I INTRODUCTION TO THE DISPUTE RESOLUTION FRAMEWORK
Cyprus became an independent and sovereign republic on 16 August 1960. Before that it was a British colony and many features of the British legal system have remained embedded in the judicial system of Cyprus.
Prior to Cyprus’s accession to the European Union in 2004, its Constitution was the supreme law of Cyprus, which provides, inter alia, for the separation of powers – with the judiciary being independent from the other branches of the government – and for the full protection of human rights and fundamental freedoms. Following Cyprus’s accession to the European Union, European law is the supreme law of the Republic and the Constitution takes second place, and where inconsistencies exist between EU law and the Cyprus Constitution, the former will prevail. The supremacy of EU law has been recognised by the Constitution itself through an amendment effected for that purpose.
Cyprus is a common law jurisdiction and operates on an adversarial system. Most Cypriot law has been modelled after English common law, the basic principles of which are directly applied by Cyprus courts, under Section 29 of the Courts of Justice Law. Administrative and constitutional law in particular are mostly influenced by Greek law. Cyprus’s Contract Law (Chapter 149) and Sale of Goods Law (Chapter 267) were modelled after Indian law, whereas the Civil Wrongs Law (Chapter 148) is a codification of common law and the Criminal Procedure Law (Chapter 155) was based on English statutes.
The courts are bound by the doctrine of precedent, namely the superior courts’ (second instance) decisions bind subordinate courts. Where there is no applicable Cypriot legislation, English common law and equity will be applied, and English authorities have persuasive force and in some cases may be considered binding law. Where, however, the common law has been interpreted by the Cyprus Supreme Court in a particular way, the subordinate courts will be bound by that interpretation. Cyprus’s courts are divided into two tiers, the Supreme Court and the lower courts.
The Supreme Court has unlimited jurisdiction and its decisions when operating as an appeal court are final, unless overturned by the European Court of Human Rights or the European Court of Justice. It acts as appellate, admiralty and electoral court and has exclusive jurisdiction to issue prerogative orders (habeas corpus, mandamus, certiorari, quo warranto and prohibition). Appeals are usually heard by a panel of three judges except in cases where, because of the importance of the case, the hearing may take place before an enlarged panel. When the Supreme Court exercises its first instance jurisdiction (in all cases except when it acts as an appellate court), the case is heard by one judge.
The lower courts consist of courts of special jurisdiction: family law, rent control, industrial disputes and military courts. These courts try cases at first instance with a one-judge panel.
The assize courts try criminal cases at first instance with a panel of three judges.
District courts, which try all other civil cases at first instance and, in specific circumstances, criminal cases, have a one-judge panel. There are five district courts, one for each administrative district (i.e., Nicosia, Limassol, Larnaca, Paphos and Famagusta). District courts are made up of president judges with jurisdiction to try claims above €500,000, senior district judges with jurisdiction to try claims between €100,000–€500,000, and district judges with jurisdiction to try claims below €100,000.
All subordinate court judgments are subject to appeal at the Supreme Court.
There are no jury hearings in Cyprus and, unlike in England, there is no distinction within the legal profession between barristers and solicitors.
Although alternative methods of dispute resolution (ADR) are increasingly being used in Cyprus, the majority of disputes are adjudicated in courts.
II THE YEAR IN REVIEW
i Civil Appeals No. E23/2013, E24/2013, E25/2013, E26/2013, E27/2013, E28/2013 and E29/2013, Alpha Bank Cyprus Ltd v. Dau Si Senh and Others
These joint cases regard the service of judicial documents upon persons residing abroad, particularly in the United Kingdom – a service that was effected pursuant to the provisions of European Regulation EC 1393/2007 (the EC Regulation) on service of judicial and extrajudicial documents in civil or commercial matters (service of documents) in the Member States. Prior to this judgment, service outside the jurisdiction had to be made in strict accordance with the applicable laws and rules of Cyprus, together with strict accordance with the relevant regulation or bilateral/multilateral treaty applying in each case. Non-conformity with the provisions of either local or international law could lead to the annulment of the service, thereby causing substantial delays to the judicial procedure, and such non-conformity was extensively invoked by the defendants who wanted to either strike out or delay the proceedings against them.
