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Commercial Arbitration

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Portugal

Agostinho Pereira de Miranda and Sofia Martins
Miranda & Associados

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
    1. Portugal has been a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards since January 1995.

      As per article I (3) of the New York Convention, Portugal declared it would enforce an award rendered in the territory of another Contracting State on the basis of reciprocity. No other reservation was made by Portugal. 

  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
    1. Portugal ratified the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards. In 2002, Portugal also ratified the Inter-American Convention on International Commercial Arbitration, made in Panama on 30 January 1975.

  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
    1. The primary source of arbitration statutory law in Portugal is the Voluntary Arbitration Law (VAL), enacted by Law No. 63/2011, of 14 December 2011. It entered into force on 14 March 2012.

      The VAL is based on the UNCITRAL Model Law, and it applies to all arbitration proceedings with their seat in Portugal (article 61). 

  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
    1. The leading commercial arbitration institution is the Centro de Arbitragem (Arbitration Centre) of the Câmara de Comércio e Indústria Portuguesa (Portuguese Chamber of Commerce and Industry), which acts as appointing authorities under certain circumstances (www.centrodearbitragem.pt).

      Recently, another promising institution was launched - Centro de Conciliação Mediação de Conflitos e Arbitragem da Concórdia (www.concordia.pt/centro.php). 

  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
    1. Foreign arbitral providers can and do operate in Portugal.

  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
    1. There is no specialist arbitration court operating in Portugal. However, the judiciary is generally familiar with the law and practice of international arbitration and plays an important role in assisting arbitral tribunals under the VAL. 

    Agreement to arbitrate

  7. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
    1. Arbitration agreements must be in writing and will be deemed to have met such requirement if documented either in a written instrument signed by the parties or in correspondence exchanged between them, including by electronic means of communication (VAL, article 2(1)(2)).

      In addition, reference in a contract to a document containing an arbitration clause will also be deemed to meet said requirement, provided that the contract is in written form and that the reference is made in such a manner as to render said clause an integral part of the contract (VAL, article 2(4)).

      An arbitration agreement entered into in breach of the aforementioned requirements shall be deemed null and void.

      Pursuant to the VAL, the arbitration agreement may consist of either an arbitration clause or a submission agreement (compromisso arbitral). “Arbitration clauses” deal with potential future disputes arising from a given contractual or extra-contractual relationship whereas “submission agreements” arise from existing disputes, whether or not submitted for resolution to state courts. The submission agreement shall describe the subject matter of the dispute while the arbitration clause shall specify the relationship to which the dispute relates. The VAL treats both types of arbitration agreements on equal footing (VAL, article 1(3)).

  8. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
    1. As a general rule, and unless special legislation submits a dispute to the exclusive jurisdiction of state courts, the VAL provides that parties are free to subject any dispute concerning an economic interest to arbitration (VAL, article 1(1)). The VAL further provides that parties may also submit to arbitration disputes not related to an economic interest, provided that parties are allowed to terminate such disputes by means of an amicable settlement (VAL, article 1(2)). There is, as such, a primary criterion complemented by a secondary one that together translate into the possibility of submitting practically all types of disputes to arbitration.

      If the arbitration is of an international nature and one of the parties is a state, a state-controlled organisation or company, said party may not invoke its domestic law to either challenge the arbitrability of the dispute, or its capacity to act as a party (VAL, article 50). Furthermore, there is a specific provision in respect of international arbitration stating that a dispute may be resolved by arbitration if the requirements set out either by the law chosen by the parties to govern the arbitration agreement, by the law applicable to the merits of the dispute or by Portuguese law are met (VAL, article 51).

  9. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
    1. Third parties may be bound to an arbitration clause from its inception or by means of subsequent adhesion. Pursuant to the VAL, third parties shall only be admitted to join the proceedings if they are subject to the arbitration agreement. In addition, the consent of all parties to the arbitration is required for said joinder to operate. If joinder is requested at a time where the arbitral tribunal has already been constituted, the third party must declare to accept the tribunal’s composition. When joinder is requested by the third party itself, such acceptance is presumed (VAL, article 36(1)(2)).

      The admissibility of the joinder is subject to the tribunal’s determination, which shall be issued after the original parties to the proceedings, as well as the relevant third party, are given the opportunity to provide their views on such joinder. According to the VAL, however, the arbitral tribunal must only allow joinder if it deems it will not disrupt the normal course of proceedings; and if justifiable reasons in support of joinder are found to be met (VAL, article 36(3)). 

