PORTUGAL Law and Practice Contributed by: João Saúde, Miguel Santos Almeida, Alexandra Valpaços and Eduarda Peixoto, Sérvulo & Associados
as null and void does not entail, by itself, the nullity of the arbitration clause.
appoint all members of the arbitral tribunal, designate the presiding arbitrator, and set aside any appoint - ment already made by a party. 4.3 Court Intervention Courts intervene in the selection of arbitrators when the parties’ agreed procedure for appointment fails, as described in 4.2 Default Procedures . The courts’ role is strictly limited to ensuring the proper constitution of the tribunal, and its decision is not subject to appeal. 4.4 Challenge and Removal of Arbitrators An arbitrator may be challenged where there are justi - fiable doubts as to their independence or impartiality, or if they do not possess the qualifications agreed by the parties. In the absence of an agreed procedure, the challenge must be submitted to the arbitral tri - bunal within 15 days. If the challenge is rejected, the challenging party may request the competent state court to decide the matter. Where an arbitrator is suc - cessfully challenged, withdraws or is unable to act, a replacement is appointed in accordance with the agreed or statutory appointment procedure. 4.5 Arbitrator Requirements Arbitrators have a continuing duty to disclose circum - stances that may give rise to justifiable doubts as to their independence or impartiality. Portuguese courts and arbitral tribunals increasingly refer to the IBA Guidelines on Conflicts of Interest in International Arbitration as a persuasive benchmark, although these Guidelines are not legally binding. The principle of competence-competence applies in Portugal: arbitral tribunals are empowered to rule on their own jurisdiction, including the existence, validity and scope of the arbitration agreement. This priority of the arbitral tribunal in deciding jurisdiction is recog - nised and reinforced by law and by case law. 5.2 Circumstances for Court Intervention The competence-competence principle is expressly recognised under Portuguese law, with both a positive 5. Jurisdiction 5.1 Challenges to Jurisdiction
4. The Arbitral Tribunal 4.1 Limits on Selection
Portuguese arbitration law affords the parties a high degree of autonomy in the selection of arbitrators. Arbitrators must be natural persons with full legal capacity. The parties’ freedom to select arbitrators is subject to mandatory principles of equality, non-dis - crimination and public policy, but there are no statu - tory restrictions regarding nationality, profession or Bar admission. The parties may agree on specific qualifications, such as technical expertise, industry experience or language skills, and such agreements are generally respected. 4.2 Default Procedures Under the Portuguese Voluntary Arbitration Law, if the parties’ agreed procedure for appointing arbitrators fails, a default mechanism applies. In a three-member tribunal, each party appoints one arbitrator and the two party-appointed arbitrators appoint the presiding arbitrator. If a party fails to appoint an arbitrator within 30 days of receiving the other party’s request to do so, or if the two arbitrators fail to agree on the presiding arbitrator within 30 days of the appointment of the second arbitrator, the competent state court will make the necessary appointment upon the request of either party. Where the tribunal is to consist of a sole arbitra - tor and the parties fail to agree on the appointment, the court will appoint the arbitrator at the request of either party. The Law also contains specific provisions for multipar - ty arbitrations. Where there are multiple claimants or multiple respondents in an arbitration before a three- member tribunal, they must jointly appoint one arbi - trator. If they fail to do so, the competent state court will appoint the missing arbitrator upon the request of any party. If it is established that the parties required to make the joint appointment have conflicting interests in relation to the merits of the dispute, the court may
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