In this case, the Supreme Court held that the Cypriot courts should not adopt a formalist approach to the adherence to strict rules of service, since such an approach would circumvent the European approach as outlined by the EC Regulation. Instead, matters of service should receive a more lenient approach to achieve the aim of the EC Regulation and of the local law, which is to bring to the attention of the parties the existence of an action against them and to improve and expedite the transmission of judicial documents. It was held that the non-service of specific documents mentioned in the local law and in the EC Regulation did not automatically lead to an annulment of the service, but constituted an error or omission that could be rectified by the relevant party. It was also held that even if specific documents were not served upon the defendants, this would not necessarily mean that the defendants suffered any damage, as they were informed of the legal proceedings and were even able to appear before the court. The Supreme Court also referred the question of compliance with the EC Regulation to the European Court of Justice, and questioned the consequences of failure to inform defendants of their right to deny receipt of judicial documents. The European Court of Justice confirmed that non-service of the standard form of Annex II of the EC Regulation does not constitute a ground for the procedure to be declared invalid, but an omission that can be rectified on the basis of the provisions of the EC Regulation.
ii Maria Kokkinou v. Kyriakou Kokkinou, Civil Appeal No. 29/2014, dated 3 November 2016
In a recent judgment of the Supreme Court, in Marias Kokkinou v. Kyriakou Kokkinou, Civil Appeal No. 29/2014, dated 3 November 2016, the matter of filing a supplementary affidavit within the framework of an ex parte application for an interim order was examined. The Court reiterated the importance of adhering to the rule that supplementary affidavits in such procedures should be filed only where there is ‘good reason’. A good reason assumes the existence of some requirement of the interim procedure with an ultimate aim to resolve the issues at stake and to ensure the proper administration of justice. It has been established that the mere requirement of an applicant to rebut the allegations raised by the respondent opposing an order issued on an ex parte basis does not constitute a good reason, unless there are exceptional circumstances. Although it has not introduced a new point of law, this authority is important because it aims to reduce the increasing tendency of parties obtaining an ex parte interim order to file supplementary affidavits, leading to a volume of documents before the Court, often in an effort to fill any gaps in their testimony or to try to complicate matters or to delay the proceedings while retaining the advantage of an order issued ex parte in their favour – while it is not advisable for the courts to hold a mini trial at this stage or to deal with the substance of the case and the facts in dispute. The judgment emphasises the fact that an interim order application, where an order was initially issued ex parte, is examined on the basis of the facts put before the court through the affidavit that supported the application. Therefore, a party wishing to obtain an interim order on an ex parte basis should disclose all the material facts to the case in his or her affidavit supporting the application.
iii Amendment of Orders 25 and 30 of the Civil Procedure Rules
In an attempt to modernise the existing practices that are followed by the Cyprus courts, and to speed up the administration of justice, the Supreme Court has proceeded with a number of amendments regarding the Civil Procedure Rules – particularly Order 25, which regulates the amendment of pleadings, and Order 30, which regulates the issuance of a summons for directions preparing the ground for the speedy progress of the action to trial. They now provide for strict rules and deadlines that, if not followed, may lead to detrimental consequences for the actions pending before the courts.
According to the amended Order 30 of the Civil Procedure Rules, the plaintiff in every claim, irrespective of the scale of the action, is obliged to issue a summons for directions within 30 days from the time when the pleadings shall be deemed to be closed, and before the plaintiff takes any fresh step in the action other than an application for an injunction. If the plaintiff does not file such a summons even after he or she receives a notice from the defendant requesting him or her to do so, then the claim shall be deemed as abandoned and will be dismissed by the court, with the costs burdening the plaintiff. The same rule applies in relation to counterclaims. Such a dismissal does not preclude the plaintiff from filing a new action or counterclaim, but the payment of the costs as described above will be a prerequisite before the filing of the new action, and the fees for the filing of a new action will be double those attributed to the scale of the action or counterclaim.
Where a summons for directions is issued, each party is required, within 30 days after the filing and the service of the summons, to complete a particular annex and to specify the directions the party wants the court to issue. Said annex provides the parties with the possibility of applying for various orders. A party who fails to complete the annex adequately is precluded from requesting orally the issuance of any directions that have not been requested in writing with the completion of the annex, unless a good reason is provided to justify exercising the court’s discretionary power.