  10. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
    1. The VAL is silent on this matter. However, the Arbitration Rules of the Arbitration Centre of Portuguese Chamber of Commerce and Industry allow for the possibility of consolidation in arbitrations administered by the Centre under certain circumstances, namely if the parties are the same and the requirements for third party joinder are met and as long as consolidation it is not inconvenient in light of the need to reconstitute the tribunal, the state of the proceedings or any other special reason.

  11. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?

    1. The VAL does not address this issue but Portuguese case law does recognise the “group of companies’ doctrine”.

  12. 12.Separability
    Are arbitration clauses considered separable from the main contract?
    1. Yes, arbitration clauses are considered separable from the main contract. Pursuant to the VAL, the nullity of a contract which contains an arbitration agreement shall not entail the nullity of the arbitration agreement, unless it is shown that the former would not have been concluded without the latter (VAL, article 18(2)(3)).

  13. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
    1. The arbitral tribunal is entitled to decide the issue of its own jurisdiction. For said purpose the arbitral tribunal may rule on the existence, validity and effectiveness of the arbitration agreement (VAL, article 18(1)). Parties may only challenge the arbitral tribunal’s jurisdiction within the time limit set for submission of the Statement of Defence, or jointly therewith. If relevant facts evidencing the tribunal’s lack of jurisdiction should supervene, parties may still raise the issue (VAL, article 18(6)).

      The arbitral tribunal may rule on its own jurisdiction either in the final award or by means of an interim decision. In the latter case, a party may challenge said decision before the state courts within thirty days (VAL, article 18(9)(10)). While the appeal is pending, the arbitral tribunal may continue the proceedings and render an award on the merits. Should the judicial appeal succeed, the arbitral award will be deemed void. If, on the other hand, the arbitral tribunal only rules on such issue in the final award, the decision by which the tribunal finds itself competent will only be open for challenge in setting aside proceedings.

      The VAL also recognises the negative effect of the principle of competence-competence whereby a state court asked to rule on a dispute subject to an arbitration agreement shall dismiss the case unless the arbitration agreement is deemed as manifestly null and void, inoperative or incapable of being performed. The court will not address this matter ex officio meaning that the party wishing to rely on the arbitration agreement must bring the issue before the state court (VAL, article 5(1)). 

  14. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
    1. When drafting an arbitration clause under which Portugal is the seat of arbitration, it should be taken into account whether the arbitration qualifies as international since slightly different special regime governs international arbitration (VAL, article 49). It must be further noted that an award granted in Portugal in an international arbitration where the applicable law is not Portuguese may be set aside whenever the enforcement or production of effects of said award in Portuguese territory is deemed to lead to a result that is clearly incompatible with the principles of international public policy (VAL, article 54). 

  15. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
    1. Institutional international arbitration is beginning to become more common in Portugal than ad hoc international arbitration. There is no reliable information available as to the adoption of the UNCITRAL rules in ad hoc international arbitrations held in Portugal. 

  16. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
    1. Unless otherwise agreed by the parties, where there are multiple claimants or multiple respondents, and the dispute is to be referred to three arbitrators, the claimants, jointly, and the respondents, jointly, shall each appoint an arbitrator (VAL, article 11(1)).

      Should the claimants or the respondents fail to reach agreement as to the appointment of their arbitrator, it will be for the competent state court to appoint said arbitrator (VAL, article 11(2)). Furthermore, in such cases, the state court may appoint all arbitrators in order to ensure equality of the parties.

    Commencing the arbitration

  17. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
    1. Should there be no prior agreement as to how to commence proceedings, the party intending to bring a dispute before an arbitral tribunal shall notify the opposing party of such fact. The arbitral proceedings in respect of a particular dispute commence on the date on which a request for arbitration is received by the respondent (VAL, Article 33(1) and (2)). 

    Choice of law

  18. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
    1. In an international arbitration, parties are free to choose the substantive law or rules of law applicable to the merits of the case provided they have not authorised the tribunal to decide ex aequo et bono. Any reference to a given law or legal system of a given state is considered, unless otherwise agreed, as referring to the substantive law of that state and not to its conflict of laws rules. If the parties fail to agree on the substantive applicable law, the arbitral tribunal shall apply the law of the state to which the subject matter of the dispute is most closely related to. In any case, the arbitral tribunal shall take into consideration both the contractual terms agreed by the parties and the relevant trade usages (VAL, article 52). 

