PORTUGAL Law and Practice Contributed by: João Saúde, Miguel Santos Almeida, Alexandra Valpaços and Eduarda Peixoto, Sérvulo & Associados
ly from the arbitral proceedings are to be allocated between them. The tribunal may also order one or more parties to reimburse the other party or parties for all or part of the reasonable costs and expenses incurred in connection with the arbitration, where it considers such an allocation fair and appropriate and those costs have been duly demonstrated. In exercising this discretion, the tribunal may take into account both the outcome of the dispute and the par - ties’ conduct throughout the proceedings. Depending on the circumstances, costs may be allocated on the basis that the unsuccessful party bears them, in pro - portion to each party’s degree of success, with each party bearing its own costs, or by reference to the par - ties’ procedural conduct, particularly where one party has acted in bad faith, caused unnecessary delays or pursued manifestly unmeritorious claims. Costs resulting directly from the arbitration generally include: • the arbitrators’ fees and expenses; • institutional or administrative fees; and • reasonable party costs, such as legal fees, expert fees and translation expenses. An arbitral award may be challenged either by means of an appeal or by an annulment action. An arbitral award may only be subject to appeal (on the merits) to the competent state court if the parties have expressly provided for such a possibility in the arbitration agree - ment, and provided that the dispute has not been decided ex aequo et bono or by amiable composition. An arbitral award may only be annulled by the compe - tent state court in the following circumstances. • The party requesting annulment demonstrates that: (a) one of the parties to the arbitration agreement was affected by incapacity, or the agreement is not valid under the law to which the parties subjected it or, in the absence of any indication to that effect, under the Portuguese Arbitration Law; (b) there was a violation in the proceedings of any 11. Review of an Award 11.1 Grounds for Appeal
of the fundamental principles of adversarial proceedings and equality, with decisive influ - ence on the resolution of the dispute; (c) the award deals with a dispute not covered by the arbitration agreement or contains decisions that exceed its scope; (a) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the parties’ agreement, unless that agreement is contrary to a provision of Portuguese arbitra - tion law that the parties may not derogate from or, in the absence of such agreement, was not in accordance with this law and, in either case, such non-compliance had decisive influence on the resolution of the dispute; (a) the arbitral tribunal awarded a sum in excess of or different from the claim, decided issues that it could not have decided or failed to decide issues that it should have decided; (b) the award was not set out in writing, is not signed, or is not reasoned when it should be; or (c) the award was notified to the parties after the maximum time limit for notification had expired. • The court finds that: (a) the subject matter of the dispute is not capable of being resolved by arbitration under Portu - guese law; or (b) the content of the award violates the principles of international public policy of the Portuguese state. In international arbitrations, the parties may only pro - vide for the possibility of appeal to a different arbitral tribunal (not to courts). 11.2 Excluding/Expanding the Scope of Appeal Under Portuguese arbitration law, an arbitral award is not subject to appeal on the merits, unless the parties have expressly agreed otherwise. Accordingly, parties may expand the scope of review by agreeing that the award will be subject to appeal and by defining the applicable terms of that appeal. By contrast, the parties cannot exclude the statutory action for setting aside (annulment). The grounds for annulment are mandatory and derive from the Portu- guese Arbitration Law.
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