The amended Order 30 provides that a claim where the financial dispute does not exceed €3,000 will be allocated by the registrar to a ‘fast trial’ schedule. There are several provisions that allow for the quick adjudication of these claims, such as exchange of evidence in writing (in the form of affidavits) that will constitute the entire evidence that shall be given to the court by a witness and will be the sole testimony given for the hearing, unless the court decides that there is the need for a party or witness to be directly examined or cross-examined, or following an application by a party.
Claims where the financial dispute exceeds €3,000 will be allocated by the registrar to a ‘hearings trial’ schedule, and the parties are required to provide the court with a list of names of the witnesses they intend to call accompanied by a summary of each witness’s testimony. The case will be heard in accordance with the written evidence filed; examination-in-chief, cross-examination and re-examination will follow, and must be carried out within specific time limits provided by the Rules. Where the parties agree, the court may give directions for the exchange of full evidence in writing so the procedure described above in the fast trial schedule will apply.
According to the amended Order 25 of the Civil Procedure Rules, the plaintiff may amend the writ of summons without obtaining leave of the court any time after the filing of the writ of summons, but before the service of the latter upon the defendant.
In the event that the pleadings have been exchanged between the parties and before the issuance of a summons for directions by the plaintiff in accordance with Order 30 above, the parties are allowed to amend their pleadings without the leave of the Court. Where this is the case, the other party to the claim has 15 days after the filing of the amended pleading to file his or her own amended pleading where this is deemed necessary.
After the issuance of the summons for directions in accordance with Order 30, no amendment is allowed unless the requested amendment relates to either a bona fide mistake made in the drafting of the pleading or in the event that new facts arise that were not in existence at the time of the filing of the writ of summons or any other pleading.
The amended Order 25 seeks to prevent extensive amendments that used to be allowed at any stage of the proceedings, to speed up the proceedings and thus the administration of justice.
If the provisions of the amended Orders 25 and 30 are followed, this should lead to a faster adjudication of the actions pending before the courts. However, the courts are still burdened with a huge volume of older cases whose adjudication takes precedent over the newer ones; therefore, at this stage the usefulness of the amended Orders remains limited.
III COURT PROCEDURE
i Overview of court procedure
In Cyprus, the courts follow and apply the procedural rules adopted for each type of court. The Civil Procedure Rules (CPR) apply to all district court civil procedures, in some instances mutatis mutandis. Additional procedural rules may be applicable depending on the type of the procedure, such as the Bankruptcy Rules or Companies Rules. Evidential matters are handled according to the Evidence Law.
ii Procedures and time frames
The first thing to be examined before a litigant commences legal proceedings in Cyprus courts is whether his or her right has been time-barred by reason of statutory-based limitation periods. These were set out in the Limitation of Actions Law, which was suspended in 1964 by the Law of Suspension of Limitation of Actions of 1964. Since 2002 a number of laws have ‘revived’ the limitation period, but in practice these have not come into force yet.
The law that currently regulates the matter of limitation periods is the Limitation of Actions Law 88(I)/2012, which came into force on 1 July 2012 with a transition period of one year. Recently its force was suspended until December 2015 and at the time of writing has not been suspended further.
Legal proceedings in a district court are initiated when a writ of summons or an originating summons is filed and sealed thereat. The writ of summons may be generally endorsed, containing only a list of the remedies sought, or specially endorsed, containing a statement of claim, providing the factual background. Where a generally endorsed writ of summons is submitted, a statement of claim should be filed separately.
All actions filed by Cypriot plaintiffs must be accompanied by a retainer proving the appointment of the advocate. However, this is not a requirement in relation to foreign plaintiffs.
Copies of the writ of summons should be stamped by the court registrar as true copies and be served on the defendant. Service on a corporate entity must be effected either at its registered office on a person who is authorised to accept judicial documents or one of the company’s directors or its secretary. Service is usually effected via a private bailiff, unless a leave for substituted service is obtained. A writ of summons shall not be in force for more than 12 months from the day of its issue without a relevant renewal court order.
Upon service of the writ of summons, the defendant has 10 days to file an appearance and then a defence should be filed within 14 days.
Should the defendant fail to file an appearance within the prescribed period, the plaintiff may apply for and obtain a default judgment. A defendant may file an appearance even outside the prescribed time limit and such a filing blocks the issue of a judgment in default.