    Appointing the tribunal

  19. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
    1. Any person enjoying full legal capacity may act as an arbitrator. No additional qualifications are required (VAL, article 9). Generally, arbitrators are not restricted by nationality, but whenever the appointment of an arbitrator falls upon the state court and an international arbitration is at stake, the court shall take into account the suitability of appointing an arbitrator of a nationality other than that of the parties (VAL, article 10(6)).

  20. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
    1. Non-nationals may act as arbitrators in arbitrations held in Portugal. Citizens from outside the European Union are generally required to hold a visa when entering the country, although exceptions are made to nationals of several countries with which Portugal has entered into bilateral agreements.

  21. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
    1. In all cases in which the parties are unable to agree on the appointment of arbitrators, said appointment falls with the competent state court. When appointing an arbitrator the state court must take into account the qualifications that have been agreed upon by the parties as well as any aspects considered relevant to assure the appointment of an independent and impartial arbitrator (VAL, article 10(6)). The decision of the state court on the appointment of an arbitrator is not subject to appeal.

  22. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
    1. Arbitrators are generally immune, much as state judges, but they may be held liable on account of dishonest or fraudulent exercise of their office. In addition to this, an arbitrator who unjustifiably withdraws from office may also be held accountable for damages resulting therefrom. Equally, arbitrators who unjustifiably act to prevent the award from being rendered timely may also be held accountable for damages resulting therefrom. 

  23. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
    1. Arbitrators may request for advanced payments of fees and expenses and when such advanced payments fail to be met, arbitrators may suspend or end the arbitral proceedings after a reasonable additional time limit has been granted for such purpose.

      The VAL does not, however, address the issue of security for costs.

    Challenges to arbitrators

  24. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
    1. Arbitrators may be challenged in case of justified doubts as to their impartiality or independence or whenever the qualifications agreed to by the parties are not met by the arbitrator (VAL, article 13(3)).

      Parties are free to agree on the procedures for the challenge of arbitrators. In the absence of such agreement, the party intending to challenge an arbitrator shall submit a written statement to the arbitral tribunal within fifteen days from the date on which it was given notice of the tribunal’s constitution or the date on which it became aware of the reasons for such challenge. The tribunal shall decide on the challenge unless the challenged arbitrator withdraws from office in the meanwhile or the counterpart agrees with the challenge.

      Similarly to the Model Law, the VAL allows the unsuccessful party in a challenge to proceed with such challenge before the state court, whose decision is final. While such request is pending, the arbitral tribunal may proceed with the proceedings and the final award may be rendered (VAL, article 14(3)).

      Recently, both the Portuguese Arbitration Association and the Arbitration Centre of the Portuguese Chamber of Commerce and Industry have adopted similar Codes of Ethics that expressly refer to the IBA Guidelines on Conflicts of Interest in International Arbitration.

    Interim relief

  25. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?

    1. The VAL expressly acknowledges the arbitral tribunal’s power to grant both interim measures and preliminary orders. Interim measures may be requested before the arbitral tribunal or a state court, indistinctively. A request for interim measures made by a party to a judicial court prior to or in the course of arbitral proceedings is not deemed incompatible with an arbitration agreement.

      Preliminary orders, on the other hand, may be requested by a party to an arbitral tribunal and will be granted without prior notice to the counterparties if found necessary to prevent the frustration of any interim measure requested (VAL, article 22).

      Although both interim measures and preliminary orders are binding on the parties, the latter are not subject to enforcement by state courts, whilst the former are.

      Anti-suit injunctions are expressly forbidden by article 5(4) of the VAL. 

  26. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
    1. Neither the VAL nor Portuguese law in general contain specific provisions for or against orders on security for costs. 

    Procedure

  27. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?

    1. Arbitral proceedings must comply with the following principles of due process, which are mandatory: the respondent shall be summoned to file a defence; parties shall be treated equally and shall be granted equal opportunity to present their case, whether in writing or orally, before the final award is rendered; and the adversarial principle shall be observed at every stage of proceedings (VAL, article 30(1)).

  28. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
    1. Pursuant to article 35(2) of the VAL and unless otherwise agreed by the parties, if the respondent fails to present its defence or otherwise participate in the proceedings, the tribunal is not allowed to issue a default judgement. In case of respondent’s refusal to participate in proceedings the arbitral tribunal must still decide on the merits of the dispute.

