated by the Respondent in its document dated 6 August 2009 (Protocol No. 87774/457380).

(c) The two arbitrators who were nominated by the parties failed to nominate the Chairman of the Arbitral Tribunal, and consequently the International Court of Arbitration of the ICC appointed Mr. Grigorios I. Timagenis, holder of a PhD, Lawyer, as Chairman of the Arbitral Tribunal, following a recommendation by the Greek Committee of the ICC (Articles 8(4) and 9(3) of the Rules of Arbitration of the ICC).

4. The parties to this Arbitration and their authorised lawyers

The parties to this arbitration are as follows:

(a) Claimant

SCIENCE APPLICATIONS INTERNATIONAL CORPORATION,
1710 SAIC DRIVE, McLean, VA, 22102,
United States of America

Its authorised lawyers are as follows :

1. Messrs. Allen B. Green and William T. O’ Brien
McKenna Long & Aldridge LLP
1900 K Street NW
Washington, DC 20006-1108
United States of America
Tel.:+1 202,496.7107
Fax: +1 202,496.7756
E-mail: wobrien@mckennalong.com and agreen@mckennalong.com

2. Mr. Grigorios Pelekanos
Ballas, Pelekanos & Associates
10 Solonos Str., Kolonaki
106 73 Athens
Greece
Tel.: 210 3625943
Fax: 210 3647925
E-mail: gregory.pelecanos@balpel.gr

3. Mr. Epameinondas Lampadarios
Lampadarios and Associates
3 Stadiou Str.
105 62, Athens
Greece
Tel.: 210 3224047
Fax: 210 3226368
E-mail: lambalaw@lambalaw.gr

and

(b) Respondent

Greek State, as legally represented by the Minister of Finance and the Minister of Civil Protection
68 Akadimias Str.
106 78 Athens
Greece
Tel.: 210 3804971
Fax: 210 3328180
E-mail: n.poulakos@nsk.gr

Its authorised lawyers are as follows :

1. Mr. Dimitrios Chanis (Legal Counsel of the State)
2 Paparrigopoulou Str., 105 61 Athens, Greece
Tel.: +30 210 3252977 and +30 210 3368747 / Fax: +30210 3231964
Mr. Dimitrios Katopodis
(Associate Judge of the Legal Council of the State)
Mrs Georgia Papadaki
(Associate Judge of the Legal Council of the State)
3 Akadimias Str.
106 71 Athens
Greece
Tel.: 210 3682541
Fax: 210 3682221
E-mail: georgiapapadaki@mfa,gr

2. Potamitis, Vekris, Bersis, Papadiamantis Law Firm
Paparrigopoulos Ioannou,
Attn: Stathis Potamitis, Xenophon Paparrigopoulos, Vicky Psalti
9 Neophytou Vamva
106 74 Athens
Greece
Tel.: 210 3380000 Fax: 210 3380020 E-mail: stathis.potamitis@potamitisvekris.com,
xenophon.paparrigopoulos@potamitisvekris.com,
vicky.psaltis@potamitisvekris.com

(The Claimant and the Respondent shall be referred to hereinafter as the "parties")."

3.

For the legalisation of their authorised lawyers, the following documents were submitted to the Arbitral Tribunal by the parties:

(a) By the Claimant, the power of attorney dated 24 May 2010 (in English, together with its lawful translation in Greek with an Apostille dated 26 May 2010) which was signed by Lawrence E. Ruggiero, Vice-Chairman and Assistant General Legal Advisor, as legal representative of the Claimant, in the presence of the Notary Public of the State of Virginia in the USA, Kaye Elliot Endahl, and

(b) by the Respondent, the documents of the Chairman of the Legal Council of the State dated 6 August 2009 (protocol no. 87775/457380), 11 December 2009 (protocol no. 136444/457380) and 17 June 2010 (protocol no. 69270/457380), as well as the decision of the Minister of Finance dated 14 July 2010 (protocol no. 10107).

4.

Except for the abovementioned persons, Ioannis-Dionysios Filiotis, Lawrence Ruggiero, Prokopios Dimitriadis, Charikleia Daouti and Konstantinos Lampadarios also attended the hearing of the case on behalf of the Claimant, appointed under the e-mail dated 9/12/2010 which was sent to the Chairman of the Arbitral Tribunal by Mr. Epameinondas Lampadarios, as authorised under the abovementioned power of attorney.

5.

Finally, the Administrative Secretary of the Arbitral Tribunal Mr. Ioannis Timagenis, who was appointed under the Decision of the Arbitral Tribunal dated 18 November 2010, also attended the meeting.

6.

During the hearing, recorded and stenographic minutes were kept.

7.

After the end of the hearing, the there was fixed the 21st January 2011 as the date for the submission of supplementary pleadings by the parties and for the closing of the proceedings. By the submission of such pleadings the proceedings for the preliminary issues were closed and the Arbitral Tribunal proceeded to the consideration of the case and the issue of an interim award for the preliminary issues.

8.

After the Arbitral Tribunal was constituted, the file of the case was forwarded to the arbitrators who received it on 15/12/2010. At the same time, the International Court of Arbitration of the ICC, by its decision which was taken at the meeting of 7/1/2010 (which was notified to the Arbitral Tribunal on 8/1/2010), set a time limit for the drafting of the Terms of Reference until the 31/3/2010. This time limit was later extended sequentially until the 30th of April 2010, the 31st of May 2010, the 30th of June 2010 and the 31st of July 2010, by decisions of the International Court of Arbitration of the ICC which were taken at its meetings of 4/3/2010, 1/4/2010, 6/5/2010 and 3/6/2010 respectively (which were notified to the Arbitral Tribunal on 22/3/2010, 21/4/2010, 28/5/2010 and 24/6/2010 respectively).

The Terms of Reference were signed on 21st of July 2010 and the time limit which is provided for by the Rules for the issuance of the award was extended sequentially until the 30th of April 2011 and the 31st of July 2011 by decisions of the International Court of Arbitration of the ICC at its meetings which were held on 13/1/2011 and 7/4/2011 respectively (which were notified to the Arbitral Tribunal and to the litigant parties by email on 13/1/2011 and by letters on 28/1/2011 and 19th April 2011 respectively).

(a) During the deliberation, the Arbitral Tribunal decided by a majority that it has the jurisdiction to determine the disputes arising between the parties from the contested agreement under the arbitration clause included in article 28.3, which is valid, and thus rejected any objections to the contrary submitted by the Respondent in accordance with the following paragraphs of Chapter D and in the operative part of this Award.

(b) The majority opinion regarding the reasoning is included in the following paragraphs, while the dissenting opinion and any different opinions or supplementary reasoning are set out in Chapter F below.

The jurisdiction of the Arbitral Tribunal is prima facie based on the arbitration clause ("Arbitration Clause") of article 28 para. 3 of Agreement No. 020A/03 dated 19 May 2003 which was signed between the parties for the Supply of the C41 System for Olympic Security and the Related Products and Services, and which stipulates that:

"All claims or disputes arising out of or in connection with the present AGREEMENT or its interpretation, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) and shall be decided under the Greek Law. The arbitration shall be conducted by three Greek arbitrators, appointed pursuant to the Rules of the International Chamber of Commerce, where one arbitrator shall be nominated by the PURCHASER, one arbitrator shall be nominated by the CONTRACTOR and the third Arbitrator, acting as Chairman, shall be nominated by the two nominated arbitrators or, in case of disagreement, in accordance with the aforesaid Rules"

(a) The Respondent, in its Supplementary Answer dated 20 April 2010 and for the reasons stated therein, requested that the arbitration clause be declared invalid and thus that the Arbitral Tribunal lacks jurisdiction, notwithstanding that, in addition, according to paragraph 14 of the Terms of Reference dated 21 July 2010, it was agreed that a separate hearing would be conducted and a separate decision rendered for some Preliminary Issues, including the invalidity of the arbitration clause. The Claimant, according to its documents and written submissions referred to above under A4 and 5, requested that the aforesaid request of the Respondent be rejected.

(b) Pursuant to article 6, para. 2 of the Rules of Arbitration of the International Court of Arbitration of the International Chamber of Commerce, the Arbitral Tribunal is empowered to decide on its own jurisdiction. Notwithstanding any relevant request by the Respondent, the Arbitral Tribunal must examine and decide of its own motion regarding its jurisdiction before the examination of any other preliminary issue or of the merits of the dispute.

Given that, pursuant to both the arbitration clause and the Terms of Reference (paragraph 10), the place of this arbitration is in Athens, the Greek law shall apply to this dispute, regarding both the validity of the arbitration clause and the jurisdiction of the Arbitral Tribunal.

Pursuant to paragraphs 1 and 2 of article 94 of the Constitution of Greece (hereinafter the "Constitution"):

"1. The hearing of administrative disputes belongs to the jurisdiction of the Council of State and the ordinary administrative courts, as provided by law, subject to the powers of the Court of Audit.

2. Civil courts shall have jurisdiction on all private disputes, as well as on cases of voluntary jurisdiction, as provided by law."

Based on the aforesaid provisions, it is clear that a dispute, administrative or private, is exempt from the jurisdiction of the courts as provided by the Constitution, and an agreement between the parties to this effect (arbitration clause) is valid, only if this is provided by law ("as provided by law"). Regarding private disputes which may be referred to arbitration, according to the Civil Procedure Code (CPC), it is always accepted (without any contrary opinion) that the parties may agree to refer them to arbitration in accordance with article 867 CPC and its requirements. More specifically, if one of the parties is the Greek State, then the dispute may be referred to the arbitration based on the CPC under article 49 of the Introductory Law to the Civil Procedure Code and its requirements.

(a) It was, however, argued that administrative disputes cannot be referred to arbitration (and therefore that the related arbitration clause is invalid) even if this is provided or permitted by law, and in particular it was argued that such law may be forbidden by the constitution.

(b) Decision No. 24/1993 of the Special Supreme Court resolved this issue, stating that according to the true meaning of article 94 para. 1 of the Constitution, the legislator may permit administrative disputes to be referred to arbitration upon an agreement of the parties and that the related law is not forbidden by the constitution.

(c) Given the above, it is accepted that administrative disputes may also be referred to arbitration, if the law permits. However, there is no general provision permitting administrative disputes to be referred to arbitration, such as articles 867 CPC and 49 of the Introductory Law to the Civil Procedure Code, and therefore there must be a case by case examination of whether there is any law permitting the specific category of administrative disputes to be referred to arbitration given that, without a legislative basis, the arbitration clause shall be invalid as it directly contradicts the aforesaid provision of the Constitution.

The Respondent has already raised the objection regarding the invalidity of the arbitration clause in its Supplementary Answer dated 20/4/2010, and not only was this objection specifically developed in its written submissions and pleadings referred to above (under A5), but also orally during the hearing of 17 December 2010, while the Claimant developed its arguments regarding both the belated submission and inadmissibility of the aforesaid objection as well as the merits of this objection in its letter dated 30/4/2010 and in its other letters, written submissions and pleadings referred to above (under A4 and 5 respectively), and also orally during the hearing of 17 December 2010 and pleaded the validity of the arbitration agreement.

The current section specifically refers to the Arbitral Tribunal’s own-initiative examination regarding its jurisdiction, while in the context of this examination, answers regarding the related claims of the parties are also provided.

Given the above, the Arbitral Tribunal must investigate, on its own initiative, during the examination of its jurisdiction, whether this dispute is private or administrative and in the latter case whether there is any law permitting the dispute to be referred to arbitration or, irrespective of the fact that the dispute may be private or administrative, whether there is any legislative basis permitting the dispute to be referred to arbitration. Specifically regarding the latter issue, it must investigate whether Law 2735/1999 on international commercial arbitration constitutes a legislative basis for the validity of the arbitration clause included in the contested agreement, an issue which has already been raised by the Claimant in its Submissions dated 21 January 2011.

It is apparent that the Arbitral Tribunal must firstly decide if the requirements for the application of article 1 of Law 2735/1999 are met, and more specifically whether this arbitration is international and commercial according to the meaning of this provision. It must be noted that in order to decide upon this matter, it is not necessary that the Tribunal examine whether the contested dispute is administrative or not, since a dispute only needs to be categorised as administrative, or as international or commercial, in the context (interpretation) of specific provisions in order to establish whether their requirements have been met, and thus the corresponding legal consequences may be imposed. Therefore, a court may examine essentially whether a dispute is administrative when interpreting article 1 of Law 1406/1983 or article 94 para. 1 of the Constitution, or any other provisions which contain the term ‘administrative dispute’. However, in this specific case, article 1 of Law 2735/1999 is the subject-matter of the interpretation, which contains the terms "international" and "commercial" and not the term "administrative dispute". Consequently, a dispute, which according to other provisions may be administrative, may be "international" or "commercial" in the context of the interpretation of article 1 of Law 2735/1999 without this contradicting the different categorisation of this dispute in the context of the interpretation of other provisions. The independent interpretation of article 1 of Law 2735/1999 is also supported by the fact that this law essentially transposes into the Greek law an international model, specifically the UNCITRAL Model Law for international commercial arbitration.

1.

Pursuant to article 1 of Law 2735/1999 on the commercial arbitration "the provisions of this law apply.... to an international commercial arbitration, if its place is in the territory of the Greek State" (paragraph 1), "An arbitration is international if: a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different States..." (paragraph 2) and for the application of paragraph 2 "a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement, b) if a party does not have a place of business, reference is to be made to his habitual residence and if this party is a legal person, to the place where it has its office" (paragraph 3).

2.

Despite the wording of the law (using the definite article "the place of business" in article 1, para. 2a), which refers to the real registered office of a company, from where it exercises its administration as can be deduced from paragraph 3a of article 1, the law provides that a corporation may have more than one places of business, thus referring to branches (special commercial places) and not only to the place of its central administration where the important decisions for the corporation (registered office) are made, and which can only be one place.

3.

This can also be deduced from the English original text where the term used is "place of business". Furthermore, the same is evident from the preparatory works of UNCITRAL for the Model Law on International Commercial Arbitration (see Analytical Commentary on draft text of the Model Law on International Commercial Arbitration in the Report of the General Secretariat on the 18th Conference of UNCITRAL in Vienna, 3-21 June 1985 UN doc A/CN.9/264/25 March 1985, hereinafter Model Law Commentary), which states that the Model Law does not refer to the principal place of business or to the head office of its administration but to the branch with which a specific agreement was concluded (see Model Law Commentary, under article 1, para. 26 and 27). The same applies according to the United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980, Law 2532/1997, articles 1 and 10), the wording of which was also used by the Model Law on International Commercial Arbitration (see Model Law Commentary, under article 1 para. 24), and consequently the Convention on International Sale of Goods can be used for the interpretation of the latter, as can be the corresponding commentary of the United Nations Secretariat (see UN document A/CONF.97/5, hereinafter International Sales Commentary, under articles 1 and 9 of the Draft, already articles 1 and 10 of the Convention).

4.