If the defendant files an appearance but not a defence, the plaintiff may file an application for issuance of judgment without a full hearing being conducted.
Moreover, where the defendant files an appearance or a defence to a specially endorsed writ of summons, the plaintiff may – where appropriate – apply for a summary judgment on the grounds that there is no defence to the action and the court will decide following a hearing.
When a defence is filed, the plaintiff may file a reply to the defence within seven days from its service.
If the defendant submits a counterclaim, the plaintiff must file a reply to the defence and a defence to the counterclaim within seven days from its service.
However, quite often the parties do not follow the prescribed time limits; thus the process takes longer to be completed as the periods prescribed by the CPR may be and usually are prolonged by the court. The filing of the pleading out of time is considered an irregularity, but it is usually possible for a party to take steps to remedy such irregularities.
Once the pleadings are closed, the case will be set for directions before a judge, who will give directions to the parties for matters such as disclosure and discovery of documents, requests for further and better particulars, determination of facts agreed by the parties, etc.
There is wide range of other applications that may be made before the hearing of the action commences (e.g., for the consolidation of actions or amendment of the pleadings). Notably, applications for amendment may be allowed even after the hearing begins, but almost any other application should be filed or entertained before the hearing.
Once all interim procedures are concluded, the case will be set for hearing and, depending on the court schedule, it may take approximately three years from the date of its filing to be heard.
At the hearing the plaintiff must prove his or her case on the balance of probabilities by adducing sufficient and admissible evidence as regards all allegations that are not admitted by the defendant; the same applies for the counterclaimant. The hearings are public, but in particular cases where secrecy is required (e.g., to protect a minor) they are conducted privately. Following the conclusion of the hearing and the advocates’ final addresses, a judgment is issued.
The plaintiff, if successful, will need to take steps to enforce the judgment against the defendant, such as enforcement against moveable and immoveable property and third-party enforcement orders against banks holding money or assets belonging to the judgment debtor.
A plaintiff or a defendant who is raising a counterclaim may, if it is deemed necessary and appropriate, file an application for interlocutory relief (e.g., a Mareva injunction, Anton Piller order or the appointment of a receiver) either by summons or, in urgent circumstances, without notice. For a court to grant such relief the following requirements must be met:
- a there is a serious question to be tried;
- b the applicant’s claim has some prospect of success; and
- c it will otherwise be difficult or impossible to ensure complete justice at a later stage.
The court will further examine whether it is fair and just for such an order to be issued, according to all relevant circumstances. It is possible for the court to issue an interim order before a pleading has been filed on the basis of the evidential material in support of the application. When the application is made ex parte, the applicant must fully and frankly disclose all material facts to the court, even the respondent’s possible defences.
iii Class actions
Class actions are permissible where the right of relief of the plaintiffs arises out of the same transaction, there is a common question of law or fact and it is advantageous or convenient to do so (e.g., to save costs and time).
iv Representation in proceedings
It is possible, although uncommon, for litigants to represent themselves in legal proceedings.
It is more common for this to happen in criminal proceedings for minor offences (e.g., minor road traffic offences) and, more rarely, in small-claims cases.
In civil proceedings corporations may only be represented formally by a lawyer in court.
v Service out of the jurisdiction
Documents initiating judicial proceedings may be served outside the jurisdiction of Cyprus on any person (natural or legal) pursuant to the provisions of Rule 6 of the CPR.
Where the defendant is a foreigner, the plaintiff must apply ex parte to court for leave to seal the writ of summons and then to serve a notice of the writ of summons to the defendant outside the jurisdiction. To that effect, the plaintiff should satisfy the court that he or she has a prima facie case, state the country in which the defendant may be found and whether or not the defendant is a Cypriot citizen. Where there is also a Cypriot defendant to the action, no permission for the sealing of the writ of summons is required.
Cyprus has entered into a number of bilateral and multilateral treaties and conventions for legal assistance in civil and criminal matters, providing for legal assistance in serving documents in the contracting parties’ jurisdiction. In such cases, the requirements of the relevant treaty and of Rule 6 of the CPR must be complied with. Bilateral treaties have been entered into with, inter alia, Belarus, Bulgaria, China, the Czech Republic, Georgia, Germany, Greece, Hungary, Russia, Serbia, the Slovak Republic, Slovenia, Syria and Ukraine. Furthermore Cyprus, together with 67 other contracting states, has entered into the Hague Convention of 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
Service of judicial documents within Member States of the European Union must be effected pursuant to the provisions of Council Regulation (EC) No. 1393/2007.
