Investment Treaty Arbitration: Portugal

Albania (10 June 2007)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Algeria (8 September 2005)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Angola (not in force)¹

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Argentina (3 May 1996)

Yes

Yes

Yes²

Yes

No

6 months

Yes

Yes

Bosnia and Herzegovina (3 February 2009)

Yes

Yes

Yes

Yes

No

3 months

Yes

Yes

Brazil (not in force)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Bulgaria (20 November 2000)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

Cape Verde (4 October 1991)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Chile (24 February 1998)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

China (26 July 2008)

Yes

Yes

Yes³

Yes

Yes

6 months

Yes

Yes

Congo (not in force)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Congo, DR (not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Croatia (27 November 1997)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Cuba (18 June 1999)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Czech Republic (3 August 1994)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Egypt (23 December 2000)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Gabon (11 September 2013)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Germany (23 April 1982)

Yes

Yes

Yes

Yes

Yes

N/A

No

No

Guinea-Bissau (8 April 1996)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Hungary (8 October 1997)

Yes

Yes

Yes

Yes

No

6 months⁴

Yes

Yes

India (19 July 2002)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Jordan (6 January 2015)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Korea, Republic of (11 August 1996)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Kuwait (28 May 2011)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Latvia (17 July 1997)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Libyan Arab Jamahiriya (19 June 2005)

Yes

Yes

Yes

No

6 months

Yes

Yes

Lithuania (14 August 2003)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Macao, China (2 May 2002)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Mauritius (3 January 1999)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Mexico (4 September 2000)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Morocco (not in force)

Yes

Yes

No

Yes

No

N/A

No

No

Mozambique (31 October 1998)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Pakistan (14 December 1996)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Paraguay (4 November 2001)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Peru (18 October 1995)

Yes

Yes

No

Yes

Yes

6 months

Yes

Yes

Philippines (14 August 2003)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Poland (9 November 1993)

Yes

Yes

No

Yes

No

6 months

No

Yes

Qatar (19 July 2010)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Romania (17 November 1994)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Russian Federation (not in force)

Yes

Yes

No

Yes

No

6 months

Yes

Yes

São Tomé and Principe (not in force)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Senegal (not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Serbia (24 July 2010)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Slovakia (15 May 1999)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Slovenia (4 May 2000)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Timor-Leste (7 April 2004)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Tunisia (10 November 2006)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Turkey (19 January 2004)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Ukraine (18 July 2003)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

United Arab Emirates (not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Uruguay (3 November 1999)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Uzbekistan (14 March 2010)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Venezuela (7 October 1995)

Yes

Yes

No

Yes

No

6 months

No

Yes

Zimbabwe (not in force)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Energy Charter Treaty

(16 April 1998)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes⁵

Seat of the juridical person

In general, Portuguese BITs provide that juridical persons with seat in, and incorporated and/or functioning according to, the laws of a Contracting Party are investors.

The Tunisia BIT only requires the legal person to be incorporated in accordance with the legislation of a Contracting Party.

The Bosnia and Herzegovina BIT requires that the Bosnian juridical person have its seat, headquarters or permanent commercial establishment in the territory of that country.

The Russia BIT requires legal persons to have capacity, in accordance with the legislation of the Contracting Party, to perform investment in the territory of the other Contracting Party^{6 .}

Real/substantive economic activity

The BITs of India^{7 , Jordan8 , Lithuania9 , Morocco10 , Philippines11 , Slovakia12 and Uzbekistan13 explicitly require more than a formal connection to the Contracting Party, namely by referring to ‘business’ or ‘economic’ activities/interests performed or held by the investors.}

Permanent residence/nationality

Most Portuguese investment treaties provide that individuals who have the nationality of a Contracting Party according to the laws of that Contracting Party are investors.

The Bosnia and Herzegovina BIT requires Bosnian investors to be citizens and to have permanent residence or to be commercially established in a permanent way in Bosnia^{14 .}

The Kuwait BIT also includes ‘the Government of that Contracting State’ in the definition of investor¹⁵

Dual nationals

The Macau BIT provides that, with regard to Macau, investors are individuals who have a resident identity card in Macau and who do not have Portuguese nationality in accordance with the laws of Macau. Said BIT has additional rules regarding investors with dual nationality^{16 .}

The Uruguay BIT provides that in case of dual nationality each Party shall apply its own legislation to the investor and the investments made in its territory^{17 .}

Evidence of nationality

The Germany BIT states that individuals who have a passport issued by the competent authorities of a Contracting Party are nationals of that country, without prejudice to other mechanisms to establish nationality^{18 .}

The Cape Verde and Guinea-Bissau.

