PORTUGAL Law and Practice Contributed by: João Saúde, Miguel Santos Almeida, Alexandra Valpaços and Eduarda Peixoto, Sérvulo & Associados
6.3 Security for Costs The Portuguese Arbitration Law does not contain any specific rules on security for costs, and there is no consensus among Portuguese scholars and practi - tioners on whether arbitral tribunals may order secu - rity for costs. If admissible (by analogy with the general require - ments for provisional measures), a security for costs may be ordered if: • there is a serious likelihood that the party request - ing it will be recognised as having the right to com - pensation for the costs it will incur in the proceed - ings; • there is a well-founded fear that, in the absence of the security for costs, those costs will not be reimbursed; and • the harm inherent to the security of costs does not considerably exceed the damage that the party requesting it intends to prevent. The procedure of arbitration is governed primarily by the parties’ agreement, the applicable institutional rules (if any) and the Portuguese Arbitration Law. 7.2 Procedural Steps The Portuguese Arbitration Law imposes few manda - tory procedural steps: • the respondent must be properly summoned and given an opportunity to present its defence; • parties must be notified in advance of hearings and meetings; and • the tribunal must respect equality and the right to be heard. 7.3 Powers and Duties of Arbitrators Arbitrators have broad powers to organise the pro - ceedings, determine the admissibility and relevance of evidence, issue interim measures and decide the merits. They owe duties of independence, impartiality, diligence and confidentiality, as well as a duty to treat parties equally and to ensure that each party has a 7. Procedure 7.1 Governing Rules
reasonable opportunity to present its case. Breach of these duties may be grounds for challenge or annul - ment if it had a decisive impact on the award. 7.4 Legal Representatives There are no specific qualification requirements under the Portuguese Arbitration Law for legal representa - tives appearing in arbitral proceedings. Unlike pro - ceedings before Portuguese state courts (where rep - resentation is mostly reserved to lawyers with Bar admission requirements), representation in arbitration is largely governed by the parties’ autonomy and the procedural rules applicable to the arbitration. 8. Evidence 8.1 Collection and Submission of Evidence Unless otherwise agreed by the parties, the arbitral tribunal has discretion to determine the admissibility, relevance and weight of the evidence. Documentary evidence is typically the primary means of proof, while written witness statements are commonly submit - ted and, where appropriate, followed by oral cross- examination. Party representatives may also testify. Requests for document production are frequently made by the parties, within time limits established by the tribunal. Both party-appointed and tribunal-appointed experts are admissible, the latter either at the request of a party or on the tribunal’s own initiative. In practice, arbitral tribunals often look to the IBA Rules on the Taking of Evidence in International Arbi - tration for guidance. 8.2 Rules of Evidence There is no rigid statutory code of evidence applicable exclusively to arbitration. The tribunal has discretion to determine the admissibility, relevance, materiality and weight of evidence, subject to the parties’ agree - ment and due process requirements. 8.3 Powers of Compulsion Arbitral tribunals can order parties to produce docu - ments and attend hearings, but they lack coercive powers. If the provision of evidence is within the con -
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