On occasion a plaintiff may be allowed by the court to serve in an alternative manner through a mode of substituted service (through a letter or a private carrier, publication, etc.).
vi Enforcement of foreign judgments
Foreign judgments issued by an EU Member State court can be recognised and enforced in Cyprus under the provisions of Council Regulation (EC) 44/2001 on the Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters, which provides for a simplified procedure, nearly automatic, entailing a typical check of the documents attached on the ex parte application for recognition. The party against whom enforcement is sought may appeal against the declaration of enforceability within a month’s time (or two months if the said party resides abroad) from the service of the declaration of enforceability upon the said party. The procedure provided in the Regulation must be followed.
Enforcement of judgments can also be achieved via Council Regulation (EC) 805/2004, which creates a European enforcement order for uncontested claims, offering significant advantages when compared with the procedure provided by Regulation (EC) 44/2001.
If a foreign judgment is issued by a court of a state with which Cyprus has entered into a bilateral or multilateral agreement for this purpose, the provisions of the treaty together with those of national law, namely the Foreign Court Judgments (Recognition, Registration and Enforcement based on Convention) Law of 2000, must be followed. If the foreign judgment was issued by a court of a Commonwealth country, the provisions of the Foreign Judgments (Reciprocal Enforcement) Law 1935, Chapter 10, will apply.
The Cyprus courts cannot review a judgment as to its substance. The common denominators for refusing recognition and enforcement are, inter alia, jurisdictional matters, issues of public policy and lis alibis pendens and if the judgment is inconsistent with previously issued judgments between the same parties.
Enforcement of a judgment in Cyprus may take several forms, such as a writ of execution for the sale of moveable property, the registration of an encumbrance order (memo) over immoveable property, an execution of a writ of attachment by which money held in a bank account may be used for the payment of a judgment debt, or particular execution measures with regard to the freezing or attachment of shares belonging to a judgment debtor.
vii Assistance to foreign courts
Cypriot courts can provide various types of assistance to foreign courts. Pursuant to bilateral treaties and multinational conventions that Cyprus has entered into with various countries, Cypriot courts can assist in the service of judicial and extrajudicial documents, provide information regarding Cypriot law and legal procedures, assist in the taking of evidence by witnesses or experts within their jurisdiction upon the request of a foreign court, recognise and enforce court judgments or arbitral awards and extradite persons. Cyprus has also entered into the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.
As a Member State of the European Union, Cyprus is also bound by Council Regulation (EC) 1206/2001 on Cooperation between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters, which provides for a 90-day deadline for the execution of a request for the taking of evidence, hence facilitating expeditious assistance among Member State courts.
viii Access to court files
Although the court procedure is usually a public procedure and anyone can observe it, only the parties to an action or matter are entitled to inspect or obtain copies of pleadings or documents filed in the court file kept by the court registry within the framework of the particular procedure and always in the presence of a court official. Any other interested party could proceed to a general search or inspection of the book of filings or obtain copies of documents in a court file or inspect the same, following an application to the court explaining in detail the reasons for the application or (in most cases) only if they are allowed to intervene in the proceedings and be added as parties.
The public can access the judgments of the Cypriot courts – both interim and final – via public websites.
ix Litigation funding
The litigation is funded by the parties themselves and usually the losing party bears the costs of the winning party. There are instances where a party may request the provision of legal assistance from the state where he or she cannot afford to pay the litigation costs without limiting his or her basic needs and those of his or her family. We are not aware of any instances of litigation funding by a disinterested third party.
IV LEGAL PRACTICE
i Conflicts of interest and Chinese walls
Lawyers who are members of the Cyprus Bar Association are subject to the Code of Conduct Regulations, setting out among other things the duties and obligations of lawyers towards clients. In particular, it is provided that lawyers must not act on behalf of two or more clients in the same matter if there is a conflict, or a significant risk of conflict, of the clients’ interests. Lawyers should refrain from acting for a new client if there is a risk of breach of confidentiality. To this effect it is standard practice to conduct conflict checks before accepting to act for a client.