At the same time, the law provides that reference is made to the place of business at the time of the conclusion of the arbitration agreement (article 1, para. 2(a), Law 2735/1999) and if a party has more of one places of business, then reference is made to the business which has the closest relationship to the arbitration agreement (article 1, para. 3(a), Law 2735/1999); such a case of closest relationship arises when the negotiations for the agreement were made entirely with a specific place of business, without taking into account the place where the contract was finally signed (Model Law Commentary, under article 1, para. 32, also see article 1, para. 2 of International Sale of Goods Convention, which notes that if it is not possible to establish the place of business in a given state based on the agreement or on any dealings between the parties, or information disclosed by the parties at any time before or upon conclusion of the agreement, such place is disregarded (see also article 10 of Convention on Contracts for the International Sale of Goods and International Sales Commentary, under article 9 of the draft, para. 7 which states that the place of closest relationship to the arbitration agreement would not be altered by any subsequent decision to perform the agreement at another place of business). Finally, the law (article 1 para. 3(b), Law 2735/1999) also refers to a place where a legal person has its office, but it does not consider this as a place of business. It must be noted that the UNCITRAL Model Law does not contain any similar provision, and that it only refers to the habitual residence.

5.

In this case, the contested agreement No. 020A/03, dated 19 May 2003, as can be deduced from its text, was concluded between the Greek State and the SAIC Company, which, as noted in the agreement, has its head offices at the city McLean in the State of Virginia in the USA. This agreement was signed on behalf of SAIC by its Senior Vice President Mr. Steven H. Weiss (under a power of attorney), who does not appear to have any place of business in Greece. Furthermore, no reference is made to any place of business of SAIC in Greece which might have been involved in the negotiations and the conclusion of the agreement. The address of 90 Kifisias Avenue, Amarousio, Attiki, referred to in article 30 of the agreement for the purposes of correspondence, even if it was the address of the place of business of the Claimant in Greece at that time, is referred to in relation to correspondence between the parties taking place after the conclusion of the Agreement (i.e. for the interpretation of the Agreement, para. 30(2)(1), for the implementation of the Agreement para. 30(2)(2) and for financial issues arising from the Agreement, para. 30(2)(2)) and it does not appear that any place of business of the Claimant in Greece may have been involved in the negotiations and the conclusion of the Agreement, while the place of business which is taken into consideration is the place of business at the time of the conclusion of the agreement and the place with the closest relationship to the agreement is the one which negotiated and concluded the arbitration agreement.

6.

Therefore, the place of business of the Claimant where according to the Agreement, this Agreement was negotiated and concluded, which fact is also supported by other evidence, is in the USA i.e. in another state from the state of the place of business of the Respondent, and therefore the arbitration is international, pursuant to the meaning of article 1 of Law 2735/1999.

1.

Article 1 para.1 of Law 2735/1999 expressly stipulates that the provisions of this law apply to the international commercial arbitration.

2.

The law does not provide any definition for the term "commercial". However, the Explanatory Notes of the Law state, inter alia, that:

"The same text of the original law, as drafted by UNCITRAL, refers to the following footnote in regard to the term "commercial", which widens its interpretation to be considered as "financial".

"The term "commercial" should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature, whether contractual or not. Relationships of a commercial nature include, but are not limited to, the following transactions:

Any trade transaction for the supply or exchange of goods or services, distribution agreement, commercial representation or agency, factoring, leasing, construction of works, licensing, investment, financing, banking, operating agreement or concession, joint venture and other forms of industrial or business cooperation, carriage of goods or passengers by air, sea, rail or road."

For legislative technique reasons this footnote was not included in the text of the proposed law, as predetermined by various countries when adopting the model law as national law. However, it is still used for the interpretation of the term "commercial".

3.

Furthermore, the Model Law Commentary, commenting on article 1, mentions that the footnote concerning the term "commercial" was added as an interpretation tool for this term (paragraph 16) and expresses the legislative intent to construe the term "commercial" in a wide manner (paragraph 18). It is also noted that this footnote points to an independent interpretation of the term "commercial" and does not refer to the national laws for the characterisation of a relationship as commercial, as does the New York Convention 1958 "on the Recognition and Enforcement of Foreign Arbitral Awards" (law 4220/1961) in its article 1, paragraph 3, and that it would be erroneous to apply national notions regarding the characterisation of a relationship as commercial (paragraph 19). Finally, it is clarified that although the Model Law does not refer to the matter of the state immunity, the Model Law also covers relationships in which a state body or a state entity may be a party in an agreement under the condition that the relationship is of a commercial nature (paragraph 21).

4.

In addition, it is noted that historically the term of "international arbitration", without any other determining factor, refers to arbitrations of the (public) international law specifically between States and therefore by adding the term "commercial", this arbitration can be distinguished from the arbitration of the international law between States¹ and notwithstanding that the implication of traders is an indicative element, this is not crucial since the States can also participate in a commercial arbitration in the context of a commercial activity².

5.

Furthermore, it has been noted that the notion of commerciality is so wide that it covers in essence any financial dispute³ and, under this concept of commerciality, any disputes in which public entities participate which arise from their national commercial transactions must be included in the concept of the international commercial arbitration, since the public character of these entities does not usually affect the rules which govern an agreement or an international arbitration in which they participate⁴.

6.

In this case, the contested agreement is a contract of sale of goods and provision of services and the arbitration for any disputes arising therefrom clearly falls within the concept of the commercial arbitration, as defined in article 1 of Law 2735/1999 on international commercial arbitration, and as this concept is clarified by the explanatory note of this law, the corresponding footnote of the UNCITRAL Model Law and the Model Law Commentary as referred to above. [In addition, this independent interpretation of the term "international commercial arbitration" in Law 2735/1999 is not influenced by, nor does it influence, any interpretation or characterisation of this relationship in the context of any interpretation of any other law.]

7.

Furthermore, and irrespective of the characterisation and the submission of this arbitration to article 1 of Law 2735/1999, the Respondent itself, both during the conclusion of the arbitration agreement (and irrespective of its permissibility or its validity) and also during the stage of the negotiations and the conclusion of the contested supply agreement, was considering any disputes arising from this agreement to be international commercial disputes, and for this reason it agreed to an arbitration of the International Chamber of Commerce (ICC) in relation to which article 1, paragraph 1, of the Rules of Arbitration stipulates that the function of the International Court of Arbitration of the ICC is "to provide for the settlement by arbitration of business disputes of an international character".

8.

It must be noted that the referral of any disputes to arbitration according to the Rules of Arbitration of the ICC is included not only in the contested contact for the supply of the C4I systems but also in the decision of the Minister of National Defence which ratified the supply of the C4I Olympic Security Systems (Φ600/An 9092 Σ.16 13 May 2003, paragraph 24). Furthermore, it is certain that this term was also the subject-matter of negotiations since, even though the call for tender regarding the provision of the C4I Olympic Security Systems (Decision of the Ministry of National Defence -YPETHA -Φ600/44139 Σ.23 6 September 2002) provides for the settlement of disputes by arbitration (paragraph 16), it does not refer to the arbitration of the ICC, although this was finally included in the award decision. Therefore, these elements must also be taken into consideration when examining the true intent of the parties both under the subjective criterion (article 173 of Civil Code) and the objective criterion (article 200 of Civil Code), which leads to the conclusion that (and irrespective of the direct application of article 1 of Law 2735/1999) according to the understanding and the intent of the parties, any disputes arising from the contested agreement would be commercial and subject to this arbitration.

1.

Given the above (under C11 and Cl2), this arbitration constitutes an international commercial arbitration according to the meaning of article 1 of Law 2735/1999 and is governed by the provisions of this law.

2.

However, there is an ambiguity in whether Law 2735/1999 constitutes a legislative basis for the conclusion of valid arbitration agreements, i.e. whether this falls within the meaning of the "law", as this term is used in paragraphs 1 and 2 of article 94 of the Constitution ("as provided by law").

3.

Accordingly, it must be noted that there is no issue and there has never been any different opinion or doubt expressed, neither in the theory nor in the case law, that Law 2735/1999 constitutes the legislative basis for private disputes as required by the Constitution (article 94, para. 2) in order to exclude private disputes from the jurisdiction of the civil courts and, upon agreement, submit them to arbitration. It must also be noted that it is generally accepted, without any expressed opinion or doubt to the contrary, that international commercial disputes, which according to other provisions (of the national law) are characterised as private, following the application of Law 2735/1999 (which is more recent than the Civil Procedure Law and more specific, since it only refers to particular private disputes, i.e. the international commercial disputes, while article 867 of Civil Procedure Law refers to all private disputes), are subject to Law 2735/1999 and not to the provisions of the Civil Procedure Code. Therefore, this law constitutes the legislative basis for the validity of the relevant arbitration agreements.

4.

Furthermore, to this day neither the case law nor the theory have examined the question whether Law 2735/1999 constitutes the basis for the submission to arbitration, upon agreement of the parties, of disputes which, under other provisions (such as article 94, paragraph 1 of the Constitution or article 1 of Law 1406/1983), are characterised as administrative disputes, but at the same time and irrespective of this, they fall, according to the above (under C 10-12), in the scope of article 1 as international commercial disputes and therefore in the scope of Law 2735/1999. However, similarly, the same conclusion as above must be reached regarding private disputes. Indeed, the wording of the first paragraph of article 94 of the Constitution regarding administrative disputes ("as provided by law") is similar to the wording of the second paragraph which concerns private disputes ("as provided by law") and law 2735/1999 is considered, without any doubt and without any opinion to the contrary, to be the legislative basis which is required by article 94 para. 2 of the Constitution for the conclusion of valid arbitration agreements. Consequently, it must also be accepted, without any doubt to the contrary, that the same law is the legislative basis which is required by the similar article 94 para. 2 of the Constitution for the conclusion of a valid arbitration agreement for this category of administrative disputes, i.e. for those which also fall in the meaning of international commercial disputes of article 1 of Law 2735/1999 (except for those which - as provided by article 1, paragraph 4 of Law 2735/1999 - are excluded by provisions of laws from arbitration proceedings, which does not appear to apply to this dispute, and no party has submitted any such request).

5.

From all the provisions of Law 2735/1999, it can be deduced that this law recognises the arbitration agreement as a reason for the exclusion of disputes which fall within the scope of article 1 of this law from the state courts and their submission to arbitration; according to these provisions, a pre-requisite is the submission of a dispute to arbitration based on not only the agreement provided in article 7 of the law, but also expressly stated in article 8 of this law (the "negative" effect of the arbitration agreement, see also Model Law Commentary, under article 8, para. 1), which stipulates that in cases where an arbitration agreement is valid, the court before which an action is brought shall refer the parties to arbitration (provided that the relevant request shall be submitted in a timely fashion), while article 9 stipulates that it is not incompatible with an arbitration agreement for the court to order interim measures, and therefore from this provision it appears a contrario that the arbitration agreement excludes the hearing of the substance of the dispute from the courts. Finally, article 7 of law 2735/1999 does not simply refer to the definition of the arbitration agreement, but also recognises it as "the most important legal document which constitutes the basis and the reason for an arbitration" (see also Model Law Commentary, under article 7, para. 1 and 2-4).

6.

However, the submission to arbitration of international commercial transactions (i.e. the international supplies) with the Greek State, according to article 1 of Law 2735/1999, also serves the interests of the Greek State, since in cases where such submission to arbitration, and specifically to an internationally accepted arbitration, was not permitted, many suppliers or service providers from abroad would hesitate to participate in tenders or negotiations with the Greek State, which would thus be deprived of the option to negotiate with a broader range of candidates and to select between better products and achieve better terms in its agreements.

7.

For this reason, many provisions of the Greek laws facilitate the conclusion of an arbitration agreement (and also other terms of agreements in contrast with any restrictions which apply to transactions of a purely national character) in the international transactions of the Greek State. Indicatively, we refer to the exclusion from the restrictions of article 49 of the Introductory Law to the Civil Procedure Code (i.e. the existence of an opinion by the Plenary of the Legal Council of the State) in the case of an international transaction (see article 8 para. 1 of law 736/1970 and judgment of Hellenic Supreme Court in Plenary (Areios Pagos) 8/1996 Elliniki Dikaiosyni 1996, page 1052, EEN 1996, page 32, END 1996, page 448, see also other similar provisions below under C14(13) (e) and C14(14) (e)).

8.

The fact that Law 2735/1999 does not expressly refer to administrative disputes cannot support the interpretation that this law does not cover such disputes (under the argument that if the law intended to cover these disputes it would have included a relevant provision), since Law 2735/1999 incorporates in the Greek legislation the UNCITRAL Model Law, i.e. an international text which could not refer to the differences of the Hellenic national laws and which furthermore consciously intended to disconnect the characterisation of the international commercial disputes from any characterisation under the internal national laws of any state (see also Model Law Commentary, under article 1, para. 19). Nevertheless, it intended to also include disputes with state entities (see also Model Law Commentary, under article 1, para. 21). Additionally, although Law 2735/1999 does not refer to private disputes, it is incontestable that private disputes are indeed covered by the provisions of this law. Finally, Law 2735/1999 - and the UNCITRAL Model Law as incorporated in the Greek law thereby - cannot be interpreted (i.e. the intent of the legislator cannot be understood) based on arguments derived from other laws such as Law 2717/1999 (Administrative Procedure Code), which does not contain any provisions regarding the submission of administrative disputes to arbitration (such as the Civil Procedure Code); compared to the latter, Law 2735/1999 is a more recent and specific law since, according to what was set out above, it refers to only a single category of administrative disputes, i.e. to those which also constitute international commercial disputes, according to article 1 of this law.

9.

Considering the above and that this arbitration (irrespective of its characterisation based on other provisions) is an international commercial arbitration and the dispute in question is an international commercial dispute, according to article 1 of Law 2735/1999, it is not deemed necessary to examine whether this dispute is a private or an administrative dispute according to paragraphs 1 and 2 of article 94 of the Constitution since, in both cases, this dispute may be lawfully submitted to arbitration by an agreement, while this arbitration agreement is valid and the legal basis for this is Law 2735/1999.

1.

Additionally, the arbitration agreement (clause) included in article 28 of the contested agreement is valid pursuant to article 69 paragraph 7 of presidential decree 284/1989⁵ regarding the supplies of the Armed Forces, which was in force at the time of the conclusion of this agreement (presidential decree 284/1989 was abolished by article 71 of Law 3433/2006) and according to the terms of which the contested agreement was lawfully signed.

2.

In particular, article 1 of presidential decree 284/1989 stipulates that: "This Presidential Decree exclusively governs the procedures regarding the supplies, contracts, works and service provision, carried out internally or abroad under the care of the Ministry of National Defence in order to fulfil its needs of any kind".

3.

In addition, article 1, para. 1 of Law 2292/1995, regarding the organisation and operation of the Ministry of National Defence, stipulates that: "The National Defence includes all operations and activities developed by the State in order to protect its integrity, national independence and sovereignty, as well as the security of the citizens against any external attack or threat, and the support of the national interests", while paragraph 3 of this article provides that "the Governmental Committee for National Defence (KYSEA) is the main body to decide upon issues concerning the exercise of the defence policy" and article 3 of the same law (powers of KYSEA) provides that KYSEA has the power to approve "the major programmes for the supply and production of equipment and materials of defence" (case c) and to decide "upon issues for which the co-operation of more than one ministry is required" (case r).

4.