BITs provide that having a passport issued by the competent authorities of a Contracting Party is a presumption of nationality that can be displaced^{19 .}

Eligible Assets

Most Portuguese investment treaties define ‘investment’ broadly and tend to include ‘every kind of asset invested’ in a territory of a Contracting Party by a national of the other Contracting Party.

The Bosnia and Herzegovina BIT states that ‘investments’ have to be aimed at obtaining an economic benefit or any other benefit with a corporate essence^{20 .}

The Bulgaria BIT provides that the assets have to be ‘connected with economic activities’^{21 . A similar expression is used in the Czech Republic22 , Paraguay23 , Peru24 BITs.}

The Mexico BIT introduces some limitations with regard to claims to money and certain credits^{25 .}

Indirect investments

In general, Portuguese BITs do not expressly mention if indirect investment is included in the definition of investment.

The Kuwait BIT expressly includes in the definition of ‘investment’ assets controlled indirectly by a protected investor^{26 .}

The Poland BIT expressly refers, in the definition of ‘investment’, to ‘direct investment’^{27 .}

Compliance with national law

As a general rule, the BITs either define ‘investments’ as investments made in compliance or in accordance with the laws of the host party and/or state that the Contracting Parties will protect investments made in accordance with said laws.

Some BITs, such as the Cape Verde, Germany, Guinea-Bissau, Morocco, São Tomé and Principe, and Uruguay BITs do not explicitly mention this requirement.

llustrations of the FET standard

Most Portuguese BITs simply provide that each Contracting Party shall ensure fair and equitable treatment to investments.

However, some treaties, such as the China^{28 , Cape Verde29 and Guinea-Bissau30 BITs provide examples of ‘treatment less favourable’.}

The Russia BIT provides for fair and equitable treatment which excludes the adoption of discriminatory measures susceptible of creating obstacles to the management and holding of investments^{31 .}

Relationship with customary international law

The Hungary^{32 and Venezuela33 BITs provide that the treatment will be fair and equitable and in accordance with the principles of international law.}

The Kuwait BIT provides that FET and full protection and security shall be enjoyed ‘in a manner consistent with recognized principles of international law and the provisions of this Agreement’^{34 .}

Indirect expropriation

All Portuguese BITs refer to measures equivalent or tantamount to expropriation.

Judicial or other review

In general, Portuguese BITs recognise a right to investors to a judicial or other review of the expropriation in accordance with the law of the host State and/or the principles set forth in the treaty.

The Brazil, Bulgaria, Hungary, Morocco, and Paraguay BITs do not have an express provision in this regard.

The Zimbabwe BIT provides that the legality of any expropriation and the amount of the compensation ‘shall be subject to review by due process of law’^{35 .}

Protection of participation in local companies

The Czech Republic BIT provides that the provisions regarding expropriation shall also apply when a Contracting Party expropriates assets of a company which has a main office in the territory of one of the Contracting Parties and is constituted or incorporated in accordance with the laws of that Contracting Party and in which investors of the other Contracting Party own shares^{36 . The Angola37 and Kuwait BITs have similar provisions38 .}

5. Compensation

As a general rule, all Portuguese BITs require that the investor be provided with compensation equivalent to the market value of the expropriated asset before the date of expropriation and/or the time in which it was publicly known.

The Bulgaria, Cape Verde, Guinea-Bissau, Peru and Poland BITs do not mention the time in which the expropriation was publicly known.

The Morocco BIT only mentions a ‘fair and equitable compensation’^{39 .}

Common exceptions to MFN treatment

In general, Portuguese BITs expressly provide that the provision of ‘MFN’ and/or ‘National’ treatment to an investment does not extend to the benefits of membership of a customs union, monetary union or free trade area, nor to taxation agreements and/or taxation legislation.

The German BIT does not include any exception in this regard.

The Morocco BIT only excludes free trade areas, customs unions or similar international agreements^{40 .}

The China BIT adds that the MFN provision does not apply to ‘arrangements for facilitating small scale frontier trade in border areas.’^{41 .}

The Russia BIT adds that the MFN provision does not apply to agreements between Russia and the States of the former USSR^{42 .}

Limitations

The Germany and China BITs provide that a treatment given to an investor is not considered to be ‘less favourable’ if it is taken on the basis of public safety, public order, public health reasons, or public moral.

