In a judgment of 10 February 20211, the Luxembourg Court of Appeal revisited the relationship between arbitration and the role of the national courts in summary proceedings.

In this case, a debtor appealed an interim payment order (référé-provision) issued by a vice president of the Luxembourg District Court in the context of interlocutory (or summary) proceedings. The creditor's request for advance payment was approved despite the fact that the parties had concluded an arbitration agreement.

While arbitrations are less formal than trials, and the rules of evidence normally do not apply, there are still “paper” exhibits to be introduced through sworn testimony. There can be arbitrations where all exhibits are electronically scanned and pulled up via laptops by all involved, but most of the time exhibits are copied and placed into multiple exhibit books prepared by counsel. Typically, the scheduling order issued by the arbitrator has pre-hearing deadlines for the exchange of all proposed hearing exhibits. Exhibit books are then created, and on the day of the hearing both sides show up with their own set of exhibit books. But this process of each side bringing their own exhibit books is a mistake. It can cause confusion at the hearing because many times there are identical material exhibits that have different exhibit “numbers,” and counsel, the witness and especially the arbitrator are looking around to find the right exhibit book. Why does the “contract” at issue or key letters or emails have to be Exhibit 24 in one side’s exhibit book, but Exhibit 43 in the other side’s exhibit book?