Additionally, article 5, para. 1 of Law 2833/2000 stipulates that: "The security of the Olympic Games belongs to the Hellenic Police, at the Headquarters of which a specific service is constituted under the title "Olympic Games Security Directorate" to supervise the executive planning and to coordinate the bodies which are responsible for the order and security and which participate in the preparation and operation of the 2004 Olympic Games", while paragraph 2 of the same article stipulates that: "2. In order to execute its mission, the abovementioned Directorate shall cooperate with all the bodies involved in the preparation and operation of the 2004 Olympic Games. The subject-matter and the method of this cooperation as well as any related issue thereto shall be regulated by common decisions issued by the Minister of Public Order and the Minister of Culture and the applicable competent Ministers."

5.

Finally, article 1 of Law 2800/2000 regarding the Ministry of Public Order (now Ministry of Civil Protection) provides that: "The Ministry of Public Order, in the context of the Constitution and the laws, is commissioned with: a) The establishment and preservation of the public order, b) the protection of the public and state security."

6.

From the abovementioned provisions, it can be deduced that the security of the Olympic Games was conferred under article 5 of Law 2833/2000 to the Hellenic Police and therefore it was essentially within the powers of the Ministry of Public Order,. according to its constitutional law. However, this assignment was not exclusive, since from article 5 of Law 2833/2000 (paragraphs 1 and 2) it appears that the established Olympic Games Security Directorate had the power "to coordinate the bodies which are responsible for the order and the security" (para. 1) and "In order to execute its mission, the abovementioned Directorate shall cooperate with all the bodies involved..." (para. 2), whereas YPETHA was incontestably amongst these bodies, since the protection "of the security of the citizens against any external attack or threat" (article 1 para. 1 of Law 2292/1995) was one of its powers, while the Olympic Games Security measures were clearly aiming to also protect the citizens from external attacks during the Olympic Games.

7.

Therefore, KYSEA, as the competent governmental body for regulating issues which fall within the powers of YPETHA and for which the cooperation of more than one ministry is required (article 3 para. 3, case r of Law 2292/1995), lawfully and within its powers (a) authorised YPETHA, under its decision 1/23.1.2003, to proceed to directly negotiate with each participant in a previous unsuccessful procedure for the award of the implementation of the C4I Olympic Security programme, pursuant to presidential decree 284/1989, in accordance with articles 6(2i), 71 (lb) and 73 (lb) (13) (lg), which are expressly referred to in this decision and also in accordance with the provisions of articles 71 (la) (le), 73(1h) and 76(1) (3), not referred to in the decision, based on which decision Φ.600/9024/Σ3 dated 29/1/2003 of the Ministry of National Defence was issued, approving the implementation of the program (para, lb) and characterising the programme as "confidential" and "urgent", (b) selected, under its decisions No. 2 dated 27/2/2003, SAIC Team as the contractor to proceed with the negotiations, and (c) decided, under its decision No. 1/13.3.2003 to award the implementation of the C4I programme to the SAIC Team against the amount of 254,999,000 Euros.

8.

Furthermore, the Minister of National Defence (based on the aforesaid decisions and the aforesaid laws) lawfully awarded the supply of the C4I Olympic Security Systems to the Science Applications International Corporation (i.e. to the Claimant) under its decision Φ.600/An.9092/Σ.16 dated 13 May 2003, to which 26 documents are annexed (a-z) which are referred to in the previous proceedings, while paragraph 1 of the decision lists a number of applicable provisions (a-j) amongst which is presidential decree 284/1989 "regarding supplies, contracts and works of the Greek State" (under i) and its enabling law, i.e. Law 721/1970 "Regarding the Financial Care and Accounting of the Armed Forces" (under a).

9.

Given the above, it is indisputable that the contested agreement was the subjectmatter of negotiations and was concluded according to the provisions of presidential decree 284/1989, and that this was made lawfully following the lawful procedures according to the abovementioned analysis.

10.

In addition, article 69 (dispute resolution) of presidential decree 284/1989, in its paragraphs 1-6, stipulates an administrative procedure for the resolution of some specific disputes particularly in relation to the delivery of supplies. Given that paragraph 7 provides as follows: "Specifically for supplies of major importance, the procedure for the dispute resolution is defined in the relevant agreement. In this case, an equivalent provision shall be stated in the specific terms of the call of the corresponding tender", a question arises as to whether this provision constitutes a legislative basis for the validity of the arbitration agreement (clause) which is included in article 28 of the contested agreement.

11.

Regarding this issue, it must firstly be noted that the wording of the provision of paragraph 7, article 69 of presidential decree 284/1989 is clear ("for supplies of major importance, the procedure for the dispute resolution is defined in the relevant agreement") and it is undeniable that the supply of the C4I Olympic Security System is "a supply of major importance", while the resolution of disputes by arbitration is provided both in article 16 of the call for tender dated 6 September 2002 (YPETHA decision Φ.600/44139/Σ.23 of 6 Sept. 2002 issued following the decision dated 12/6/2002 of the Inter-Ministerial Committee for the Coordination of the Preparations for the Olympic Games - DESOP however it also has a legislative basis on the abovementioned provisions regarding the partial authority of YPETHA), and in article 24 of the award decision for the Supply (YPETHA decision Φ.600/AII 9092/ΦΣ.16 dated 13 May 2003).

12.

The Respondent, however, claims that paragraph 7 of article 69 of presidential decree 284/1989 does not constitute a legislative basis for the valid conclusion of an arbitration agreement (and therefore the arbitration clause included in article 28 of the contested agreement is invalid) because this paragraph must be interpreted in a restrictive manner, due to its position in article 69 which (in its entirety) only refers to the administrative resolution of some specific disputes (specifically in relation to the delivery of supplies) and therefore, although a different procedure for the resolution of disputes may be provided for supplies of major importance, this procedure always refers to disputes which are similar to those disputes referred to in the previous paragraphs, and which concern the delivery of supplies, while this is always an administrative procedure similar to that which is provided by the previous paragraphs of the same article 69.

13.

(a) This systemic interpretation, however, i.e. an interpretation on the basis of the position of a provision, as attempted by the Respondent which, notwithstanding that in some cases it can constitute an interpretation tool when seeking the meaning of a provision, is insufficient to justify a restrictive interpretation (in particular of a provision which is so clear) unless it is used in conjunction with other interpretation approaches, and specifically with a teleological interpretation.

(b) In addition, even based on a systemic approach, it must be noted that paragraph 7 (in an article entitled "dispute resolution") is at the end of the article with the obvious intention to distinguish (and differentiate as to the legal consequences, i.e. to apply different procedures for the resolution of the disputes) between supplies of major importance, and therefore the legislator intended an a contrario interpretation of paragraph 7 in relation to the previous paragraphs. It does not appear to provide convincing arguments to support that this different procedure for the resolution of the disputes (which paragraph 7 certainly intends), and which shall be agreed upon in the agreement, must be subject to some restrictions (as to the type of dispute, i.e. in regard to the delivery, and as to the type of resolution, i.e. an administrative one) based on the previous paragraphs.

(c) The fact that an eighth paragraph was subsequently added (under article 31 of presidential decree 189/1997), which refers once more to the Dispute Resolution Committees (expenditures), cannot support that paragraph 7 refers to similar dispute resolution proceedings, firstly because it is still certain that paragraph 7 purposefully intended to establish a different method of dispute resolution for supplies of major importance, and furthermore in a manner which is agreed upon in the agreement, and secondly the systemic interpretation is important for some laws with dogmatic cohesion, while the addition of a paragraph subsequent to paragraph 7, which paragraph should potentially have been present from the outset, may very well be deemed as a legislative error.

(d) Furthermore, the historical interpretation (i.e. what the previous presidential decree 785/1978 provided for) may assist in the interpretation, given that presidential decree 284/1989 indeed intended to amend and supplement (and rephrase) presidential decree 785/1978. Indeed, presidential decree 785/1978, in its article 69, paragraph 6 (the last sentence of which was similar to paragraph 7 of article 69 of presidential decree 284/1989) provided that: "More specifically, in case of supplies of major importance from abroad, the abovementioned Committee shall be constituted as provided by the relevant agreement, which may also examine any dispute regarding the interpretation and implementation of the agreement".

(e) This provision defines (teleological interpretation) its purpose (which once again proves that the legislator prefers to follow arbitration proceedings for international disputes of the public sector) and the purpose of the amended provision (i.e. of paragraph 7 of article 69 of presidential decree 284/1989) as well as the purpose of the amendments. It is indeed clear that the purpose of the last sentence of paragraph 6 of presidential decree 785/78 was to ensure that, for the resolution of disputes regarding the supplies "of major importance" "from abroad', the committee would not be constituted in accordance with the provisions of the presidential decree for other supplies, but "as provided by the relevant agreement" (and therefore, for instance, in accordance with the agreement, it could be constituted as provided by the ICC Rules of Arbitration), and that it may "examine any dispute regarding the interpretation and implementation of the agreement" (i.e. to have the full powers of an arbitration such as this arbitration provided by article 28 of the agreement).

(f) The reason for this regulation is evident and is referred to in paragraphs Cl3(6) and (7) above, i.e. for supplies of major importance many firms from abroad were unwilling to accept the resolution of disputes by the committees of the presidential decree or by the courts (which was ultimately detrimental to the interests of the Greek State, since the number of its candidates-suppliers was limited, and thus it would not have the opportunity to achieve better supplies at better terms) and for this reason presidential decree 785/78 allowed the parties to agree upon the constitution of committees which could resolve all disputes arising from the agreement. The fact that this provision of presidential decree 785/1978 (i.e. an arbitration by committees with agreed composition and with subject-matter the resolution of all disputes arising from the interpretation and implementation of the agreement) is included in the last sentence of paragraph 6 of article 69 (which, as to the remaining, refers to the administrative resolution of disputes regarding the delivery), proves that the position of a provision (restrictive interpretation) is less relevant that its wording (grammatical interpretation) in combination with its purpose (teleological interpretation).

(g) By amending presidential decree 284/1989, paragraph 7 of article 69, the legislator in fact widened (clearly in favour of the Greek State) the previous regulation so that firstly, this regulation may apply to all supplies of major importance (i.e. even if these supplies are made by firms abroad) and secondly, the agreement of the parties may regulate not only the composition of the committees but also in general the method for the resolution of the disputes (i.e. either by the ordinary courts or by arbitration proceedings) and in case of arbitration, the type of the arbitral tribunal and the entire proceedings without imposing by (new) paragraph 7 any restrictions as to the subjectmatter of the arbitration.

(h) Therefore, interpreting presidential decree 284/1989 (article 69, para. 7) a contrario to presidential decree 785/1978 (article 69 para. 6) and concluding that the legislator, with the amendment of presidential decree 284/1989 and despite the clear wording of the provision, intended not to widen the previous provision but to restrict it, so that supplies of major importance may not be submitted to arbitration for every dispute with agreed upon bodies for the resolution of the disputes, does not pursue any objective, and such a contrario interpretation without any connection to any teleological interpretation, must not be accepted, since it leads to erroneous conclusions.

(i) Given the above, it is obvious that a restriction of the clear wording and spirit of paragraph 7 of article 69 of presidential decree 284/1989 is not justified.

14.

(a) However, given that law 284/1989 is a presidential decree, and as long as a valid agreement upon which a dispute is transferred from the jurisdiction of courts to arbitration may only be concluded by law (according to article 94 para. 1 and 2), it remains for us to examine the legislative delegation for presidential decree 284/1989, and specifically with reference to whether it permits the conclusion of an arbitration agreement for disputes arising from agreements concluded in accordance with the proceedings of presidential decree 284/1989.

(b) It must also be noted that presidential decree 284/1989 was issued by the authority of paragraph 5 of article 50 of presidential decree 721/1970. More specifically, paragraph 5 provides inter alia as follows:

"5. By Royal Decrees, issued following proposals by the Ministers of National Defence and Economics, the following is provided regarding supplies, contracts and works, carried out nationally or abroad by the Directorates of the Armed Forces:"
…
"k. The procedure for the tenders, the award of the contracts, the submission and hearing of objections."
…
"n. The method of checking and delivering, rejecting supplies, arbitration, as well as the constitution, the purpose and operation of the central or peripheral committees for the acceptance, checking and arbitration."
…
"u. The specific terms and the proceedings for some supplies from abroad, by exception from the provisions regarding the supplies of the Armed Forces. "
…
"v. The remuneration paid to the military officers in general, civil officers and persons employed by other services which participate in committees for conducting tender proceedings, expert opinions, delivery acceptance procedures and arbitration proceedings."
…
"x. Any other relevant provision and details."

(c) Based on these provisions, an authorisation is granted to define by royal, and now presidential, decrees the "method...of arbitration" (case n) and reference is made to "persons employed by other services" which may participate "in committees for conducting... arbitration proceedings" (case v).

(d) In this case, once again, the restrictive interpretation of the term "arbitration" cannot be supported under the argument that the original, and furthermore absentminded, legislator of presidential decree 721/1970 (and specifically the enabling legislative provision of paragraph 5 of article 50) did not confer a wider authorisation for arbitration, but it exclusively referred (and thus restricted its authorisation) to the restricted and advisory arbitration of article 16 of law 654/1937 (A 162), which was a text adopted 33 years earlier and in an era when the binding arbitration agreement was not widely accepted in private disputes, i.e. only in commercial disputes (see Civil Procedure i.e. Law 2/14 Apr. 1834 article 106-110)⁶, and furthermore since the same enabling legislative provision (i.e. paragraph 5 of article 50 of law 721/1970) was used as a legislative basis for the arbitration of the last sentence of paragraph 6 of article 69 of presidential decree 758/1978, which concerned supplies from abroad and established a binding arbitration for all disputes arising from the agreement, with a composition of arbitration committees based on the agreement between the parties which, as referred to above, widened the meaning of presidential decree 284/1989.

(e) Furthermore, and irrespective of what is referred to above, case u of paragraph 5 of article 50 of law 721/1970 enables the regulation of specific terms and proceedings "for some supplies from abroad, by exception from the provisions regarding the supplies of the Armed Forces" (and this is one more provision which grants more discretion for the conclusion of international agreements, including arbitration in contrast with other provisions) whereas case x stipulates that the decrees which shall be issued may provide for "any other relevant provision" including the agreement for arbitration as a relevant provision.

(f) Given the above, the legislative authority for paragraph 7 of article 69 of presidential decree 284/1989 (but also the legislative basis for arbitration clauses) is set out in not only in cases n and v of paragraph 5 of article 50 of law 721/1970 but also in cases u and x of the same paragraph, which is further reinforced by the fact that the contested agreement was concluded on the basis of the exceptional provisions of articles 71, 73 and 76 of presidential decree 284/1989, which permit "the delivery of supplies by exception from ordinary proceedings" (article 71 para. 1) and under "direct contracting of a supply without call for tender" (article 73 para. 1) and without any restriction as to the content of the relevant agreements, thus permitting the arbitration agreement.

(g) Therefore, paragraph 7 of article 69 of presidential decree 284/1989 constitutes the legislative basis for the conclusion of a valid agreement for the submission to arbitration of disputes arising from agreements of major importance which were concluded pursuant to presidential decree 284/1989, and accordingly of the arbitration clause which is included in article 28 of the contested agreement. Furthermore, articles 71 para. 1 and 73 para. 1 constitute the legislative basis for permitting such arbitration agreement; these articles in some cases (such as in this case) permit, in the interest of the Greek State, the direct contracting of a supply by exception from the ordinary proceedings and without any restrictions as to the content of the relevant agreements. Consequently, the arbitration clause of article 28 of the contested agreement is valid.