  29. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
    1. Parties enjoy full autonomy to choose the rules governing the proceedings, including rules on the types of evidence that may be admitted. Failing such an agreement it is up to the tribunal to set the rules it deems more appropriate to the case (VAL, article 30(3)(4)), including the power to determine the admissibility, relevance, materiality and weight of any evidence presented or to be presented.

      The arbitral tribunal may take into account the IBA Rules on the Taking of Evidence in International Commercial Arbitration provided that the parties so authorise, notably, by making express reference to said rules in the arbitration agreement or by agreeing on its adoption until the first arbitrator’s acceptance. 

  30. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
    1. Parties are allowed to request the arbitral tribunal to apply for the courts’ assistance in the gathering of evidence in case of refusal of the counterparty or any third party to provide evidence before the arbitral tribunal. Evidence will then be taken before the court and the results will be submitted to the arbitral tribunal (VAL, article 38).

  31. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
    1. Pursuant to article 33(1) of the VAL the parties wishing to rely on any documentary evidence may either file said documents with their Statement of Claim or Statement of Defence, or make a reference therein to any documents they intend to submit to the tribunal at a later stage.

      Also, the tribunal is entitled to decide to conduct proceedings on a document-only basis (VAL, article 34(1)).

      Following common practise in domestic proceedings, requests for production of documents in the possession of the other party or third parties tend to occur. If the party in possession of the document does not cooperate, any party may, upon authorisation from the tribunal, request assistance to a state court also in this regard (VAL, article 38). This possibility extends to arbitrations seated outside Portugal. 

  32. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
    1. The arbitral tribunal has the discretion to decide whether to hold a final hearing or not. Nonetheless, if a party so requests the tribunal is bound to hold a hearing for the production of evidence (VAL, article 34(1)).

  33. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
    1. Unless otherwise agreed by the parties, the tribunal may meet or conduct hearings at any place it deems appropriate in order to gather evidence or make any decisions (VAL, article 31(2)).

    Award

  34. 34.Majority decisions
    Can the tribunal decide by majority?
    1. The VAL provides for majority voting. If a majority cannot be reached the award shall be rendered by the chairman (VAL, article 40(1)). Also, if an arbitrator refuses to take part in the decision, the other members of the tribunal render the award without said arbitrator, unless otherwise agreed by the parties. Parties will, in such cases, be informed of the refusal to participate.

  35. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
    1. Issues relating to damages and available types of remedies are not governed by the VAL but rather by law applicable to the merits of the case, which may not be Portuguese law, or even a concrete state law, even for international arbitrations seated in Portugal (see question 18). The VAL does not contain any provision regarding limitations on the types of remedies that may be granted by an arbitral tribunal.

  36. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
    1. The new VAL no longer provides for dissenting opinions. Therefore it no longer needs to be included in the text of the award, nor does the award need to be signed by the dissenting arbitrator (VAL, article 42).

      Under the former Arbitration Law, dissenting opinions were common practice in Portugal.

  37. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
    1. The award must be made in writing and include the following information: the signatures of the majority of the arbitrators; the reasons upon which the decision is based unless the parties have agreed otherwise; the date on which the award was made; the place of arbitration; and allocation of costs between the parties (VAL, article 42(1)(2)(3)(4) and (5)).

      Where an award is signed only by the chairman or only by the majority of the tribunal, it shall state the reasons for the omission of the remaining signatures.

  38. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
    1. Unless otherwise agreed by the parties, the final award shall be rendered within 12 months from the date of acceptance by the last of the arbitrators (VAL, article 43(1)). Said time limit may be extended one or more times, for successive periods of 12 months, upon agreement of the parties. Extensions may also be determined by the arbitral tribunal, in which case they must be reasoned. Parties have the right to oppose such an extension, provided they mutually agree on the opposition (VAL, article 43(2)). 

    Costs and interest

  39. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?

    1. Unless otherwise agreed by the parties, the award shall contain a determination by the arbitral tribunal on the allocation of costs. Also, arbitrators may determine that one or more of the parties must compensate the counterparties for the costs and expenses incurred (including attorney fees), as long as evidence of the same is provided by the relevant party (VAL, article 42(5)).

  40. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
    1. Whether interests may be awarded, is a matter of substantive applicable law.

      Interest rates under Portuguese law are fixed by statute, subject to change every semester, but they only apply if no other interest rate has been agreed by the parties.

