MACAU SAR, CHINA Law and Practice Contributed by: João Nuno Riquito, Bruno Almeida, Bernice Kwok and Daniel de Senna Fernandes, Riquito Advogados
however, choose to keep certain terms and con- ditions of the settlement confidential. 8.3 Enforcement of Settlement Agreements Settlement agreements are enforceable under the general terms and provisions of the Macau SAR Code of Civil Procedure. The terms for enforcement will depend on whether the terms of the settlement were disclosed in full, or only in part, to the court. If the matter to be enforced was endorsed by the court, the enforcement will follow the rules of enforcement of court deci- sions; if not, it will follow the rules for enforce- ment of contracts. 8.4 Setting Aside Settlement Agreements Settlement agreements endorsed by the court as res judicata may only be set aside by an extraordinary appeal, whereby the settlement will be declared null and void as a result of the res judicata ruling. The above does not prevent the parties from reaching an out-of-court agreement whereby they agree to settle the matter subject to the previous proceedings on a different manner. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant In civil declaratory proceedings, the court will: • declare the existence of the claimant’s rights or entitlements; • order the defendant to perform an action or fulfil a legal or contractual obligation; or • declare the constitution, modification or annulment of a particular legal relationship, contract or act.
Depending on the nature and particulars of the claim, the court may order remedies such as indemnity, compensation, or restitution of assets or monies. In certain circumstances, the court may also determine the payment by the defendant of a certain amount for each day, week or month of delay in the performance of a certain action (or omission) or the fulfilment of a certain obligation. 9.2 Rules Regarding Damages As general rule under the Macau SAR law, a suc- cessful party cannot be awarded in excess of the damages suffered as a result of breach of legal or contractual rights or obligations. The scope of indemnity is defined by causation: it compre- hends any and all damages that were caused by the relevant illegal and faulty actions (principle of adequate causation). Both losses – which include pecuniary damag- es ( danos patrimoniais ) and personal damages ( danos não patrimonais ) – and loss of profits (which is the net increase of the claimant’s assets that they fail to obtain due to the injury event) are included in the legal scope of indemnity. Losses and loss of profits can be present or future, but the latter are only subject to indem- nity when it can be established that they will effectively occur in the future (if the respec- tive amount cannot be determined at the time of the issuing of the award, its liquidation shall be referred to a later stage, when such losses become determinable). The parties may, however, agree in advance to the amount of compensation to be paid in case of default, delay or defective performance of cer- tain obligations, in which case the compensation to be awarded may be higher or lower than the
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