PORTUGAL Law and Practice Contributed by: João Saúde, Miguel Santos Almeida, Alexandra Valpaços and Eduarda Peixoto, Sérvulo & Associados
The Portuguese Arbitration Law is closely based on the UNCITRAL Model Law. The major differences are that the Portuguese Arbitration Law contains rules on the appointment of arbitrators when there are multiple claimants or respondents, rules regarding third-party joinder and a default 12-month time limit (which may be extended) for issuing the award, from the date of No amendments to the Portuguese Arbitration Law have entered into force during the last 12 months. The legislative framework governing both domestic and international arbitration has remained stable, and Law No 63/2011 continues to be the cornerstone of arbitration in Portugal. acceptance of the last arbitrator. 2.2 Changes to National Law For an arbitration agreement to be enforceable under Portuguese law, it must be in writing (including elec - tronic communications) and must clearly identify either an existing dispute or the legal relationship from which future disputes may arise. Parties must have capacity and the subject matter must be arbitrable. Beyond these requirements, Portuguese law adopts a pro-arbitration stance, recognising, for example, references in a contract to a document containing an arbitration clause as a valid agreement. Portuguese courts consistently enforce such agreements unless they are manifestly invalid, inoperative or incapable of 3. The Arbitration Agreement 3.1 Enforceability Portuguese law adopts a broad and arbitration-friend - ly approach to arbitrability. Pursuant to Article 1 of the Voluntary Arbitration Law, a dispute is generally arbi - trable if it involves an economic interest or, where no economic interest is involved, if the parties are legally entitled to settle the legal relationship in dispute by agreement. This means that disputes involving non- monetary interests that may not be settled are not arbitrable – for example, disputes relating to family rights, such as those arising from filiation or adop - tion, are not arbitrable. The Law also provides for the being performed. 3.2 Arbitrability
possibility of disputes being expressly submitted, by a special law, to state courts or to compulsory arbitra - tion. In this regard, examples include criminal law mat - ters and insolvency proceedings, which are subject to the exclusive jurisdiction of state courts. Disputes on IP, antitrust, competition law, securities transactions and intra-company disputes are arbitrable, except in certain cases. The decisive criterion is therefore whether the rights Portuguese courts generally adopt a pro-arbitration approach when determining the law governing the arbitration agreement. The Portuguese Voluntary Arbitration Law does not contain a specific conflict- of-laws rule on this issue, and there is no settled judi - cial test. Courts will give effect to the parties’ express choice of law; in the absence of such a choice, they will determine the applicable law by reference to the relevant connecting factors, including the law govern - ing the underlying contract and the law of the seat of arbitration. Portuguese courts also seek to uphold the validity and effectiveness of arbitration agreements, in line with the principles of separability, party autonomy and the pro-enforcement policy reflected in the New York Convention. at issue are at the parties’ disposal. 3.3 National Courts’ Approach Where court proceedings are commenced in breach of a valid arbitration agreement, Portuguese courts will generally decline jurisdiction and refer the par - ties to arbitration, unless the arbitration agreement is manifestly null, ineffective or incapable of being per - formed. 3.4 Validity The Portuguese Arbitration Law expressly sets out that, while assessing the existence, validity or effec - tiveness of the arbitration agreement or the contract in which it is inserted, or the applicability of the arbi - tration agreement, to determine its own jurisdiction, the arbitral tribunal shall deem the arbitration clause as an agreement independent from the other clauses of the contract (rule of separability). The Portuguese Arbitration Law also sets out that the award issued by the arbitral tribunal in which the contract is deemed
743 CHAMBERS.COM
Powered by FlippingBook