The protocol of the China BIT states that with regard to China, the NT protection does not apply to any existing non-conforming measures maintained, continued or amended within its territory.

Settlement of disputes

The Congo^{43 , Congo, DCR44 , Senegal45 and Serbia46 BITs state that the MFN clause or treatment also applies to the settlement of disputes.}

On the contrary, the UAE BIT provides that the MFN shall not apply to settlement of disputes^{47 .}

‘Full’ protection

In general, Portuguese BITs provide for full protection and security.

The Argentina BIT provides for ‘full legal protection’^{48 .}

The Brazil^{49 , Bulgaria50 , Chile51 , Morocco52 , Peru53 , Venezuela54 BITs provide that the contracting parties ‘shall protect’ investments by investors from the other contracting party, without mention to ‘full’ protection.}

The China BIT provides that investments ‘shall enjoy constant protection and security’^{55 .}

The Poland and Russia BITs do not explicitly provide for ‘protection’ of the investment.

Written/contractual undertakings

The Mexico BIT limits the application of the umbrella clause to obligations ‘assumed in writing’^{56 .}

The Qatar BIT provides that each Party shall fulfil any ‘contractual obligations’^{57 .}

Compliance with national legislation

The Jordan BIT requires the investments to have been approved by the host Contracting Party^{58 .}

Other issues

The wording of the Portuguese and Spanish versions of the Peru BIT is not entirely coincident ^{59 .}

The wording of the Portuguese and French versions of the Tunisia BIT is not entirely coincident^{60 .}

Non-impairment

Most Portuguese BITs order that the contracting parties may not impair by unjustified, arbitrary or discriminatory measures the management, maintenance, use, enjoyment and disposal of an investment.

The German, Bulgaria, Czech Republic, Peru, Poland, Romania, Slovakia and Tunisia BITs do not include an explicit general provision in this regard.

Compensation for damages arising from war or civil strife

In general, Portuguese BITs provide that if an investment suffers damages arising from war, revolution or other form of civil strife, the investor deserves treatment that is not less favourable than that granted to investors from the contracting party and/or from a third country.

The Morocco BIT does not grant this protection.

The Angola⁶¹, Congo62, Congo DCR⁶³, Jordan⁶⁴, Senegal⁶⁵ and Serbia⁶⁶ BITs have, in addition, provisions protecting the investors from damages caused by the authorities or armed forces of the host contracting party.

Transfer rights

In general, the Portuguese BITs recognise the investor’s right to freely transfer any profits, compensation, etc, arising from its investment outside of the host country.

Some BITs, such as the Angola⁶⁷, Chile⁶⁸ , Germany⁶⁹, Mexico⁷⁰ , Paraguay⁷¹, Uzbekistan ⁷² allow certain restrictions to transfer rights.

Extension of activities

The Egypt BIT provides that the FET, MFN and non-impairment rules should be applicable when investors of one of the Contracting Parties are already established in the territory of the other Contracting Party and wish to extend their activities or to carry out activities in other sectors. Such investments shall be considered as new ones and, to that extent, shall be made in accordance with the rules on the admission of investments⁷³. The protocols of the Latvia, Mauritius, Mozambique, Pakistan, Peru, Philippines, São Tomé and Principe, Slovenia, Turkey, Uzbekistan and Venezuela BITs have similar provisions regarding FET, full protection and security and non-impairment rules.

General limitations

The Russia⁷⁴ and Angola⁷⁵ BITs provide that each contracting party reserves the right to determine in which sectors and areas the activity of foreign investors is excluded or limited.

The India BIT has a general provision stating that nothing in the BIT ‘precludes the host contracting party from taking action for the protection of its essential security interests, public order or in circumstances of extreme emergency in accordance with its laws applied in a non discriminatory basis’^76.

Fork in the road

Most BITs which have multiple dispute resolution mechanisms have fork in the road provisions that explicitly state that the choice of one of those mechanisms is final^{77 .}

Some⁷⁸ allow investors to put an end to the national proceedings and submit the dispute to international arbitration if no decision is taken within certain time-limits and 279 allow interim procedures.