Non-compliance with any of the Code of Conduct Regulations may lead to disciplinary actions for breaches against them. Therefore, there is little need for the use of mechanisms employed by other companies such as Chinese walls within legal firms.
The Chinese walls concept in Cyprus applies to companies regulated by the Cyprus Securities and Exchange Commission (CySEC), which are required under the CySEC Laws and Regulations to establish policies and procedures throughout their business to effectively manage any conflicts of interest that may arise while carrying on their business. For example, investment companies should take adequate steps to ensure that there is a clear distinction between the activities of their different departments and ensure that no single person gathers conflicting information where the exchange of information may harm the interests of any client.
ii Money laundering, proceeds of crime and funds related to terrorism
Cyprus has enforced strict anti-money laundering regulations, ratifying international conventions and harmonising domestic legislation with EU directives. The Prevention and Suppression of Money Laundering Activities Law L.188(I)/2007, as amended, implements the provisions of the Third Money Laundering Directive (2005/60/EC) and regulates the activities and services of professionals who, by virtue of their business activities, are in an exceptional position to assist money laundering.
Some of the lawyers’ responsibilities under the Law are:
- a the identification and reporting of suspicious transactions;
- b the adoption of client identification and record-keeping procedures and client due diligence in accordance with the Law;
- c the retention of the relevant records for at least five years from the carrying out of the transaction or the end of the business relationship;
- d the appointment of a money laundering compliance officer;
- e the adoption of enhanced due diligence measures in relation to high-risk clients; and
- f to adequately inform employees of the relevant principles and procedures for the prevention of money laundering and of the requirements provided by the Law as well as the ongoing training of employees.
The Cyprus Bar Association is the supervisory authority appointed for lawyers and, together with the Unit for Combating Money Laundering, is responsible for monitoring the compliance of members under their supervision and for taking measures against non-compliance.
V DOCUMENTS AND THE PROTECTION OF PRIVILEGE
Privileged documents cannot be used as evidence and their admissibility can be challenged by the party who can claim the privilege. Such documents include confidential communications between lawyers and clients for the purposes of litigation, documents that tend to self-incriminate and documents sent ‘without prejudice’.
More specifically, communications between lawyers and clients are privileged where the lawyers’ professional opinion or assistance is sought, whether it relates to court proceedings or not, and it is designed to protect the confidentiality of the lawyer–client relationship. Communications cover phone calls, face-to-face discussions, letters, emails, etc.
Legal professional privilege applies to practising but not in-house lawyers, given that in-house lawyers, under Cyprus law, are not members of the Cyprus Bar Association.
This privilege can be separated into two categories, namely legal advice privilege (communications between clients and lawyers for obtaining legal advice) and litigation privilege (see below). Although different in scope, the basic principles applicable are the same.
Litigation privilege only arises when litigation is in prospect or pending. Any communications between the client and lawyer, or between one of them and a third party, will be privileged if they are created for the sole or dominant purpose of either giving or getting legal advice with regard to the litigation, or collecting relevant evidence. The court will look at the purpose of the document objectively, taking into account all the circumstances.
The right to professional privilege can be waived only by the client or under certain circumstances in accordance with the Prevention and Suppression of Money Laundering Activities Law.
Documents of a without prejudice nature are generally inadmissible in evidence on grounds of privilege. Nonetheless, in recent Cypriot case law without prejudice communications were considered as probably being admissible within the framework of an interim proceeding.
ii Production of documents
Under Order 28 of the CPR, any party to a proceeding may request an order of the court with a relevant application ordering another party to disclose under oath the documents that are or were in his or her possession and relate to the matters of the proceedings and to allow for their inspection. The court may order such a disclosure on its own initiative. Where a party who has been ordered to proceed to such a disclosure fails to do so, that party will not be allowed to submit those documents into evidence.
Documents referred to in pleadings or in affidavits must be produced or allowed for inspection where the other party requests it in writing. If a document that is requested to be produced is claimed to be privileged, the court after inspecting it will decide whether it should be produced.
The parties should disclose all documents relevant to the matters of the litigation and that they plan to use during the hearing.
VI ALTERNATIVES TO LITIGATION
The most common means of dispute resolution in Cyprus is litigation. Negotiation can take place either before the initiation of judicial proceedings or during the proceeding. However, alternative means of dispute resolution have been gradually and increasingly used, such as arbitration, mediation and conciliation. Many professionals have been training in these fields to obtain relevant qualifications and to be able to offer these services to their clients, thereby promoting these methods of dispute resolution, which have various benefits against litigation.
