PORTUGAL Trends and Developments Contributed by: Alexandra Nascimento Correia, Guilherme Santos Silva, Gonçalo Malheiro and Laura Cecília Lourenço, Abreu Advogados
“LAV”) now in force, the nature of arbitration in Portugal seems to raise some questions in terms of compatibility with the nature of class actions or possible collective arbitration. Article 1(1) of the LAV immediately demonstrates one of the major obstacles to this transposi- tion, as it mentions the arbitration agreement. Furthermore, the requirement for an arbitration agreement is absolutely contrary to the opt-out regime laid down in the class action regime, and it is not possible for the injured party’s silence to bind them to an arbitration decision in the same way that it binds them to the outcome of the class action. This consideration must be made regardless of whether there is a plurality of plaintiffs or defendants, as class actions are not about a mere plurality of parties but rather a multiple and sometimes indiscriminate repre- sentation of injured parties. Apart from this criterion, the interests at stake in class actions appear to be arbitrable under the terms of Article 1(1) and (2) of the LAV and are not unavailable rights. Therefore, and it may differ from case to case, the requirement of arbi- trability can be met in a class action. Another obstacle is the principle of confidential- ity, set out in Article 30(5) of the LAV. Under the terms of the general law, the incompatibility of the regimes was not so obvious. However, with the rationale for the Directive and the protec- tion of consumers in terms of their basic right to information, the principle of confidentiality can- not be considered to be fulfilled under any cir- cumstances, even though it is also characteristic of arbitration proceedings. In fact, recalling at least Article 19 of Decree-Law 114-A/2023, organisations have an express duty
to update their websites with information and the status of cases. The lack of practical examples makes it difficult to anticipate how these difficulties and contra- dictions might be resolved. However, interna- tional examples suggest rapid developments in the near future. Conclusion Even though the class action regime has been in force in Portugal for a long time, compared to other regimes around the world, the transposi- tion of the Directive has brought real and impor- tant additions to the regime. Decree-Law 114-A/2023 came into force on 6 December 2023, which means that the effects have not necessarily been felt in Portuguese courts yet. However, over the years, the num- ber of class actions brought before the courts in Portugal has increased, for reasons that seem obvious in terms of the regime but also because of the greater scope and multiplicity of national and cross-border legal relationships. Despite the fact that Decree-Law 114-A/2023 only applies to cases concerning the protection of consumer rights, which, moreover, are rep- resentative of the largest percentage of cases, it facilitates a system that already provided for the guarantee and protection of other constitu- tional rights, extending national competence to a cross-border competence and legitimacy. In fact, there has been a very clear increase in the number of class actions, with some con- sumer organisations particularly active in filing lawsuits and benefiting from court fee payment exemptions. Over time, it is likely that case law will develop on the merits of these lawsuits and on procedural issues.
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