    Challenging awards

  41. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
    1. An award is not subject to appeal, either in domestic or international arbitrations, unless otherwise agreed by the parties (VAL, articles 46(1) and 53). Even if the possibility of appeal is agreed upon for international arbitrations, such appeal must be made to another arbitral tribunal and the rules for such procedure must be agreed upon.The only means to challenge an award pursuant to the VAL are the setting aside proceedings. 

  42. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
    1. A party may apply for the setting aside of an award made in Portugal in an international arbitration, with the following grounds (VAL, articles 54 and 46(3)(a)):

      •  if one of the parties to the arbitration agreement was incapacitated, or the agreement is not valid under the law to which the parties have agreed to submit it, or failing express reference thereon, under the VAL;
      •  if there has been a violation of any of the mandatory principles of due process applicable as per the VAL, with influence on the decision rendered;
      •  if the award deals with a dispute not contemplated by the terms of the arbitration agreement, or if it contains decisions on matters beyond the scope of the arbitration agreement;
      •  if the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties;
      •  if the tribunal condemns in an amount in excess of the claim, or deals with issues on which a decision was not required or does not deal with issues on which a decision was required;
      •  if the award is not signed by the arbitrators or the Chairman, where applicable, nor is it reasoned, as required by the VAL;
      • if the award is notified to the parties after the time-limits set under the VAL, or agreed to by the parties.

      An award may additionally be set aside if the court finds that (i) the subject-matter of the dispute cannot be decided by arbitration under Portuguese law, or (ii) the award has applied non-Portuguese law to the dispute and the decision is in conflict with Portuguese public policy (VAL, article 46(3)(b)).

      As mentioned in question 14, an award granted in Portugal in an international arbitration where the applicable law is not Portuguese may also be set aside whenever the enforcement or production of effects of said award in Portuguese territory is deemed to lead to a result that is clearly incompatible with the principles of international public policy (VAL, article 54).

  43. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
    1. Pursuant to article 46(5) of the VAL, parties are not allowed to waive their right to request the setting aside of an arbitral award. Appeals, as mentioned in question 41, are considered to be waived unless expressly otherwise agreed by the parties. 

    Enforcement in your jurisdiction

  44. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
    1. Where recognition and enforcement of an award that has been set aside or suspended by the courts of the country in which or under the law of which it was rendered, is requested, Portuguese courts may reject recognition and enforcement (VAL, article 56(1)(a)(v)). The VAL follows the New York Convention in this respect.

  45. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
    1. Although there is not much jurisprudence available on matters of recognition and enforcement, one may say that the principle that arbitral awards may not be reviewed on the merits is well ensconced in the Portuguese legal order. Courts seized with recognition and enforcement proceedings have been known, in general, to defer to arbitral awards

  46. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
    1. Pursuant to article 50 of the VAL, when the arbitration is international and a party to the arbitration agreement is a state, a state-controlled entity or a state-controlled company, said party may not resort to its domestic law to challenge the arbitrability of the dispute or its capacity to act as a party to the arbitration, nor may such party evade in any other way its obligations arising from such agreement.

    Further considerations

  47. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
    1. Arbitrators, the parties, or arbitral institutions, as the case may be are bound to maintain the confidentiality of any information and documents they may have access to in the course of arbitral proceedings. Nonetheless parties have the right to disclose any procedural act if necessary to defend their rights, and may also disclose procedural acts if so compelled to by any authority (VAL, article 30(5)).

      If not objected to by the parties, awards and other decisions issued by arbitral tribunals may be published, provided they omit the parties’ details (VAL, article 30(6)). 

  48. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
    1. The same rule applicable to arbitration proceedings in general is applicable to evidence and pleadings in particular. This is to say, evidence and pleadings are subject to confidentiality in general, but parties have the right to disclose it if necessary to defend their rights and may be called by authorities to disclose it (VAL, article 30(5)).

  49. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
    1. Counsel acting as such in arbitration proceedings are bound by the ethical codes and professional standards applicable to their profession in their own jurisdictions, while arbitrators are bound by the provisions of the VAL regarding the duties of independence and impartiality.