Arbitration has long been used as a means of dispute resolution for construction or building contract disputes and its use is mandatory in cases of disputes relating to cooperative institutions. Arbitration clauses have increasingly been used in all forms of contracts as the means of resolving disputes arising out of such contracts. A dispute submitted to arbitration may be resolved quicker and more cost-effectively than one submitted to litigation.
Domestic arbitration is governed by the Arbitration Law (Chapter 4), which provides, inter alia, for the procedure to be followed and for the powers of the arbitrator. The court also has specific powers such as the power to appoint an arbitrator under the provisions of the Law or issue orders for the security of costs, disclosure of documents, the maintenance or sale of goods that are the subject matter of the arbitration, security of the amount in dispute or other interim orders such as the appointment of a receiver.
Where there has been misconduct on the part of the arbitrator or referee, or the proceedings or an arbitration or award has been improperly procured, the court may set aside the award.
Cyprus has ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the New York Convention) by Law 84/79, therefore arbitral awards issued in Cyprus may be registered in and enforced in other states that are signatories to the Convention and vice versa. Strict compliance with the provisions of the New York Convention is required for a foreign arbitral award to be registered and enforced in Cyprus.
iii International arbitration
International arbitration is governed by the International Commercial Arbitration Law L.101/87, which is modelled after the UNCITRAL Model Law. L.101/87 provides for the procedure to be followed, the duties and powers of the arbitrators and the circumstances in which assistance from the national courts may be required, unless the above are not agreed by the parties. The national courts may issue interim orders in aid of arbitration.
If the parties have not agreed in their arbitration agreement the procedural law applicable to an international arbitration taking place in Cyprus, the procedural law will be L.101/87. Even if the parties have agreed to a different procedural law, L.101/87 may still come into play to fill gaps in the procedure or impose further duties or powers upon the arbitrators and the courts. Mandatory provisions of national law must always be followed irrespective of which substantial or procedural law is adopted by the parties.
Mediation is an alternative to litigation. Unlike in some other jurisdictions, mediation in Cyprus is not a compulsory step prior to resorting to court. It is a non-binding, private, confidential and low-cost procedure. Cypriot law 159(I)/2012 was passed to implement the Directive 2008/52/EC on mediation in civil and commercial matters.
It is a rather new concept in Cyprus and, according to the Cyprus Mediation Association, ‘there is strong opposition from legal circles, who loathe mediation because it bypasses legal proceedings’. This is one of the least preferred methods of ADR, since the parties may feel somewhat insecure about resorting to it as its outcome depends on the parties’ personal and business interests, and common sense rather than the relevant law.
On the other hand, it may be argued that parties have little to lose by choosing mediation since, even if a settlement is not reached, the process facilitates the designation of the facts and issues of the dispute, thus preparing the ground for any potential court proceedings.
Mediation is particularly used in family and employment law cases and other small disputes.
v Other forms of alternative dispute resolution
Conciliation is a non-binding procedure, very similar to mediation. It is considered an ‘extension’ of mediation and when the parties are unable to agree the third party can provide them with a non-binding opinion regarding possible settlement terms. The conciliator’s opinion is presented to the parties and, if not rejected, becomes a dispute resolution agreement.
VII OUTLOOK AND CONCLUSIONS
It is notable that because of the use of Cypriot companies in international corporate group structures there is a current trend involving actions regarding shareholder disputes and other corporate litigation matters. Court decisions on these matters may affect how corporate structures involving Cypriot companies operate, as well as how international investors may use a Cypriot entity in the future. Furthermore, litigation proceedings are often initiated in Cyprus in aid of arbitration proceedings, usually to obtain prohibitive or other interlocutory orders, again for the same reason as above. Lastly, the Cypriot courts usually promote a pro-enforcement approach to the registration and enforcement of foreign arbitral awards. Steps are being taken to modernise the Civil Procedure Rules so as to assist with the faster adjudication of disputes. However, the practical effect of these rules is currently limited, and their contribution to the general administration of justice remains to be seen.
1 Eleana Christofi and Katerina Philippidou are advocates and senior associates at Patrikios Pavlou & Associates LLC.