(h) In addition, since the Respondent itself included the arbitration agreement both in the original call for tender and in the decision for the awarding of the supply agreement, and then finally in the contested agreement, it is clear that the Respondent accepted that article 69 para. 7 and the provisions of presidential decree 284/1989 in general (under which the agreement was concluded) permitted the conclusion of a valid arbitration agreement, and therefore, in the context of good administration, it is unacceptable to attempt a posteriori a different interpretation and to defeat the reasonable expectations of its contracting parties, which relied upon the validity of the arbitration clause of article 28 of the contested agreement which, as referred to above, was a subject-matter of their negotiations.

Given the above, it must be accepted that the arbitration agreement which is included in article 28 of the contested agreement is valid and its legislative basis lies both in law 2735/1999 and in presidential decree 284/1989, article 69, paragraph 7, and also in articles 71 para. 1 and 73 para. 1. Therefore, the Arbitral Tribunal has the jurisdiction to determine any disputes arising from the contested agreement, dismissing any objections to the contrary by the Respondent. It must be noted that based on the abovementioned analysis, it is unnecessary for the Arbitral Tribunal to decide whether the contested agreement and any disputes arising therefrom are private or administrative, since, in any case, based on the abovementioned provisions of the law, an arbitration agreement may be validly concluded for these disputes.

Finally, given that the Arbitral Tribunal, in the context of its investigation, by its own initiative (see also article 16 para. 1 of law 2735/1999), upheld that it has jurisdiction, it is unnecessary to examine the Claimant’s claim that the Respondent submitted its objection regarding the invalidity of the arbitration clause belatedly and, in the alternative, in an unfair manner, and thus should be dismissed.

(a) The Claimant, based on a number of documents, starting with its letter dated 30 April 2010 addressed to the Arbitral Tribunal, with its written submissions, memoranda and additional pleadings, and also orally during the hearing of the case on 17 December 2010, argued that the claims and requests of the Respondent, which were submitted with its supplementary answers, should be dismissed, mainly because the ICC Rules of Arbitration do not make such provision. The Respondent replied that these allegations and requests were admissible.

(b) In relation to this issue, article 5 of the ICC Rules of Arbitration, which specifies that the Respondent must file its Answer within 30 days, requires that the Respondent submit its answer to the relief sought by the Request (and to submit its claims in relation to the real facts); the Respondent, however, had already submitted such claims with its answer dated 25 September 2009 (following an extension of the time for filing its Answer granted by the Secretariat of the International Court of Arbitration of the ICC).

(c) However, notwithstanding that article 5 of the Rules seeks an answer to the request (and the Respondent with its answer sought the dismissal), it does not require the Respondent to submit all its claims, arguments, rebuttals or requests with its answer.

(d) Furthermore, article 18(1) of the Rules, presupposes that the parties shall have submitted further arguments before the drafting of the Terms of Reference, since it provides that the Arbitral Tribunal shall draft the Terms of Reference in consideration of the most recent submissions of the parties.

(e) Furthermore, article 19 of the Rules stipulates that after the Terms of Reference have been signed, no party shall make new claims or counterclaims ("produce claims or counterclaims" according to the Greek rendering of the Rules) which fall outside the limits of the Terms of Reference, unless it has been authorised to do so by the Arbitral Tribunal. From this provision, it appears that new claims or counterclaims may be submitted before the Terms of Reference have been signed, without the permission of the Arbitral Tribunal.

(f) Given the above, any answer and request submitted by the Respondent (and also by the Claimant) before the Terms of Reference were signed were filed in a timely fashion whereas any claims to the contrary by the Claimant must be dismissed.

2. Regarding the inadmissibility of the Respondent’s plea for set-off because (a) this plea hides a belated counterclaim and (b) the costs of the Arbitration have not yet been paid

(a) The Respondent, with its Supplementary Answer dated 20/4/2010, submitted an alternative request that the amount of 70,246,683.30€ must be set-off against its counterclaims amounting to 122,027,043€ and other counterclaims which were not specified, but it reserved its right to specify them with its written submissions [specifically see Terms of Reference under 7(f) 11(3)].

(b) The Claimant filed a procedural objection requesting that the Respondent’s plea for set-off be dismissed because the related plea hides a belated counterclaim and also the costs of the Arbitrations have not yet been paid.

(c) In relation to this matter, it must be noted that the Respondent, by submitting its counterclaims, does not request that the Claimant pay these amounts of the counterclaims but it requests to dismiss the claims of the Claimants because of these counterclaims.

(d) However with such request, the submission of the Respondent’s counterclaims constitutes a real plea for set-off and any claims to the contrary by the Claimant must be dismissed.

(e) Furthermore, the Arbitral Tribunal has no jurisdiction to fix the advance on costs. More specifically, according to article 30(2) of the Rules, the amount for the advance on costs is fixed by the International Court of Arbitration of the ICC. This rule also applies in the case of a plea for set-off which, according to article 30(5) of the Rules, is taken into account when determining or adjusting the advance to cover the costs of arbitration by the International Court of Arbitration of the ICC, pursuant to article 30(2) of the Rules.

(f) In any event the decision of the Arbitral Tribunal on the admissibility of the set-off objection is not linked with the decision of the International Court of Arbitration of ICC about the amount of the advance.

(g) For these reasons the Arbitral Tribunal holds that the set-off objection of the Respondent is admissible and the Arbitral Tribunal reserves its decision on the merits for a future Award.

3. Regarding the separation of the examination of the merits of the case in two stages, the first of which will determine whether the acceptance of the C4I System by the Respondent shall be upheld or rejected

(a) The Claimant, with its abovementioned documents, both during the drafting of the Terms of Reference and with its aforesaid written submission and memoranda, and also during the hearing of the case on 17 December 2010, submitted and claimed that the merits of the case must be examined in two (2) stages, the first of which will determine whether the acceptance of the C4I System by the Respondent shall be upheld or rejected. The Respondent denied such separation. By the Terms of Reference (paragraph 14) this request was agreed to be examined as a preliminary issue in a separate hearing conducted for the preliminary issues.

(b) Given this request, it must be noted that in order to facilitate the proceedings, the Arbitral Tribunal has the power to separate the examination of the merits of the case in two stages.

(c) Nevertheless, the documents which were submitted to the Arbitral Tribunal up to this date are insufficient for the Arbitral Tribunal to decide whether the requested separation shall facilitate or obstruct the investigation of the merits (as argued by both parties) and despite the fact that both parties indicatively referred to some examples, these were insufficient to provide a full picture to the Arbitral Tribunal.

(d) The main issue, which remains unclear, is the legal consequences (and the basis of the provisions) of the recognition by the Arbitral Tribunal that the Respondent accepted the delivery of the C4I, and which of the defence arguments of the Respondent (e.g. claims regarding defects or omissions, pleas for set-off, etc.) would be rejected if such acceptance were to took place, while it is clear that any development of such claims from both parties at this stage of the examination of the preliminary issues would require extensive analysis of substantial issues. Therefore, and given the above, this request is so closely connected to the merits of the case that the Arbitral Tribunal cannot examine it before becoming aware of all the claims and evidence on the merits of the case, and specifically as to the influence of the acceptance of the C4I System on the other issues of the merits. In addition, the proposed separation does not correspond to a separation between the liability and the quantum of the claim, but also affects the claims of the parties in regard to the liability.

(e) It is certain that this does not assist the parties, which shall be obliged to prepare and submit all their arguments, both main and alternate; however, for the correct administration of justice, the Arbitral Tribunal must be able to examine the entire case file in order to decide whether some issues could or might be separated and examined in a different hearing.

(f) Following this, the Claimant’s request regarding the separation of the examination of the merits is rejected.

The Respondent (as detailed below) requests the suspension of the arbitration on the basis of article 250 of the Greek Code of Civil Procedure due to pending criminal proceedings.

More specifically, article 250 of the Code of Civil Procedure reads as follows:

"If a criminal action is pending and affects the determination of the (civil) dispute, the Court may on its own initiative or following the request of any party, to order the postponement of the hearing until the criminal proceedings are terminated irrevocably."

Regarding this request of the Respondent, it must be noted that the Arbitral Tribunal, as more specifically explained below, has the discretion (but not the obligation) to suspend the arbitration proceedings in view of any other pending proceedings, the results of which might affect the issues determined by this arbitration. This discretion, however, must be exercised very cautiously in order to avoid long delays which by their nature are incompatible with the arbitration proceedings, a fortriori since the Arbitral Tribunal has the power to decide in preliminary proceedings upon any issues which constitute pre-requisites for the acceptance or rejection of requests or claims submitted before the tribunal; in this case, however, although 2½ years have passed since the criminal prosecution, neither the investigating authorities nor the Respondent have ascribed any charges to any specific public officers.

Regarding any influence (and the legal consequences) of corruption (in the conclusion of the agreement or in the acceptance of the project), the evidence submitted to this day is insufficient to justify the suspension of the arbitration until the end of any criminal proceedings. For this reason, this request for suspension cannot be accepted at this stage, but it can be re-examined with the merits of the case if it is re-submitted and the corruption, its method and its consequences are specified (i.e. if they affected the agreement or the acceptance of the delivery).

The criminal charges which were pressed only in rem- a long time ago - and not against any specific person who handled this matter on behalf of the Respondent, cannot justify any suspension.

More specifically:

(a) The request for suspension of the arbitration proceedings due to criminal charges was submitted by the Respondent with its original answer to the request (pages 9-10), it was developed in detail in its Pleading dated 24/9/2010 submitted prior to the hearing of 17/12/2009 (specifically pages 1-38) and in its Supplementary CrossPleadings submitted after this hearing (specifically pages 23-40). It was also developed orally during the hearing of the case by the authorised lawyers of the Respondent.

According to the arguments of the Respondent, the legal basis of this request is article 250 of the Civil Procedure Code, while the factual basis is the fact that criminal charges have been pressed and an investigation has been launched for the case of Siemens, "an aspect of which is the conclusion and implementation of the agreement for the supply of the C4I Olympic Games Security Systems". The criminal charges have been pressed for the following offences against the Public State: passive and active corruption, money laundering, fraud, constitution of criminal organisation for committing these offences at a felony level (see pages 12-13 of pleadings dated 24/9/2009). The Respondent also states that this agreement is the subject matter of investigation by the Investigative Committee of the Greek Parliament.

In order to establish the connection of Siemens with the Claimant, the Respondent notes that the first company was the main subcontractor (at a percentage over 80%) of the contested agreement for the supply of the C4I system, that following the 5th amendment of the agreement it undertook to execute almost the entire project, and that it undertook, by substituting the Claimant, the crucial sector of the interoperable system.

(b) The Claimant argues that article 250 of the Civil Procedure Code does not apply in these arbitration proceedings, which must be conducted according to the ICC Arbitration Rules, law 2735/1999 and in the alternative articles 682-703 of the Civil Procedure Code, as defined by paragraph 11 of the Terms of Reference. These rules do not contain - according to the Claimant - any provision similar to article 250 of the Civil Procedure Code. Therefore, according to the Claimant, this request is unlawful. In addition, the Claimant argues, clearly in the alternative, that in any case the requirements of article 250 of the Civil Procedure Code do not apply and that "the decision for the suspension is at the discretion of the Arbitral Tribunal". Furthermore, relying upon article 24(1) of the ICC Rules of Arbitration, as well as on the delay in the criminal proceedings in Greece, the Claimant argues that any acceptance of suspension "would result in the final abolishment of the arbitration proceedings" and thus the principle of fair trial would be infringed upon.

(c) Article 15(1) of the ICC Rules of Arbitration stipulates as follows (in free translation from English): "The proceedings before the Arbitral Tribunal shall be governed by these Rules and, where these Rules are silent, by any rules which the parties or, failing them, the Arbitral Tribunal may settle on, whether or not reference is thereby made to the rules of procedure of a national law to be applied to the arbitration."

Based on this provision, paragraph 11 of the Terms of Reference provided that the Arbitral Tribunal shall apply the ICC Rules of Arbitration, and that "if the proceedings are not governed by other rules, in the alternative, the provisions of articles 683-703 of the Greek Civil Procedure Rules shall apply, subject to the exceptions which are mentioned herein below in paragraph 13". Given that this arbitration (as upheld above) is an international commercial arbitration and falls within Law 2735/1999, article 19 of this law shall also apply (and furthermore by priority against the interim measures provisions of the articles of the Civil Procedure Rules, as the last alternative resort), which stipulates that failing any agreement between the parties upon some procedural issues, the Arbitral Tribunal may conduct the arbitration in such manner as it considers appropriate. Finally, number 9 of paragraph 13 of the Terms of Reference states, inter alia, that the Arbitral Tribunal shall be able to enact any other provisions or exceptions for all the procedural issues while it shall inform the parties in a timely fashion.

(d) The provisions referred to in the previous paragraph, which govern the proceedings of this arbitration, do not expressly refer to article 250 of the Civil Procedure Code and do not contain any provision similar to this article, while article 250 of the Civil Procedure Code does not apply in the interim measures proceedings and it is incompatible with their urgent nature. However, when these proceedings have been agreed upon in arbitration for the hearing of the main case, as in this case, article 250 of the Civil Procedure Code is compatible, and based on article 19 of Law 2735/1999, the Arbitral Tribunal may, at its discretion, apply this article directly or by analogy. Furthermore, the Respondent submitted its request for suspension of the arbitration proceedings, based on article 250 of the Civil Procedure Code with its original Answer to the Request for Arbitration, i.e. before the determination of the abovementioned rules, while it reinstated this during the hearing for drafting the Terms of Reference and it was referred to in the latter as its "first preliminary" request. The Terms of Reference were drafted upon a unanimous agreement of the parties and the Arbitral Tribunal, and provide for a separate hearing and decision upon the preliminary issues. Therefore, it would be contradictory to accept that the procedural rules which are provided in the Terms of Reference a priori exclude upholding as well-founded in law the abovementioned request, and that at the same time they impose its examination as a priority. Thus, according to the correct interpretation approach of the aforesaid definitions of the Terms of Reference, the application of article 250 of the Civil Procedure Code, as well as the investigation of the merits of the Respondent’s relevant request based on this article, are also included in the "provisions or exceptions", which may be enacted by the Arbitral Tribunal during the arbitration, since the related exception is taken for granted by the same Terms of Reference of which the parties were aware, and which they had unanimously accepted. Given the above, the Arbitral Tribunal upheld that the application of article 250 of the Civil Procedure Code must not be excluded in this arbitration, but on the contrary it must be accepted, under the main condition that its requirements are met, that the suspension is at the discretion of the Arbitral Tribunal and that the suspension shall not result in a de facto abolishment or in a long delay of the arbitration proceedings. Consequently, the Respondent’s request is acceptable and prima facie (under the meaning of the existence of an establishing provision) well-founded in law and as to the remaining, it must be decided whether it is founded in law (i.e. whether the Respondent relies on facts which fulfil the remaining requirements of article 250 of the Civil Procedure Code) and in fact (i.e. whether the facts upon which the Respondent relies are real).

