PORTUGAL Law and Practice Contributed by: Rita Samoreno Gomes and Petra Carreira, PLMJ
Despite recent efforts, there is still some reluc- tance to resort to mediation for dispute reso- lution, especially private mediation, probably because both parties and legal professionals are still unfamiliar with its scope and process. Nevertheless, mediation has become an impor- tant mechanism for solving consumer disputes. Conciliation is available in court proceedings, although it is seldom successful. The justices of the peace is a hybrid dispute res- olution tribunal, comprising a mediation stage followed by, if unsuccessful, a simplified judicial procedure. These are sought after for simple and small claims (not exceeding EUR15,000). 12.2 ADR Within the Legal System Both civil society and the Portuguese govern- ment have been encouraging the promotion of ADR in recent years, particularly arbitration. Nev- ertheless, there have also been some legislative and executive efforts to promote other methods of dispute resolution, notably mediation and conciliation. Tax, IP and consumer arbitrations are becoming increasingly popular following recent legislative changes. Public mediation systems have been set up, including in the justices of the peace. There have also been legislative changes to promote private mediation and ensure its alignment with EU regulation and international standards; for example, confidentiality and other structuring principles are legally ensured, limitation periods are suspended with the triggering of a mediation process, and mediation agreements are directly enforceable in specific circumstances. ADR mechanisms available in Portugal are vol- untary in nature but there are cases in which
resorting to arbitration is compulsory – eg, in some sports, IP, employment and consumer disputes. In Portugal, there are no sanctions for unreason- ably refusing ADR. 12.3 ADR Institutions In general, ADR institutions are efficient, well organised and keen to promote the use of ADR. The most well-reputed Portuguese arbitration and mediation centre is the Arbitration Centre of the Portuguese Chamber of Commerce and Industry, which provides modern and well-tested arbitration and mediation rules. 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration The Portuguese Arbitration Law is based on the UNCITRAL Model Law on International Com- mercial Arbitration, which lays down principles as fundamental as the autonomy of the par- ties and the arbitration clause, the principle of Kompetenz-Kompetenz, equality of the parties, fair process and the definitive character of the arbitral award. The Portuguese Arbitration Law includes the fol- lowing particular features: • the provision of a specific criterion for the arbitrability of disputes (mainly interests of an economic nature); • the provision of the negative effect of the principle of Kompetenz-Kompetenz; • the impossibility for the parties to resort to anti-suit injunctions to prevent the constitu- tion or functioning of the arbitral tribunal; and
1168 CHAMBERS.COM
Powered by FlippingBook