PORTUGAL Law and Practice Contributed by: Joaquim Shearman de Macedo, Pedro Metello de Nápoles, Luís Heleno Terrinha and Ana Coimbra Trigo, PLMJ
• judgments given in default of appearance when the debtor did not have the opportunity to arrange for his or her defence; • judgments irreconcilable with another judgment given between the same parties in the member state addressed; • judgments irreconcilable with an earlier judgment given in another member state (or in a third state) between the same parties and with the same cause of action, if the latter fulfils the conditions necessary for its recognition in the member state addressed; and • judgments conflicting with other provisions pro - vided for in the Recast Brussels Regulation. Regarding non-EU foreign judgments, the Portuguese Code of Civil Procedure sets out the following grounds for refusal of recognition and enforcement: • if the judgment is not authentic – authenticity will be assessed based on rules in force in the foreign jurisdiction. • if the judgment is not final under the law of the jurisdiction where it was issued. • if the matter is not subject to the foreign court’s jurisdiction or falls within the exclusive jurisdiction of the Portuguese courts. • if the defendant was not served with the claim in accordance with the law of the foreign court, and the principles of adversarial proceedings and equality of the parties were not observed. • if there is lis pendens or res judicata in regard of a case running on or decided by Portuguese courts; and • recognition must not lead to a result that is mani - festly incompatible with the Portuguese principles of international public order – case law has con - sidered principles such as pacta sunt servanda (“agreements must be kept”), good faith, pro - portionality, prohibition of abuse of rights, non- discrimination, and protection of weaker parties as integrating the Portuguese public policy exception. Portuguese law does not set out express time limits to seek the recognition and enforcement of a foreign judgment. All decisions of recognition by the appel - late court are subject to appeal, provided that it meets
the requirements provided for in the Portuguese Civil Code of Procedure.
4. Arbitral Awards 4.1 Legal Issues Concerning Enforcement of Arbitral Awards Portugal has been a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”) since 1995 and is also party to the Geneva Convention on the Execution of Foreign Arbitral Awards and the Washington Convention on the Settlement of Invest - ment Disputes between States and Nationals of other States. In addition, the Arbitration Law in force (Law No 63/2011) mirrors the New York Convention rules on recognition and enforcement of arbitral awards, and more broadly the logic and many provisions of the UNCITRAL Model Law on International Commercial Arbitration 1985, as updated in 2006. With regards to arbitration in Portugal, which will be discussed in detail in this section on arbitral awards, an arbitral award has the same legal effects as a domestic judgment, both constituting enforceable titles. Both in relation to foreign and domestic arbitral awards, enforcement can only be halted based on a succinct list of grounds. Enforcement proceedings will only be completed once the creditor has been paid in full. Based on this robust pro-enforcement legal framework, arbitration is regularly employed in Por - tugal to resolve business disputes between domestic and foreign parties. 4.2 Variations in Approach to Enforcement of Arbitral Awards Portuguese law does not specifically provide for dif - ferent approaches depending on the type of arbitral award at stake. Enforcement of foreign Arbitral Awards will vary depending on their origin. Foreign arbitral awards will normally be subject to a previous declaratory phase for recognition prior to enforcement, and domestic arbitral awards are directly enforceable.
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