(e) In order to establish, legally and substantially, the abovementioned request, the Respondent relies on and submits mainly the following evidence, the material content of which is in summary as follows: a) The -05, ω-7/50 and ω/2008/47 orders of the Public Prosecutor of the Athens Court of First Instance, initiating ordinary investigations. Based on these orders, criminal prosecution was pressed regarding the offences referred to above (under no. 1) in relation to Siemens. On 26/6/2009, an arrest warrant was issued against Mich. Christoforakos, employee and managing director of Siemens in Greece, for fraud against the Greek Public State, concerning over 150,000 Euros, in regard to the supply of the C4I Olympic Games Security System to the Public State. According to the warrant, the false representations that constituted the offence of the fraud were mainly that the Claimant and Siemens as the subcontractor represented that they had the technical infrastructure, know-how, etc. to implement and deliver the project within its contractual time limit, while in fact they were not qualified to do so. The time of committing the fraud appears to be the period between the year 2002 and 19/5/2003. b) On 14/9/2009, a new arrest warrant was issued against Christoforakos for repeated fraud against the Public State. It refers to the period between 23/8/2004 and 5/12/2007, it concerns the same false representations and the total amount of damages is in the amount of 79,279,261.35 Euros, i.e. the released amount for the supply during this period, c) Order imposing an imprisonment penalty of one year in total by the Magistrates’ Court of Munich on M. Christoforakos since, as director of Siemens in Greece, he proceeded to pay bribes to the two largest political parties, and specifically to the treasurers of these parties at the time. More specifically, he was sentenced on the basis that he paid an amount in the order of tens of millions Euros to the aforesaid treasurers of the two parties in order to accelerate the acceptance of the partial works for the supply of the C4I and to persuade the competent officials to decide in favour of Siemens, possibly in breach of their duties, d) Decision by the Court of First Instance of Munich dated 28/7/2008, based on which the officer of Siemens, Rheinhard Siekaczec, was sentenced to a two-year imprisonment for paying bribes to various countries, including Greece, in relation to the C4I supply. This decision notes that for these bribes, Siemens (in Germany) was ordered to pay a fine of 201,000,000 Euros), e) The memorandum dated 6/6/2008 by the American law firm Debevoise and Plimpton LLP addressed to the Public Prosecutor of the Athens Court of First Instance which states that M. Christoforakos told Siekaczek "since the delivery of the project was well under way" (Siekaczec, that is the C4I project), he would need 10-15 million Euros "in order to pay commissions to four ministries - Internal Affairs, National Defence, Culture, Communications - based on the promises he made at the time of the awarding of the contract". This document also states that: "Siekaczec added that he had never discussed about the payment of commissions with anyone in SAIC and that he had never got the impression that SAIC had any involvement in these payments" (page 24, case 3-6). Furthermore, this document also refers to M. Christoforakos’ attempts to obtain money for bribes regarding the C4I project through the employees of Siemens Kutschenreuther and Meyer, f) The testimony of Siekaczec dated 17/11/2006 before the Magistrates’ Court of Munich, in which he stated that Christoforakos told him that the receivers of the monies, which were transferred by the Placid Blue Corporation, through its account in ABN AmroBank in Munich (which account is estimated to amount annually from 1 to 4 million Euros), "were the political parties in Greece". In the same testimony, Siekaczek stated that M. Christoforakos told him that in order for the C4I programme to be awarded to Siemens and to the joint venture, he (i.e. Christoforakos) had to pay "the Ministry of National Defence, the Ministry of Internal Affairs, the Ministry of Sports and one more Ministry", and that the amount was approximately 10 million Euros, g) The statement of defence dated 6/2/2007 of Siekaczek to the Bavarian State Criminal Police, in which he refers to the monies paid for bribes to various countries, including 10 million Euros for Greece, h) The report dated 8/10/2008 for the examination of Siekaczek as a witness by the 4th special investigator, made in Munich. The most material facts testified by the witness (and which are similar to the previous ones) refer to the monies which were sent through Munich "for the improvement of the relationships with the political parties, i.e. with PASOK and Nea Dimokratia", and that he paid Christoforakos and Mavridis approximately 10-15 million Euros per year. He also states that he does not know whether Greek officials or ministers or politicians received payments as bribes from Siemens or SAIC and that: "As far as I know, SAIC did not have any involvement in eventual promises for payment of monies (bribes)".

(f) As stated by the Respondent, and also as noted from the abovementioned documents cited by the Respondent, criminal charges were pressed for the first time regarding the aforesaid offences in July 2008 (on 2/7/2008). The prosecution was launched in rem, whereas the relevant charges have not been personalised, by the hearing of the case on 17/12/2010 or by the closing of the proceedings (21/1/2011), against specific public officers or employees of the Greek State. Only employees of Siemens have been prosecuted. However, a pre-requisite for bribery is a bribed public employee or officer. Such a specific person is not referred to by the Respondent and is not proven by the submitted evidence. Such persons and the manner by which the contested agreement was affected or the Claimant’s claims are affected have not been specified by the Respondent or by the conducted investigation, even though a substantial period of time has elapsed since the beginning of the prosecution.

(g) Given the above, the Arbitral Tribunal cannot justify acceptance of the request for suspension of the arbitration until the closing of the criminal proceedings (which, as it can be deduced from the evidence, is at the outset), specifically in the context of the arbitration which requires speedy proceedings, and furthermore since there is no evidence that the party in these proceedings, i.e. SAIC, had any participation in the alleged payments of bribes on behalf of Siemens. Therefore, the relevant request of the Respondent must be dismissed. However if, during the process of the case, new evidence arises which may justify any suspension for a specific, reasonable period of time, a new relevant request may be re-submitted.

(a) The Respondent in its original answer (pages 10-11) contested the authority of the legal representation of the Claimant to bring this Request in its name and argued that the Claimant lacks standing to bring this Request because, following the 5th Amendment of the contested agreement, "SIEMENS HELLAS S.A." undertook to implement such a large part of the project that in fact SAIC (the Claimant) was substituted in full by Siemens, i.e. the latter undertook all the rights and obligations of the agreement and therefore the Claimant lacks locus standi, or, in the alternative (pursuant to the Respondent’s Pleadings dated 24/9/2010), "SIEMENS HELLAS S.A." has a legal interest in this arbitration, not the Claimant.

(b) Regarding the legal representation of the Claimant in this arbitration, the latter submitted the power of attorney referred to above under B 3(a), which the Arbitral Tribunal, for the present time and under the condition that it shall not further be contested on specific and convincing reasons, considers it sufficient for the lawful representation of the Claimant in this arbitration while, regarding the locus standi of the Claimant, it must be noted that as deduced from the 5th amendment dated 29/3/2007 of the contested agreement, this amendment (as was the original agreement and the previous amendments) was concluded and signed between on the one hand the Greek State (Respondent) and on the other hand the Science Applications International Corporation - SAIC (Claimant) and irrespective of the size of the works which "SIEMENS HELLAS S.A." undertook to implement, this company was acting and continues to act as a subcontractor of the Claimant, while the Respondent and the Claimant remained the parties of the contested agreement. Therefore, the Claimant has standing to bring this arbitration and it also has legal interest to raise the claims it submits, and any arguments to the contrary of the Respondent must be dismissed.

(a) The Respondent, in its original Answer dated 25 September 2009 (pages 1112), submitted an objection regarding the inadmissibility of the Request for Arbitration due to failure to complete the written preliminary steps provided by article 28, paragraph 2 of the contested agreement; this request was re-submitted with its pleading dated 24 September 2010 (pages 40-42) with the additional argument that any failure to observe the preliminary steps of article 28, paragraph 1 "questions the jurisdiction of the arbitral tribunal or, in any case, the inadmissibility of this request for arbitration" (page 42 of the pleadings in finem).

(b) Article 28, paragraph 2 of the contested agreement provides that:

"28.2. The contracting parties undertake to act in good faith and through negotiations, to settle within a short period of time any dispute or claim arising out of the AGREEMENT, or in connection with it or with any of its clauses. In cases where the parties fail to settle their dispute under the abovementioned means, following written notice communicated between parties, which shall confirm the dispute, each party may have recourse to arbitration, as set out herein below. In light of the foregoing, each party shall communicate to the other a written report of its position on the matter which remains unsettled."

(c) The Claimant (specifically in its Pleadings dated 15 October 2010, page 42 et seq.) relies on article 8 of the contested agreement, as amended by the 5 th Amendment of the agreement, and specifically by its paragraph 8, and argues that based on this amendment (which as noted is more recent than article 28.2), a specific step for the acceptance of the system and the recourse to arbitration is provided, while the Claimant, allegedly, according to its correspondence with the Respondent, observed the preliminary step of article 8.8 on the one hand and on the other hand it simultaneously observed the steps of article 28.2. More specifically, article 8.8 of the contested agreement, as amended by the 5 th Amendment of the contested agreement, states verbatim as follows:

"8.8. Following the completion of all test procedures for the C4I SYSTEM, either with success or with deficiencies / variations which do not render it inappropriate for the intended use, THE PURCHASER shall issue and sign a Protocol of Qualitative and Quantitative Acceptance within 15 days from the completion, and therefore the C4I SYSTEM shall be deemed as FINALLY ACCEPTED by the PURCHASER at that specific day of the signing of the aforesaid Protocol. In the case where, according to a justified opinion of the PURCHASER, there are deficiencies / variations according to what is referred to above, these shall be recorded in the Protocol of Qualitative and Quantitative Acceptance. The parties are obliged, within 50 days from the date of issuance of the Protocol of Qualitative and Quantitative Acceptance, to proceed to solve any dispute on the value of the deficiencies / variations of the C4I SYSTEM and its SUBSYSTEMS. Failing to conclude such agreement within the aforesaid time limit, any of the Parties may have recourse to the arbitration provided in article 28 in order to finally resolve the Dispute."

(d) In this regard, it must be noted that the observance of the steps provided in article 28.2 of the Agreement does not affect in any way the validity of the arbitration clause (which is included in article 28 para. 3 of the contested agreement) and therefore there is no issue regarding the jurisdiction of the Arbitral Tribunal. On the contrary, the Arbitral Tribunal is competent to decide whether this step was observed or not, since any contest of this issue is also a dispute arising from the agreement or its interpretation and falls within the arbitration agreement of article 28.3 of the agreement. Failing to observe the step of article 28.2 could simply act as an exception which would postpone the arbitration proceedings.

(e) First and foremost, however, the purpose of article 28.2 is to empower the parties with an amicable resolution of their dispute through negotiations. Furthermore, the written notice communicated between parties which is provided in this article aims to make the other party aware that the notifying party considers that the negotiation stage has ended and thus the other party, if it so wishes, may commence the arbitration proceedings (without waiting for any response from the notifying party or without expecting any further negotiations).

(f) However, when a party refers to arbitration, at that point the document for the initiation of the arbitration proceedings in fact incorporates the confirmation of the dispute, the notice that further negotiations are insignificant and the development of its case, whereas the development of the case of the other party is set out in its answer.

(g) It must be noted that the relevant written notice of article 28.2 does not serve any other purpose than that which is referred to in para, (e) above and therefore it cannot be interpreted as preventing the initiation of the arbitration.

(h) In addition, contrary to the claims of the Respondent, the provision of article 28.2 of the contested agreement for the resolution of any dispute through negotiations, within a short period of time and upon written notice and written report of the position of the parties, does not serve, nor does it appear that it serves the detailed specification of the subject-matter of the dispute before the commencement of the arbitration. This view is reinforced by the fact that according to what was accepted above and pursuant to the ICC Rules of Arbitration (but also pursuant to the request of the Respondent which was accepted by the Tribunal), additional requests and answers and arguments (which define the subject-matter of the arbitration) may be submitted even after the initial requests and answers, an argument which was vigorously supported by the Respondent in relation to its supplementary answers. Furthermore, article 28.2 does not aim to address the "tight" time limits provided by the ICC Rules of Arbitration regarding the answer and the other proceedings, since these time limits of the ICC Rules of Arbitration, in complicated cases, can be addressed with extensions (such as in this case, firstly for the submission of the Respondent’s answer and during the subsequent stages of the proceedings) and with the submission of supplementary requests (as it was also accepted in this case, according to what is referred to above).

(i) In any case, both from the communication of the parties before the commencement of the arbitration (as detailed in the Claimant’s Pleadings of 15 October 2010, pages 44-49 and proven by the cited documents) and from the positions of the parties as set out in the Terms of Reference and its pleadings, the existence of a dispute and the positions of the parties are fully confirmed, and therefore the suspension of the arbitration proceedings in order to communicate the written notice confirming the dispute is pointless.

(j) Therefore, it must be accepted that the Claimant’s Request for Arbitration dated 16 June 2009 is not inadmissible due to failure to complete written preliminary steps, according to article 28.2 of the contested agreement, and thus the Respondent’s claims to the contrary must be rejected.

The Respondent, in its Supplementary Answer dated 20 April 2010 and with it subsequent pleadings and cross-pleadings and for the reasons stated therein, raised an objection regarding the lack of the Arbitral Tribunal’s jurisdiction due to the invalidity of the arbitration clause included in article 28.3 of the contested agreement. This request of the Respondent was examined above under C together with the ex officio Arbitral Tribunal’s examination of its own jurisdiction which, as stated therein, was accepted thus rejecting the Respondent’s objection to the contrary.

One of the arbitrators, Mr. Dionysios Kondylis, expressed the following different and supplementary reasoning, specifically in regard to the jurisdiction of the Arbitral Tribunal and the validity of the arbitration agreement:

1.

The objection regarding the invalidity of the arbitration clause and therefore the lack of jurisdiction of the Arbitral Tribunal was raised in the first "Supplementary Answer" of the Respondent dated 20/4/2009, and developed in detail in the pleadings submitted both before the hearing of 17/12/2009 and after this hearing. It was also developed in detail orally during the hearing. Furthermore, the Arbitral Tribunal must examine ex officio its own jurisdiction based on not only the general rules of law, but also on the specific provision of article 6(2) of the ICC Rules of Arbitration and article 16 para. 1 of Law 2735/1999.

2.

In order to establish the invalidity of the arbitration clause, the Respondent claims that the contested Agreement is administrative, that it was governed by the provisions of presidential decree 284/1989 and that these provisions does not permit the resolution of the disputes by arbitration.

The opinion of this arbitrator regarding this objection is as follows:

(1) According to the prevailing opinion in case law and in theory, an agreement is administrative if one of the contracting parties is the State or a public entity, and this agreement aims to satisfy a purpose of public interest according to the law, and in addition the State or the public entity, in order to satisfy the abovementioned purpose, is in a dominant position over the counter-party, either based on the regulatory regime which governs the agreement, or based on clauses provided by regulations and included in the agreement, but in exception from the common law (Supreme Special Court 19, 20, 21/2009, with references to the case law of the Supreme Special Court, Spiliotopoulos, Administrative Law, issue 13th, para. 186, 187). The administrative agreement falls within the field of the administrative law, while the element of the dominant position of the State or the public entity, which is a notional element of this law, must follow either from the regulatory regime which governs the agreement, or from its clauses, which not only deviate from the common law, but which must also be included in this agreement by law ("... which are provided by regulation and have been included in the agreement", according to the wording of the abovementioned decisions of the Supreme Special Court).