However, many BITs⁸⁰ provide that investors are allowed to go down the path of arbitration or the courts, without expressly stating that said choice is final.

Arbitration

The option of ICSID Arbitration is provided for in all BITs except in the Cuba, Germany, Macau and Morocco BITs.

Several BITs provide the possibility of arbitration under the ‘Additional Facility Rules’ in certain conditions^81.

Most BITs also (or instead) provide for UNCITRAL or other form of arbitration^82.

Internal remedies

The Protocol of the China BIT requires that Portuguese investors in China pursue, before initiating arbitration proceedings, an administrative review system, which shall not exceed a duration of three months.

The Hungary⁸³ and Turkey84. BITs require investors to pursue internal remedies before an arbitration tribunal is initiated.

For a dispute to be submitted for resolution, the Mexico BIT requires that the investor has delivered to the party to the dispute written notice of its intention to submit it a claim to arbitration at least 90 days in advance, and not later than three years from the date the investor first acquired or should have acquired knowledge of the events that gave rise to the dispute^85.

Procedural rules

As a general rule, Portuguese BITs simply refer to the relevant arbitration rules or institution.

The Brazil, India and Poland BITs introduce certain specialities in the election of arbitrators when the arbitration is UNCITRAL.

The Cape Verde⁸⁶ and Guinea-Bissau⁸⁷ BITs introduce certain specialities in the election of arbitrators when the arbitration is not ICSID.

The Mexico BIT is very descriptive, regulating, for instance, the appointment of arbitrators, consolidation of proceedings and the content of the award.

The Venezuela BIT provides that the award will only determine if the Contracting Party has breached any obligations set forth in the BIT, if that breach caused damages to the investor and, if so, the amount that should be paid to the investor as compensation^{8 .}

Applicable law

Most BITs do not have an express provision regarding applicable law.

Some BITs⁸⁹ state that they shall be governed by the BIT itself, the general rules and principles of International Law⁹⁰ and the law of the contracting party in which the investment was carried out, including its conflict of laws rules^{9 .}

Access to justice

The Kuwait BIT includes several provisions granting additional rights to the investors, such as ‘effective means of asserting claims and enforcing rights with respect to investments’, ‘the right of access to its courts of justice, administrative tribunals and agencies, and all other bodies exercising adjudicatory authority, and the right to mandate persons of their choice, who qualify under applicable laws and regulations for the purpose of the assertion of claims and the enforcement of rights with respect to their investments’^{92 .}

Government entity to which claim notices are sent

In the absence of an explicit provision in that regard, notice of disputes should be addressed to the President and the Prime-Minister.

Government department which manages investment treaty arbitrations

To be decided on a case by case basis.

Internal/external counsel

As far as it is publicly known, Portugal has not been sued under one of the above referred BITs. In commercial arbitrations the Portuguese government tends to use external counsel hired with or without a formal public procurement process.

Washington Convention implementing legislation

Portugal signed the Washington Convention on 4 August 1983 and the Portuguese government approved it through Decreto do Governo No. 15/84, of 3 April 1984, published on the Offical Gazette (Diário da República) No. 79/84, I, of 3 April 1984. The ratification instrument was deposited on 2 July 1984. The Washington Convention entered into force in Portugal on 1 August 1984.

New York Convention implementing legislation

The New York Convention was approved for ratification by Resolução da Assembleia da República No. 73/94, of 10 March 1994 and ratified by the President of the Republic through Decreto do Presidente da República No. 52/94, of 8 July 1994. The New York Convention entered into force in Portugal on 16 January 1995.

Legislation governing non-ICSID arbitrations

Besides the Portuguese Voluntary Arbitration Law^{93 (which has a generic chapter on international arbitration) there is no legislation governing investment arbitrations potentially seated in Portugal.}

Compliance with adverse awards

N/A

Attitude of government towards investment treaty arbitration

Neutral.

Attitude of local courts towards investment treaty arbitration

As far as it is publicly known, Portugal has not been sued under one of the above referred BITs. In general, Portuguese courts are arbitration-friendly and tend to refrain from annulling or rejecting the enforcement of arbitral awards.

N/A

Seguro de Investimento Direto Português no Estrangeiro – COSEC

It is a voluntary insurance scheme that covers political (ie, non-commercial) risks for Portuguese investors abroad. See Decreto-Lei No. 31/2007, of 14 February.