PORTUGAL Law and Practice Contributed by: Joaquim Shearman de Macedo, Pedro Metello de Nápoles, Luís Heleno Terrinha and Ana Coimbra Trigo, PLMJ
Any final arbitral awards that order the performance of an obligation are enforceable. Lastly, no kind of arbitration award may be attacked on the basis of its merits or for substantive reasons in the process of enforcement. 4.3 Categories of Arbitral Awards Not Enforced Arbitral awards aimed at assessing whether a situa - tion, right or fact exists – or those that deny orders – are non-enforceable by nature. Domestic awards that order generic obligations (ie, not detailed in terms of amount) require a prior declaratory phase prior to enforcement to specify the amounts attached to those obligations. With regards to foreign arbitration awards that have not yet become binding on the parties or were set aside or suspended, the rules of the New York Convention and of the Arbitration Law provide that enforcement can be pursued, and the court has discretion to decide to enforce or not. Similarly, if the award is in the process of being set aside or suspended abroad, the Portuguese courts also have the discretion to proceed with enforcement or stay the proceedings, if it considers it appropriate – unless the defendant requests the suspension of the enforcement in the competent court, provided that they actually post security for the value of the award. The same is the case with pending domestic arbitral awards set aside. 4.4 Process of Enforcing Arbitral Awards Foreign Arbitral Awards Foreign Arbitration Awards will only be effective in Por - tugal, save for mandatory provisions of international conventions, following a procedure for recognition and enforcement (Article 55 of the Arbitration Law). The interested party shall file a request with: • the original award (authenticated) or a certified copy; • the original arbitration agreement or a certified copy; and
• certified translation of the award or arbitration agreement into Portuguese if they are in a different language. The court competent for this application is the court of appeal for the district of domicile of party against whom the decision is to be invoked. The opposing party will be served notice to present its opposition within 15 days. After this exchange of writ - ten submissions, the relevant parties and the Public Prosecutors Office have access to the file for another 15 days, to be able to present their closing arguments. The hearing, if necessary, is conducted under the rules for appeals. Enforcement will proceed according to the domestic arbitral awards enforcement proceedings. Domestic Arbitral Awards Domestic arbitration awards and recognised foreign arbitral awards, as already mentioned, constitute enforceable titles. Thus, enforcement can be sought directly without any need for prior recognition or con - firmation procedure near first instance courts. The enforcement application is filed with the enforce - ment agent, who immediately prepares the ex parte attachment of assets ( penhora ). This will only not be the case if the agent rejects this filing for formal rea - sons or sends it to a judge to decide on any poten - tial irregularity or to confirm the requirements of an enforceable title. Following this, the defendant is served notice of the proceedings and of the ability to oppose the attach - ment of assets within 20 days. In this opposition, the defendant can request that the proceedings be stayed and offer to provide security. The competent court for enforcement proceedings is the first instance court of the place where the party against whom the action is initiated is domiciled. 4.5 Costs and Time Taken to Enforce Arbitral Awards Foreign Arbitral Awards Foreign arbitral awards, as mentioned, require a previ - ous procedure of recognition and enforcement. This
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