(2) Article 1 of presidential decree 284/1989, which was in force at the time of the conclusion of the contested Agreement, stipulates that: "This Presidential Decree exclusively governs the procedures regarding the supplies, contracts, works and service provision, carried out nationally or abroad under the care of the Ministry of National Defence in order to fulfil its needs of any kind". (The same, with more a detailed wording, is provided by article 1 of Law 3433/2006, article 71 of which abolished presidential decree 284/1989). Furthermore, article 5 para. 1(a) of Law 2833/2000 stipulates that: "The security of the Olympic Games is assigned to the Hellenic Police, at the Headquarters of which a specific service is constituted under the title "Olympic Games Security Directorate" to supervise the executive planning and to coordinate the bodies which are responsible for the order and security and which participate in the preparation and operation of the 2004 Olympic Games". Furthermore, article 1 para. 1 of Law 2292/1995 and article 1(a)(b) of Law 2800/2000, the former referring to the Ministry of National Defence and the latter to the Ministry of Public Order, stipulate as follows: Article 1 para. 1 of Law 2292/1995: "The National Defence includes all operations and activities developed by the State in order to protect its integrity, national independence and sovereignty, as well as the security of the citizens against any external attack or threat, and the support of the national interests". Article 1(a)(b) of Law 2800/2000: "The mission of the Ministry of Public Order, within the limits of the Constitution and the laws, is as follows: a) To safeguard and preserve the public order; b) to protect the public and state security".

3.1.

It is apparent from the abovementioned provisions that the security of the 2004 Olympic Games was under the authority of the Ministry of Public Order, to which the Hellenic Police belongs. This can be deduced from the mission of this Ministry under the law, while it is also expressly stated in article 5 para. 1 of Law 2833/2000, as set out above, and in the introductory notes of this law, which state as follows:

"The abovementioned requirements at a security level impose the establishment of a Specific Service in the context of the Hellenic Police, as furthermore also provided in the candidacy file, which shall be competent to supervise the executive planning and to coordinate the bodies which are responsible for the order and security, and which participate in the preparation and operation of the 2004 Olympic Games. In order to execute its mission, this service shall cooperate with all the competent bodies and shall be staffed by personnel on secondment from these bodies..."

From the abovementioned extract, it is also apparent that even in the candidacy file which was submitted by our Country for the award of the organisation and execution of the Olympic Games, the Police was specified as the competent body for order and security issues. Consequently, the supplies and services regarding the security of these games concern the satisfaction of the needs of the Hellenic Police, i.e. of a service which belonged to the Ministry of Public Order, and not to the satisfaction of the needs of the Ministry of National Defence. Therefore, presidential decree 284/1989 cannot apply to these supplies, since this decree refers to supplies, etc for the satisfaction of the needs of this Ministry.

3.2.

The contested Agreement refers to supplies of goods and to provision of services related to the security of the Olympic Games. This is indisputable, and it also apparent from its entire content and specifically from its article 3, which defines as its subjectmatter the obligation of the Claimant against a contractual price to "study, design, build, install, test, certify, complete, develop, sell and provide, according to the requirements of each case, to the purchaser (i.e. the Greek State) the C4I Systems for the Olympic Security as a "Turn-Key" solution... The C4I Olympic Security SYSTEMS constitute an information technology security system... concerning the security of the Olympic Games 2004". Therefore, due to its subject-matter, this Agreement serves, mainly at a minimum, the needs of the Ministry of Public Order. In addition, this is clearly stated in the inter-ministerial decision of the Ministers of National Defence and Public Order No 249101/22/8/2006, which was issued based on article 19 of Law 3489/2006; paragraph 1 of its single article stipulates that the abovementioned Ministers decide "to transfer the execution and implementation of Agreement 020A/03 for the C4I Olympic Security Systems and Agreement 16/03 for the Offset Benefits arising from the supply of these systems from the Ministry of National Defence to the Ministry of Public Order, to which these supplies mainly refer".

3.3.

Given the above, the Respondent’s argument that the contested Agreement is administrative, because it is governed by presidential decree 284/1989 and therefore it is subject to a regulatory regime that secures the dominant position of the State, is erroneous according to the opinion of this Arbitrator.

3.4.

Furthermore, the Respondent argues that: "the same provisions of the Agreement deviate from the common law and constitute an exceptional law which confers a dominant position to the State". It also refers to such provisions of the contested Agreement: a) article 23.1, according to which in cases where the supplier delays in fulfilling its obligations, penalties may be imposed, which shall be paid with deduction from its payment or by forfeiting its guarantees, etc., b) article 24, which provides that the supplier may be declared in default if it breaches its contractual obligations, c) para. 8.1 and 8.2 of article 8. The Respondent argues that based on these paragraphs, it can reduce the contractual price unilaterally in cases where any of the subsystems have deficiencies or variations. It must firstly be noted that the original agreement did not contain provisions regarding the reduction of the contractual price in paragraph 8.1 and 8.2 of article 8. Such reduction was added in the abovementioned paragraph following the 5th amendment, based on which these provisions were modified. However, and according to their current wording, these provisions do not stipulate a unilateral reduction of the price, but a reduction which "corresponds" or is "equivalent" to the deficiencies or variations, for the level of which the parties must clearly agree, as it also can be deduced from their comparison with paragraph 8 of the same article, which was also added with the 5th amendment. In any case, the matter remains the same even if these provisions are interpreted according to the arguments of the Respondent, d) the provisions of articles 34.1, 34.3 and 34.3.4.4, which confer to the State the right to terminate unilaterally the Agreement and to forfeit the letters of guarantee in case where the supplier is in default of its own fault to fulfil his obligations or if it is declared to be in bankruptcy, etc.

3.5.

All the abovementioned terms of the contested agreement, according to the opinion of the Arbitrator, do not deviate from the common law. On the contrary: the default clause, in case of one party failing to fulfil its obligations, the incidental agreement for the penalty clause in case of delay or improper fulfilment of the main obligation, as well as the right of the purchaser to terminate the agreement or to reduce the price in cases of deficiencies or variations, are common terms in private law agreements, which are binding according to article 361 CC, and are provided specifically in articles 399, 404 and 540 CC. Clearly, if the contested Agreement was subject to a regulatory regime which imposed these terms to be included in its texts, then it could be argued that these terms constitute a dominant position of the Respondent over the Claimant.

However since, as it was already explained, presidential decree 284/1989 does not apply in this case and there is no other law imposing the abovementioned terms in the Agreement, these terms derive from the intention of the parties, and are in agreement with the rules of private law. In addition, even if they deviate from the rules of private law, this does not suffice to characterise the agreement as "administrative". These terms, according to the case law of the Special Supreme Court, must also be "provided by regulatory laws", which is not the case.

3.6.

Furthermore, the Respondent argues that, if the contested agreement is not governed by presidential decree 284/1989, then it is absolutely null and void, based on articles 79 and 85 of Law 2362/1995, which declare the absolute invalidity of agreements, in cases where they impose obligations on the State, and these obligations do not contribute to fulfilling its purposes. However, in this case, since "the security of the Olympic Games belongs to the Hellenic Policy" (article 5 para. 1 of Law 2833/2000), the purpose of the State is to observe it. Furthermore, this agreement contributes to the fulfilment of this purpose. It must also be noted that a private law entity was constituted according to article 2 para. 1 of Law 2598/1998, in the form of a public limited company [societe anonyme], under the title "Athens 2004" with the purpose to "exercise all powers and authorities provided in the Olympic Chart and in the agreement signed on the 5th of September 1997 in Lausanne...", and that the supervision of this public limited company was generally assigned under paragraph 10 of the same article to an Inter-Ministerial Committee, constituted upon the decision of the Prime Minister. This Committee (re)constituted upon decision Y10/2001 of the Prime Minister, with the same Prime Minister as Chairman and 12 Ministers as members (etc.), amongst which the Minister of National Defence. Under article 1 para. 2 of Law 2833/2000, this Committee was named: (Inter-Ministerial) Committee for the Coordination of the Preparations for the Olympic Games (DESOP). The document dated 25/6/2002, which is cited by the Respondent, addressed to the Deputy Minister of National Defence L. Lotidis, notes that this Committee, in its 37th meeting of 12/6/2002 "decided that the Ministry of National Defence should launch a call for tender for the Olympic Security Operational Centres". Furthermore, this Deputy Minister was requested to cooperate with the Olympic Committee "Athens 2004" and the Ministry of Public Order. Under this decision (which is not submitted to this tribunal, and therefore it cannot confirm which Ministers participated in the composition of the Committee), assuming it is lawful, the Ministry of National Defence appears to be empowered to carry out the procedure for the selection of the supplier for the C4I security system. If this power, according to the subject-matter of the supply, belonged to the Ministry of National Defence, then the aforesaid decision of the DESOP would be meaningless.

3.7.

It can be deduced from the above that in this case, there is no evidence based on which the contested agreement could be characterised as administrative. On the contrary, it is apparent that this is a private law agreement, into which the State entered, not by exercising public power (jure imperii) but jure gestionis, according to the freedom of contracts provided in article 361 of the Civil Code (CC) and under a regime of equality. In addition, article 18 para. 4 of the contested agreement includes limitation clauses in some cases for the supplier’s liability, only for intent [dolus] and gross negligence (a clause permitted by article 332 CC and which is in favour of the supplier). Therefore, since the contested agreement is of a private law nature, there was no legal impediment to submit any disputes arising therefrom to arbitration, and furthermore without observing the formalities of article 39 of the Introductory Law to the Civil Procedure Code, since the contested agreement was concluded with a foreign company (article 8 of Law 736/1970, Areios Pagos in Plenary 8/1996). Consequently, the arbitration clause is valid and therefore the Arbitral Tribunal has jurisdiction to determine this case.

4.

In any case, if it is considered that the contested agreement is governed by the provisions of presidential decree 284/1989, then similarly, according to the opinion of this Arbitrator, the arbitration clause would valid.

4.1.

Firstly, it must be noted that the opinion in favour of the submission of the contested agreement to the provisions of presidential decree 284/1989, even though (as referred to above) it is not in agreement with the provisions of article 1 of this decree and of article 5 para. 1(a) of Law 2833/2000, as well as with the other provisions and evidence referred to previously, it is supported by the fact that the provisions of this presidential decree 284/1989, which are referred to in all cited relevant administrative act, were applied to the procedure both for the conclusion of the Agreement and for its ratification. It is, however, certain that it is a matter of interpretation of this law whether a contract falls within its scope. If the parties express their intent for a law to apply to their contract and refer to it, even in the case where this law does not apply to their contract, then the provisions of this law shall have contractual validity and shall apply in a supplementary manner, provided that they do not contradict the explicit terms of the contract. Under this concept, given that in this case the parties expressly agreed upon the resolution of their disputes by arbitration, the provisions of presidential decree 284/1989 are irrelevant to the issue in question.

4.2.

Furthermore, and even if it is accepted that presidential decree 284/1989 applies immediately and directly to the contested agreement, the arbitration clause is again valid under article 69, para. 7 of this decree, which stipulates that: "...for supplies of major importance, the procedure for the dispute resolution is defined in the relevant agreement. In this case, an equivalent provision shall be stated in the specific terms of the call of the corresponding tender". Under this provision, based on both its grammatical wording and its purpose, the parties may define, in the specific terms of the tender, and consequently in the agreement, the arbitration as a procedure for the resolution of disputes (see also Fortsakis, Arbitration and Administrative Disputes, pages 167 and 181). In this case, from the cited documents it is not apparent whether a call for tender was launched before the conclusion of the contested agreement and if a tender with general and specific terms was published. From the cited decision of KYSEA no. 1/23-1-2003, it can be deduced that the procedure for the supply of the C4I system was declared unsuccessfully completed. However, the document of the Ministry of National Defence dated 6/9/2002 under the title "Supply of C4I Olympic Security Systems", bearing the form of a call for tender, is submitted, which states that: "The Service is interested in the supply of C4I Olympic Security Systems to cover the 2004 Olympic Games". Article 16 of this document refers to arbitration as one method for the resolution of any disputes. Therefore, the contested arbitration clause was lawfully agreed in any case, based on article 69 para. 7 of presidential decree 284/1989.

4.3.

In addition, the contested arbitration clause was also lawfully agreed based on the provisions of Law 2735/1999 for International Commercial Arbitration, since this arbitration is international and commercial, while on the other hand there is no law providing that any disputes arising from contracts and submitted to the provisions of presidential decree 284/1989 are excluded from arbitration. Consequently, the provisions of this law (2735/1999) constitute an independent legal basis for the validity of the arbitration clause. More specifically, regarding whether this arbitration is international and commercial, this Arbitration refers to all that was accepted by the Arbitral Tribunal in its Decision dated 18/11/2009. There is no new evidence or arguments which may lead to a different opinion as to the character of this arbitration. Furthermore, presidential decree 284/1989 does not include any provision excluding any disputes arising from agreements governed by this decree to be submitted to arbitration (so that paragraph 4 of article 1 of Law 2735/1999 may apply). Article 14, para. 2 of the general terms, which have been published along with this decree, stipulates that: "Any dispute regarding the interpretation and implementation of an agreement or order for supplies to the Special Forces may be resolved, if such recourse is provided by the current laws, by the court within the jurisdiction of which the tender is conducted, applying the Greek Law". However, these general terms do not have legislative (regulatory) validity. They constitute a sample of terms which must be included in the tender in order to obtain contractual validity, in cases where the supplier declares that it accepts them, and thus constituting a contractual element (article 27, para. 4 and 30, para. 1(a) of presidential decree 284/1989). It must also be noted that the constitutional basis for the arbitration in our national law is article 8 of the Constitution⁷, which stipulates that no person shall be deprived of the judge assigned to him or her by law against his or her will. The provisions of para. 1 and 2 of article 94 of the Constitution govern the jurisdiction of the state courts against the administrative and private disputes respectively. They neither permit nor forbid the resolution of such disputes by arbitration⁸, which in general is deemed to be a jurisdictional procedure equal to state jurisdiction. The arbitration award clearly cannot annul an administrative act (Hellenic Council of State 752/2008, 889/1994 etc.). It can, however, declare legal consequences binding the administrative bodies, and order rights which may be alienated (such as the right to a monetary obligation), provided that the arbitration, to which the disputes are submitted, is regulated by law and there is also a relevant agreement referring the dispute to arbitration proceedings (article 8, para. 1 of Constitution). Both conditions are met in this case, since the contested disputes fall within the provisions of article 1 of Law 2735/1999 and there is a relevant agreement assigning these disputes to arbitration. Therefore, even under the assumption that presidential decree 284/1989 applies in this case, the arbitration clause is also valid and therefore the Arbitral Tribunal is competent to determine this case.

5.

