PORTUGAL Law and Practice Contributed by: João Saúde, Miguel Santos Almeida, Alexandra Valpaços and Eduarda Peixoto, Sérvulo & Associados
arbitral tribunal to determine jurisdictional issues in the first instance. 5.6 Jurisdiction Over Third Parties Non-signatories may be bound by an arbitration agreement in certain cases, such as through assign - ment of contractual position, subrogation or a con - tract for the benefit of a third party. Admission of a third-party intervention is subject to the arbitral tri - bunal’s discretion, after hearing the parties and the third party, and is allowed only where it will not unduly disrupt the proceedings and is justified by significant reasons. Such reasons include, in particular, the third party’s legal interest in the dispute, competing claims, joint liability issues, or potential rights of recourse arising from the tribunal’s decision. The admission of third-party intervention applies to both domestic and foreign third parties. Under Portuguese arbitration law, arbitral tribunals are expressly empowered to grant preliminary and interim measures. Unless the parties have agreed otherwise, the tribunal may, at the request of a party and after hearing the other side, order any provisional relief it considers necessary in relation to the subject mat - ter of the dispute. Such measures are binding on the parties; however, like in most jurisdictions, the arbitral tribunal has no direct coercive powers over assets or third parties, so enforcement may require assistance from the state courts. The law is drafted in broad terms and allows a wide range of interim relief, including: • orders to maintain or restore the status quo; • orders to refrain from certain conduct; • orders to provide security for costs or for the claim; and 6. Preliminary and Interim Relief 6.1 Types of Relief • measures aimed at preserving relevant evidence. In parallel, the law makes clear that a request for interim measures to state courts is not incompatible with an arbitration agreement, so parties may seek
judicial interim relief before or during the arbitration where stronger coercive mechanisms are needed. 6.2 Role of Courts Portuguese courts play an important supportive role in relation to interim and conservatory relief in arbitra - tion. Under Portuguese arbitration law, the existence of an arbitration agreement does not prevent a party from seeking interim protection from the state courts, and judicial intervention for that purpose is not regard - ed as being incompatible with arbitration. This power extends not only to arbitrations seated in Portugal, but also to foreign-seated arbitrations. Portuguese courts may grant interim relief in support of arbitral proceedings regardless of the seat of the arbitration. The types of relief available are those generally pro - vided under Portuguese procedural law, including measures aimed at: • preserving assets; • maintaining the status quo; • preventing imminent or irreparable harm; • protecting evidence; and • safeguarding the effectiveness of a future arbitral award. As regards emergency arbitrators, the Portuguese Voluntary Arbitration Act does not contain any pro - visions establishing or regulating emergency arbitra - tor proceedings; accordingly, Portuguese legislation neither expressly authorises nor prohibits their use. Emergency arbitrators may nevertheless be available where the parties have adopted institutional arbitra - tion rules providing for such a mechanism, in which case their authority derives from those rules rather than from the Act itself. The rules of arbitration of the Commercial Arbitration Centre of the Portuguese Chamber of Commerce and Industry, the Commercial Arbitration Institute of Oporto and the Concórdia Cen - tre for Conciliation, Mediation and Arbitration provide for an emergency arbitrator prior to the constitution of the arbitral tribunal.
746 CHAMBERS.COM
Powered by FlippingBook