      Although there are presently no binding laws on ethics in arbitration, the Portuguese Arbitration Association drafted a Code of Ethics for Arbitrators which was approved in March 2010 and has been recently updated by APA’s Ethics Committee. This Code is mandatory for members of the Portuguese Arbitration Association, whilst any authorised arbitration centres, parties in ad hoc arbitrations and arbitral tribunals may opt to follow them. Also recently, the Arbitration Centre of the Portuguese Chamber of Commerce and Industry, the main arbitration institution in Portugal, has incorporated into its revised rules – effective 1 March 2014 – a Code of Ethics that is mandatory for all arbitrations under the auspices of said centre and that follows very closely the Code previously adopted by the Portuguese Arbitration Association.

  50. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
    1. Counsel or arbitrators participating in international arbitrations with seat in Portugal may rely on a rather modern arbitration law on voluntary arbitration inspired on the UNCITRAL Model Law, as well as on Rules of Arbitration of the major arbitration Centre in Portugal (identified above) that follow said law and incorporate the Arbitrator’s Code of Ethics, which is to be interpreted and integrated bearing in mind the IBA Guidelines on Conflicts of Interest in International Arbitration.

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GAR know-how provides reliable cross-jurisdictional insight to help cement the building blocks of international practice. In this section, select experienced practitioners answer commonly asked questions for key jurisdictions so allowing readers to be better-placed to solve the challenges of their working days.

Questions

    Infrastructure

  1. 1.The New York Convention
    Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
  2. 2.Other treaties
    Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
  3. 3.National law
    Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
  4. 4.Arbitration bodies in your jurisdiction
    What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
  5. 5.Foreign institutions
    Can foreign arbitral providers operate in your jurisdiction?
  6. 6.Courts
    Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
  7. Agreement to arbitrate

  8. 7.Formalities
    What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
  9. 8.Arbitrability
    Are any types of dispute non-arbitrable? If so, which?
  10. 9.Third parties
    Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
  11. 10.Consolidation
    Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
  12. 11.

    Groups of companies
    Is the 'group of companies doctrine' (or any other basis for piercing the corporate veil) recognised in your jurisdiction?


  13. 12.Separability
    Are arbitration clauses considered separable from the main contract?
  14. 13.Competence-competence
    Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?
  15. 14.Drafting
    Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
  16. 15.Institutional arbitration
    Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
  17. 16.Multi-party agreements
    What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
  18. Commencing the arbitration

  19. 17.Request for arbitration
    How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
  20. Choice of law

  21. 18.Choice of law
    How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
  22. Appointing the tribunal

  23. 19.Choice of arbitrators
    Does the law of your jurisdiction place any limitations in respect of a party’s choice of arbitrator?
  24. 20.Foreign arbitrators
    Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
  25. 21.Default appointment of arbitrators
    How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
  26. 22.Immunity
    Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
  27. 23.Securing payment of fees
    Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
  28. Challenges to arbitrators

  29. 24.Grounds of challenge
    On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
  30. Interim relief

  31. 25.

    Types of relief
    What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?


  32. 26.Security for costs
    Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
  33. Procedure

  34. 27.

    Procedural rules
    Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (eg, general duties of the tribunal and/or the parties)?


  35. 28.Refusal to participate
    What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
  36. 29.Admissible evidence
    What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
  37. 30.Court assistance
    Will the courts in your jurisdiction play any role in the obtaining of evidence?
  38. 31.Document production
    What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
  39. 32.Hearings
    Is it mandatory to have a final hearing on the merits?
  40. 33.Seat or place of arbitration
    If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
  41. Award

  42. 34.Majority decisions
    Can the tribunal decide by majority?
  43. 35.Limitations to awards and relief
    Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
  44. 36.Dissenting arbitrators
    Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
  45. 37.Formalities
    What, if any, are the legal and formal requirements for a valid and enforceable award?
  46. 38.Time frames
    What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
  47. Costs and interest

  48. 39.

    Costs
    Are parties able to recover fees paid and costs incurred? Does the 'loser pays' rule generally apply in your jurisdiction?


  49. 40.Interest on the award
    Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
  50. Challenging awards

  51. 41.Grounds for appeal
    Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
  52. 42.Other grounds for challenge
    Are there any other bases on which an award may be challenged, and if so what?
  53. 43.Modifying an award
    Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
  54. Enforcement in your jurisdiction

  55. 44.Enforcement of set-aside awards
    Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
  56. 45.Trends
    What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
  57. 46.State immunity
    To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
  58. Further considerations

  59. 47.Confidentiality
    To what extent are arbitral proceedings in your jurisdiction confidential?
  60. 48.Evidence and pleadings
    What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
  61. 49.Ethical codes
    What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
  62. 50.Procedural expectations
    Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?