Pursuant to article 281 of the Greek Civil Code, the exercise of a right is abusive and is prohibited if it manifestly exceeds the limits imposed by good faith or public morals or the social or economic purpose of the right. Furthermore, article 25 par. 3 of the Constitution stipulates that: "The abusive exercise of rights is not permitted". As consistently accepted, the plea of abusive exercise can also be raised against rights arising from the public order (Areios Pagos 952/2010, Areios Pagos 1429/2005), as well as against public rights, such as, for example, the right of enforcement (Areios Pagos in Plenary 12/2009, Areios Pagos 385/2010). It may also be raised against the plea for invalidity of specific clause of an agreement as well as for invalidity of the entire agreement (Areios Pagos 960/2010). According to the interpretation of this article (281 CC), the exercise of a right is abusive only if the obvious excess of the limits imposed by good faith, etc. is proven from the behaviour of the beneficiary before the exercise of the right or from the real situation which has been created, or from the circumstances which have arisen or from other facts which, without preventing the creation or causing the termination of the right, render its exercise intolerable according to the understanding of the average social person regarding the law and morals (Areios Pagos in Plenary 17/1995). Furthermore, the legal basis of the exercised right is unimportant. The plea of the abusive exercise is also raised against rights which are based, directly or indirectly, on the Constitution (see for example Areios Pagos 952/2010, which refers to an abusive exercise of right arising from the provision of article 22, para. 1(b) of the Constitution regarding equal treatment of employees). Therefore, the right to dispute the arbitration clause as invalid may also be exercised in an abusive manner (Areios Pagos 301/1992. See Areios Pagos in Plenary 25/1990). It must also be noted that the invalidity of the arbitration agreement (referring either to an arbitration agreement in a private law contract or to an arbitration agreement in an administrative contract) results in the establishment of the jurisdiction of the state courts, based on article 94 of the Constitution. That is, the plea for the invalidity of the arbitration clause is always founded, even indirectly, in the Constitution. It can thus be construed that the clause is invalid, and therefore the state courts have jurisdiction based on article 94 of the Constitution. However, this does not mean that it cannot be rebutted by a plea of abusive exercise.

5.1.

In this case, even if it was accepted that the arbitration clause in the contested agreement is invalid, in my opinion, the Respondent relies on this invalidity in an abusive manner, as the Claimant argues in a well-founded manner (see its pleadings dated 15/10/2010, page 79 and its pleadings dated 21/1/2011, page 21), for the following reasons which are founded in the evidence of the case file: a) The arbitration clause was chosen by the State. It was included as a term (article 16) in the invitation dated 6/9/2002, calling for expression of interest regarding the conclusion of the contested agreement, which was sent to the Claimant, b) the arbitration clause was included in the Decision dated 13/5/2003 of the then Minister of National Defence regarding the award of the contract. This decision was issued before the signing of the contested agreement, and its article 24 states that the agreement to be drafted shall include the arbitration clause, which is indeed included in the contested agreement, c) In the single para. 2(b) of the inter-ministerial decision of the Ministers of National Defence and Public Order it is stated that all powers regarding the C4I Systems are transferred to the latter Minister "including the arbitration proceedings, as can be deduced from the main agreement", d) the Claimant argues that before the 5th amendment of the Agreement, it had brought a request to arbitration, based on the disputed clause, and that the Respondent answered and had appointed an arbitrator without raising any objection regarding the invalidity of the arbitration clause. This argument, indirectly but clearly, has also been admitted by the Respondent in its pleadings dated 21/1/2011, where it notes (page 21) that: "... the previous request for arbitration by the claimant never reached the stage of drafting terms of reference, since the claimant, following the 5th amendment of the agreement, resigned from this request", e) With the 5th amendment (based on which the contested agreement was modified to a large extent), the arbitration clause of article 28 of the contested agreement was not removed and a new clause was also added for specific issues with a supplementary paragraph under number 8, in article 8 of the contested agreement, f) A letter sent by the Respondent to the Court of the ICC following the initiation of this arbitration proceedings, stated as follows (in free translation from English): "... we have the honour to inform you, with reference to your letter dated 6 August 2009, that we do not intend to raise any objections regarding the existence, the validity or the scope of application of the arbitration clause", g) On 25/9/2009, the Respondent submitted its original answer to the request (application) to the Court. In its introduction, not only did it not dispute the validity of the arbitration clause, but on the contrary it stated that: "... The abovementioned request is authorised by article 28, paragraph 3 of this Agreement, which stipulates the following arbitration clause". It then set out the text of the arbitration clause.

5.2.

Given the above, it is apparent that the Respondent was the party which suggested that the arbitration clause be included in the contested agreement, and in addition it included this clause as a term in the invitation for the expression of interest to the Claimant, that the Respondent was also the party which awarded the supply contract to the Claimant and imposed as a term in the awarding decision that the arbitration clause should be included in the contested agreement, as it was indeed included, that since then it supported this clause, and furthermore that it replied to the Court of the ICC, following the initiation of the arbitration proceedings, clarifying that it did not intend to raise any objections regarding the validity of the clause, that indeed with its original answer to the request it did not dispute the validity of the clause and that it raised for the first time the objection regarding the invalidity with its supplementary answer submitted over 6 months after its original answer. This behaviour of the Respondent is according to the opinion of this Arbitrator clearly contradictory, infringes on the doctrine of non venire contra factum proprium and contradicts the understanding of the average social person regarding law and morals, thus manifestly exceeding the limits imposed in the exercise of a right by the rules of good faith and public morals. Therefore, even if the clause was deemed invalid, the Respondent exercises its relevant right in an abusive manner, as the Claimant argues in a well-founded manner. For these reasons, the objection by the Respondent regarding the invalidity of the arbitration clause and the lack of jurisdiction of the Arbitral Tribunal must therefore be rejected.

The arbitrator Mrs Styliani Charitaki expressed the following dissenting opinion regarding the jurisdiction of the Arbitral Tribunal and the following different or supplementary reasoning:

1.

The contested agreement No. 020A/03, dated 19/05/2003, as stated in its introduction, was concluded between on the one hand the Hellenic Republic (Ministry of National Defence), pursuant to decision Φ.600/AP.9092/Σ.16/13 May 2003/YPETHA/GGOSAE/GDAE/DIKE and on the other hand S.A.I.C.

2.

The abovementioned decision dated 13/05/2003 of the Directorate of Capital Equipment, which belongs to the General Secretariat for Financial Planning and Defence Investments (GGOSAE) of the Ministry of National Defence, is marked as "confidential" and "urgent" and refers to the: "Awarding of Supply of C4I Olympic Security Systems" and is signed by the Minister of National Defence.

3.

This decision refers to a number of relevant documents concerning the progress of the procedure of the related supply to that day (exhibits a-z).

4.

Point 1 of the aforesaid awarding decision refers to a number of legislative texts (a-j), as well as a number of decisions, acts, reports, etc of the Administrative bodies (k-v), which were taken into account and constituted a legal basis for the decision on the one hand for the approval of the Minutes of the negotiation of the relevant committee and on the other hand for awarding the supply contract of the C4I Olympic Security Systems to the Claimant, amounting to 254,999 million Euros, under the terms defined in the abovementioned minutes dated 2/5/2003 (exhibit: y). Amongst the cited provisions are also the provisions of presidential decree 721/70 (Regarding the Financial Care and Accounting of the Armed Forces) (note 1 a), as well as of presidential decree 284/89 (On Supplies, Contracts and Work Implementation of the Armed Forces) (point 1.h). Express reference to presidential decree 284/89 is also made at point 32, case b of the awarding decision. Similarly, reference is made in the minutes of the negotiation dated 2/5/2003, which were approved by the abovementioned awarding decision, to a rejection of a request due to its contradiction to presidential decree 284/89, (point 7) and also to approvals which are required for variations in the context of presidential decree 284/89 (points 19, 20).

5.

From the above and the remaining documents submitted to the Arbitral Tribunal, which expressly, extensively and repeatedly refer to the provisions of presidential decree 284/89, it certainly appears that, according to the opinion of this Arbitrator, the contested agreement was concluded pursuant to the provisions of presidential decree 284/89, the parties were fully aware thereof and with no hesitation in regard to the legality of the application of the regulatory framework which governs the agreement. Indicatively, the following documents are referred to: a) the written invitation dated 06/09/2002 of the General Secretary of the General Secretariat for Financial Planning and Defence Investments (GGOS & AE) / General Director of the General Directorate of Defence Equipment (GDAE) of the Ministry of National Defence (YPETHA), addressed to the claimant and two more companies for the submission of financial - technical tender for this supply, including as annexes the programme specific terms, a guide for answers and requirements of the project specifications, b) decision by the Governmental Committee for National Defence (KYSEA) dated 23/01/2003 (declaring the unsuccessful closure of the supply procedure), c) the relevant decision Φ.600/9024/Σ.3, dated 29/01/2003 by the Minister of National Defence which declares closed the preceding procedure, approves the implementation of the supply, in exception from the ordinary procedures of presidential decree 284/89, determines the terms of its implementation and characterises the relevant specific armament programme as "confidential" and "urgent", d) the invitations of the same date and content Φ.600/550. 654 and Φ.600/550. 655 of the General Secretary of GGOS & AE/General Director of GDAE, addressed to the two companies which participated in the previous and closed procedure, i.e. the first to the Claimant and the second to the other company, e) decision of KYSEA, dated 27/02/2003 (selection of Claimant as preferable for the continuation of negotiations), f) decision of KYSEA, dated 13/03/2003 (awarding of the implementation of the supply to the Claimant).

6.

The claimant disputes the application of presidential decree 284/89, as the lawful regulatory and contractual framework that governs this agreement, for the first time at this stage of the arbitration proceedings, while the provisions of this decree also constitute the grounds of the lawful awarding of the relevant supply. The related argument challenges incidentally and inadmissibly the validity of the awarding decision, even though the latter is assumed to be legal and despite a) the unreserved participation of the Claimant to the procedure prior to the awarding of the supply, b) the signature, on its behalf, of the contested agreement and its amendments in execution to the relevant awarding decision, and c) its general participation in the various subsequent stages of the progress of the agreement (NOMOS, Hellenic Council of State in Plenary 1415/2000).

7.

From the general provisions of Law 2362/95 (Public Accounting) regarding the conclusion of agreements on behalf of the State (articles 79-85), it can be deduced that the freedom of the State is limited and that the administrative bodies do not have unlimited discretion as to the selection of the procedure for the conclusion of the agreements. These general provisions provide, inter alia, that: a) the agreements, which generate obligations against the State, cannot be concluded unless they are provided by general or specific provisions or unless they contribute to the fulfilment of its purposes (article 79), b) each agreement of the State is concluded by the State’s legal representative and upon the observation of a written formality (articles 80, 81), c) they follow specific proceedings, mainly through tenders (articles 82, 83), d) there are restrictions regarding the payment of advances (article 84), and e) the infringement of the specific provisions results in the absolute invalidity of the agreement.

8.

The supplies which concern armament programmes executed by the Ministry of National Defence are conducted pursuant to the provisions of a) law 721/1970 (Financial Care and Accounting of Armed Forces) and b) presidential decree 284/1989 (Supplies, Works, etc. of Armed Forces), which amended, supplemented and rephrased the provisions of presidential decree 285/78. The relevant provisions continue to apply, at the material time, in exception from the provisions which as a rule apply for government supplies (article 113 of Law 2362/95 on state accounting, article 1, para. 5 II and 5, para. 1 of Law 2286/195 on the provisions of the Public State, article 2, para. 10 and article 3, para. 3 of presidential decree 370/95 on the alignment of the Greek laws to the community direction 93/36/EE- NOMOS, ES 57/2007/Act of IV Department with references to the case law).

9.

If the opinion of the Claimant, regarding the non application in this case of the provisions of the regulatory framework which concerns the supplies of the Armed Forces, was to be accepted then that would also imply the acceptance that the relevant agreement was concluded against the law and thus its absolute invalidity.

10.

Regardless, the contested agreement was lawfully concluded according to the provisions of presidential decree 721/70 (which in any case provides in general for cooperation between co-competent ministries) and presidential decree 284/89, since the relevant supply was made upon the care of the Ministry of National Defence (article 1 of presidential decree 284/89) and was serving, inter alia, material and specific needs of the Armed Forces (see relevant document of the National Defence General Staff (GEETHA) Φ.231/56/400061/Σ.10/18/02/2003, and Φ.231/55/400042/Σ.6/04/02/2003, inter-ministerial decisions regarding the duties of the personnel of the Armed Forces (486/B/2004) under the cooperation of the Armed Forces (960/B/2004) with references, inter alia, to the operational centre of the Armed Forces, the Hellenic Air Force, the Hellenic Navy, etc including details as to their general and specific mission), which Forces on the one hand were the co-competent body for the security of the Olympic Games (article 5 of Law 2833/2000) and on the other hand were the competent main body by law for safeguarding the national defence, but also the public order and security in case of urgency (Law 2292/95, specifically article 1, para. 1, 4 / National Defence - article 3, para. 1, case e-1 / KYSEA - no. 5 / Ministry of National Defence, article 11 / Head of GEETHA with powers, depending on each case, for the coordination, direction and supervision of the security bodies in conjunction with the provisions of Law 2800/2000 regarding the restructuring of the Ministry of Public Order aiming to the participation of the latter in safeguarding the national defence in cooperation with the armed forces - article 1, case e)

11.

It must be noted that, as upheld by case law (Council of State in Plenary 1681/2005 with full references to the legal framework), the Inter-Ministerial Committee for the Coordination of the Preparations for the Olympic Games (DESOP) had a supporting role in relation to the Prime Minister’s duties, and its decisions taken in the exercise of its works do not constitute enforceable administrative acts. Given the above, it is undoubtedly apparent that the powers of the Minister of National Defence for the execution of this supply are provided by the relevant specific provisions for the armed forces and the national defence, while the Claimant unfoundedly relies on the relevant decision of DESOP and argues, in an attempt to attribute a regulatory character to this decision of DESOP, that this decision established the competency of the Minister of National Defence to conduct this supply in its absolute and unlimited discretion.

12.

According to the consistent case law of the courts, the agreements concluded according to the provisions of presidential decree 284/89 are characterised as administrative agreements (indicatively, NOMOS, Council of State 2497, 1921, 1855, 1674/2008,EL/Act IV Division 57/2007, E. Spiliotopoulos, Administration Law, 2005, para. 190, footnote 11) and any disputes arising from their implementation are administrative disputes, while the Administrative Courts of Appeals are the competent courts to resolve such disputes, pursuant to the provisions of Law 1406/83 (indicatively NOMOS, Special Supreme Court 19/2009, Council of State 1348/2010, Areios Pagos 1612, 1780/2009).

13.

According to the theory and the case law, in order to characterise an agreement as administrative the following requirements must be met: a) the Public State or a public entity must be one of the contracting parties, b) this agreement aims to satisfy a purpose of public interest, and c) the State or the public entity, in order to satisfy the abovementioned purpose is in a dominant position over the counter-party, either based on the regulatory regime which governs the agreement, or based on clauses provided by regulations and included in the agreement, but in exception from the common law, i.e. in a position which is incompatible with the contractual bond created pursuant to private law (indicatively Spiliotopoulos, Administrative Law, para. 186, 187, Special Supreme Court 19/2009 with references to consistent case law). It is noted that the recent decisions of 2009 of the Special Supreme Court do not differ from the relevant previous consistent case law, and they do not introduce new criteria for the characterisation of an agreement as administrative.

14.

This agreement is undoubtedly an administrative agreement, since the State is the one contracting party, the agreement serves a clear public purpose (special armament programme for the supply of infrastructure systems in the context of the security during and even after the end of the 2004 Olympic Games), and is governed by not only the exceptional regulatory framework of presidential decree 284/89 (indicatively, NOMOS, ES 80/2007 - act VI division, Council of State 288/2010, 1921/2008, 2497/2008, 2498/2008, but also provisions regarding the exclusive regulation of methods and procedures for supplies of Special Forces / article 1, compulsory standard terms / art. 27, guarantee/ art. 29, tenders and offsetting benefits/ art. 30, objections/ art. 34, signature of agreement and deposit of letter of good performance, and also of compulsory default and imposition of penalties/ art. 36, penalty clauses/ 42, declaration in default, which is compulsory after the period of 6 months -invalidity and non-enforceability of subsequent decisions issued in favour of the supplier - cumulative or disjunctive imposition of penalties/ art. 43, prohibition of assignments/ art. 45, payment of advance and interest-bearing return/ art. 46, compulsory payment of duties in favour of the public state/ art. 47, amendment of agreement terms/ art. 66, resolution of disputes/ art.69).

15.

Article 94 para. 1 of the Constitution provides that the hearing of administrative disputes belongs to the existing ordinary administrative courts. In decision 24/1993 the Special Supreme Court upheld that the aforesaid constitutional provision, according to its literal interpretation, does not prohibit the common legislator from allowing the Administrative bodies and the tax payers to submit to arbitration, upon their agreement, specific tax dispute or tax disputes arising from specific lawful relationships. Following the rendering of this relevant decision, it is consistently accepted, both from the theory and the case law, that the submission of an administrative dispute to arbitration is permitted, provided that there is a relevant enabling provision and, based on this provision, a relevant administrative agreement including an arbitration clause is concluded, or in the case of an absence of such relevant legislative authorisation, provided that the relevant administrative agreement including an arbitration clause is subsequently ratified by law (indicatively, E. Spiliotopoulos, Administrative Law, 2005, para. 198, 492, case d, 612, Th. Fortsakis, Arbitration and Administrative Disputes 1998, specifically para. 196, Council of State 752/2008, 3300/2002, 3105/2000, 889/1994 with further analysis regarding not only the power of administrative courts, the content and the binding force of their decisions, but also the obligation of the administrative courts, when hearing administrative disputes, to investigate, in case of submission of an arbitration decision, whether the Arbitration Court had indeed jurisdiction to resolve the subjectmatter which was submitted to arbitration).

16.

Whereas provisions of the Civil Procedure Code and its Introductory Law permit the State to conclude arbitration clauses regarding the agreements of private law, there is no relevant equivalent legislative provision for the State to submit administrative disputes to arbitration. Law 2735/1999 regarding the international commercial arbitration does not constitute the proper legal basis for the conclusion of an arbitration clause on behalf of the State regarding disputes arising from an administrative agreement, due to the fact that the commercial dispute, and thus a dispute of private law, is semantically incompatible with the administrative dispute, and thus a dispute of public law. If the legislator intended to also permit the submission to international commercial arbitration of administrative disputes arising from administrative agreements, then it should have included an explicit and specific relevant provision in the aforesaid law. Lack of such a provision regarding the arbitration for the administrative disputes in general, both in the Code of Administrative Procedure and in Law 1735/1999 constitutes a conscious choice of the regulatory legislator, who, in any case, either regulates the relevant issue for a specific category of administrative agreements (e.g. Law 1418/1984 on the public works, art. 14 regarding arbitration clause following a specific decision of the competent ministers in each case), or for a specific agreement, applying the procedure of its regulatory ratification.

17.

Given the above and due to the lack of a legislative ratification of the contested agreement, the ex officio examination by the Arbitral Tribunal of its own jurisdiction (NOMOS, decision 1/2004 of the Arbitral Tribunal of Véroia, St. Kousoulis, Arbitration Law, 2006, p. 53-55, para. 60-63), must be extended to the interpretation of the provisions of the regulatory framework of the agreement, in order to decide whether the latter constitutes a lawful basis for the conclusion of the arbitration clause included in the agreement.

18.

According to the claimant, in any case, article 69 para. 7 of presidential decree 284/89 permits the conclusion of an arbitration clause regarding supply agreements of major importance. Article 69 of the abovementioned decree, under the title "Dispute resolution", in the case of rejection of material or acceptance with reduction, regulates the submission of this matter to a Dispute Resolution Committee. Paragraph 7 stipulates as follows: "Specifically for supplies of major importance, the procedure for the dispute resolution is defined in the relevant agreement. In this case an equivalent provision shall be mentioned in the specific terms of the call of the corresponding tender". Article 31 of presidential decree 189/97 adds a new paragraph 8 to article 69, which is as follows: "Any expenses for laboratory checks or other costs arising in the context of the dispute resolution proceedings are borne by the party requesting the submission of the case to the Dispute Resolution Committee."

19.

Presidential decree 284/89 amended, supplemented and rephrased presidential decree 785/78, as the latter had been amended and was previously in force. As it appears from the introduction of the abovementioned presidential decrees, both decrees were issued following delegation by article 50 para. 5 of presidential decree 721/70 regarding the financial care and accounting of the armed forces. The relevant paragraph refers to "arbitration" and cases n and v respectively provide: "n. The method of checking and delivering, rejecting supplies, arbitration, as well as the constitution, the purpose and operation of the central or peripheral committees for the acceptance, checking and arbitration." and "v. The remuneration paid to the military officers in general, civil officers and persons employed by other services which participate in committees for conducting tender proceedings, expert opinions, delivery acceptance procedures and arbitration proceedings." It is noted that, at the time of the issuance of presidential decree 721/70, and regarding the supplies of the military service, Law 654/37 was in force, article 16 of which (Rejection of Supplies - Arbitration) provides for an arbitration committee with advisory powers deciding upon the suitability of the rejected material and any reduction on its acceptance price. Article 69 of presidential decree 785/78, which was issued subsequently and upon delegation by para. 5 of art. 50 of presidential decree 721/70, under the title "Arbitration", provides for an arbitration committee and recourse to "Arbitration", in case of rejection of material or its acceptance upon reduction. Paragraph 6 of the same article provides details regarding the composition of the Arbitration Committee and, in particular, its last sentence stipulates that: "More specifically, in case of supplies of major importance from abroad, the abovementioned Committee shall be constituted as provided by the relevant agreement, which may also examine any dispute regarding the interpretation and implementation of the agreement".

20.

From the independent and combined examination of the aforesaid provision, according to their correct interpretation, the following assumptions can be deduced:

a. At the time of the enactment of the enabling provision of para. 5 of article 50 of presidential decree 721/70 (251/A/23.11.70), its legislator refers to "arbitration" and to "arbitration committees" according to the meaning of the corresponding terms of article 16 of law 654/37, which was in force at that time, i.e. the administrative resolution of disputes by a technical collective body, deciding upon specific technical and real issues in regard to the acceptance of the materials under supply, and not according to the meaning, which was also known to the legislator, of the arbitration as a final resolution of any dispute arising from the execution of the supply agreement, upon a decision by the arbitral tribunal with a binding effect, thus excluding the jurisdiction of state courts (Law 633/70- 173/A/21.08.70- regarding the arbitration clause and composition of an arbitral Tribunal with reference to the arbitration rules of the International Chamber of Commerce).

b. Under the aforesaid interpretation and in the same spirit, the legislator of presidential decree 785/78 provided for the arbitration proceedings and the relevant arbitration committee of article 69. Irrespective of whether the relevant provision for the supplies of major importance may be in breach of the relevant legislative delegation, as long as it permits the arbitration committee to also examine every dispute regarding the interpretation and implementation of the agreement, this provision refers to an administrative resolution of disputes by a collective body, and not to an arbitration resolution of disputes by an arbitral tribunal, deciding finally and irrevocably, thus excluding the jurisdiction of the subject-matter state courts.

c. Under article 69 of presidential decree 284/89, the legislator, in compliance with the relevant enabling provision of law 721/70, replaces the terms "arbitration" and "arbitration committee" with the terms "dispute resolution" and "dispute resolution committee" and regulates the relevant administrative procedure in order, following a decision (protocol) of the corresponding collective technical body, to resolve the existing disputes - arising either between the State and the supplier, or between the members of the administrative collective body responsible for checking and acceptance- regarding real and technical matters arising from the acceptance of the deliverables and the reduction of their price. The provision of paragraph 7, regarding the case of supplies of major importance, - in contrast to the relevant provision of presidential decree 785/78 - no longer refers to the examination of disputes regarding the interpretation and execution of the agreement, and furthermore it provides as a requirement for the contractual determination of the method of dispute resolution the existence of a corresponding provision in the specific terms of the regulatory act of the call of the relevant tender, while it does not extend the dispute resolution to other categories i.e. to other issues beyond the technical matters referred to in the previous paragraphs of the same article, and it does not authorise the administrative bodies to conclude an arbitration clause. The provision of para. 7, contrary to the previous paragraphs of article 69, is limited to procedural issues which - due to the particularities of cutting edge technologies which usually refer to supplies of major importance - require a different approach in order to reach correct technical conclusions (e.g. more than one month time limit for the issuance of the relevant protocol, different constitution and composition of the technical body, such as the participation of more members and/or foreigners, specially qualified technical advisors, determination of specific technical procedure for re-checking). This opinion is reinforced by the fact that the subsequent addition of para. 8 in article 69 provides that the financial expenses of the procedure shall be paid by the contracting party which requests the submission of the case to the Dispute Resolution Committee. If para. 7 contained a provision regarding the conclusion of the arbitration clause, then - following a logical and systemic sequence - the provision regarding the payment of the expenses should be inserted between paragraphs 6 and 7 of article 69. It is also noted that the circular instructions of YETHA, of the year 1992, regarding the implementation of the provisions of presidential decree 284/89 and specifically of article 69, are limited to indicating the need of the participation in the dispute resolution committees of a representative of the commercial and industrial sector without making any reference to the conclusion of any arbitration clauses.

d. Consequently, the arbitration clause of article 28.3 included in the agreement, which does not refer to a procedure for the resolution of technical disputes but provides in general and vaguely that: "All claims or disputes arising out of or in connection with the present AGREEMENT or its interpretation shall be finally settled by arbitration...", and which was concluded despite the absence of relevant provision permitting its conclusion, is unlawful and invalid, and for this reason the Arbitral Tribunal lacks jurisdiction for the resolution of this dispute and thus this request for arbitration must be dismissed.

1.

Given the above, the decision of the Arbitral Tribunal regarding its jurisdiction and the objection of the Respondent regarding the lack of the Arbitral Tribunal’s jurisdiction (Operative part, paragraphs 1 and 8) was made by majority according to Article 25(1) of the ICC Rules of Arbitration and article 29 of Law 2735/1999, while the dominant reasoning is set out in Chapter D of the award.

2.

In regard to the remaining preliminary issues (paragraphs 2-7 of the Operative part), the decision of the Arbitral Tribunal was made unanimously.

3.

This Award does not rule upon costs, since the Award is not final.

1. The Arbitral Tribunal accepts that it has jurisdiction to decide upon disputes arising between the parties in Agreement No. 020A/03 regarding the Supply of the C41 System for Olympic Security and the Related Products and Services, dated 19 May 2003, according to the arbitration agreement (clause) in article 28.3, which is valid pursuant to Law 2735/1999 and articles 69 para.7, 71 para.l and 73 para.l of presidential decree 284/1989.

2. The Claimant’s plea regarding the inadmissibility and belated supplementary answers of the Respondent and its claims contained therein is rejected.

3. The Claimant’s counter-plea regarding the inadmissibility of the plea for setoff submitted by the Respondent is rejected regarding its legal basis that this pleas hides a belated counter-claim, and regarding its legal basis that the relevant Arbitration costs have not yet been paid. The Respondent’s set-off objection is held admissible. The decision on the merits is reserved for a future Award.

4. The Claimant’s request for separation of the merits of the case in two stages, the first of which will determine whether the acceptance of the C4I System by the Respondent shall be upheld or rejected, is rejected.

5. The Respondent’s request for the suspension of the proceedings due to criminal charges is rejected.

6. The Respondent’s objections regarding the lack of legal representation, the lack of standing to bring the request, or in the alternative, the lack of legal interest on behalf of the Claimant, are rejected.

7. The Respondent’s objection regarding the inadmissibility of the contested request for arbitration and the related lack of jurisdiction of the Arbitral Tribunal due to lack of written preliminary steps of article 28, paragraph 2 of the contested agreement, is rejected.

8. The Respondent’s objection regarding the invalidity of the arbitration clause of article 28.3 of the contested agreement, and thus the lack of jurisdiction of the Arbitral Tribunal, is rejected.

9. All other claims, including those relating to costs arising from the present Award, are reserved for one or more future awards.

SIAC v. Greece

Documents de l'affaire

Avocats, autres représentants, expert(s), secrétaire du tribunal

Award Regarding Preliminary Issues

A. INTRODUCTION AND SUBJECT-MATTER OF THE AWARD

B. PRELIMINARY STAGE

C. JURISDICTION

1. Summary

2. Jurisdiction clause (and applicable law)

3. Contest of jurisdiction / The power of the Arbitral Tribunal to decide upon its jurisdiction

4. Applicable law

5. Constitution of Greece

6. The legislative basis for the submission of private disputes to arbitration according to the Civil Procedure Code

7. Decision of Special Supreme Court No. 24/1993 regarding the submission of the administrative disputes to arbitration

8. The parties’ claims

9. The Arbitral Tribunal’s own-initiative examination

10. Distinction between the interpretation of article 1 of Law 2735/1999, and submission to this article, and the interpretation and submission to other provisions

11. Regarding the international character of the arbitration

12. Regarding the commercial character of the arbitration

13. Law 2735/1999 as legislative basis for the conclusion of valid arbitration agreements

14. The validity of the arbitration agreement pursuant to Presidential Decree 284/1989

15. The decision

16. Other issues

D. PRELIMINARY REQUESTS RAISED BY THE CLAIMANT

1. Regarding the admissibility of the supplementary answers of the Respondent

E. PRELIMINARY ISSUES RAISED BY THE RESPONDENT

1. Request for the suspension of the proceedings due to criminal charges

2. Dispute of the legal representation and of the standing to bring the Request or in the alternative, of the legal interest on behalf of the Claimant

3. Inadmissibility of the Request for Arbitration due to lack of written preliminary steps

4. Invalidity of the arbitration clause and thus lack of jurisdiction of the arbitral tribunal

F. DISSENTING OPINION AND DIFFERENT OR SUPPLEMENTARY REASONING

(1) Different and supplementary reasoning by the arbitrator Mr. Dionysios Kondylis

(2) Dissenting opinion and different or supplementary reasoning by arbitrator Styliani Charitaki

G. THE MAJORITY OPINION

FOR THESE REASONS

Accédez instantanément à la jurisprudence, aux traités et à la doctrine les plus pertinents.

Grigorios I. Timagenis	Président
Dionysios Kondylis	Désigné par l'investisseur
Styliani Charitaki	Désigné par l'Etat