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The European Arbitration Review 2018


Portugal is becoming a top tourism destination,1 is recovering from the economic crisis and, due to a favourable tax regime for foreign nationals, it has been able to attract a substantial number of foreign citizens, both from the EU and the rest of the world. What about arbitration?

Arbitration in Portugal

Arbitration in Portugal is governed by Law 63/11 of 14 December (the Law),2 which came in force in March 2012.3 The main characteristic of this law is that it was not prepared by any governmental body, but drafted by local practitioners4 and subject to wide public discussion before its final approval.

The Law clearly – and intentionally5 – follows the standard established by UNCITRAL Model Law. Nonetheless, the Law is not a mere copy of the UNCITRAL Model Law text and many changes were introduced to be more in line with the Portuguese legal tradition and because the UNCITRAL Model Law solutions were not considered entirely adequate or were deemed too vague. On the other hand, the new Law applies to both domestic and international arbitration, even if some minor additional provisions regulate specific aspects of the latter. It is therefore a monist law.

Six years have passed since its introduction and it is safe to say that the Law had not generated major criticisms or application problems, and arbitration continues to grow steadily as a favourite dispute resolution method. If in the not so distant past, the attractiveness of arbitration was a consequence of the lesser effectiveness of State courts, in the last decade arbitration has been seen more and more as the best way to resolve some types of disputes, particularly complex procedures requiring a reasonable degree of specialisation.

Trends and recent developments

Public law

There is a long-standing tradition of arbitration in the administrative field and the Portuguese State actively promotes the inclusion of arbitration agreements in all sorts of administrative contracts, and in the last decade many disputes have been solved through arbitration.

The State and State entities may enter into arbitration agreements provided that the disputes concern private law (as opposed to public law). In addition, the Law establishes that the State and State entities may be a party to arbitration agreements if authorised by law. Portuguese public law can be considered very generous in this regard and this means that arbitration clauses are possible in almost all contracts. This makes the Portuguese system one of the most advanced internationally in relation to public law.

The global crisis and the financial constraints that followed it took a heavy toll on public investment and, consequently, in a number of new contracts. Things are now changing and the expectation is that new arbitral disputes will soon arise. Furthermore, some decisions related with the cancellation of privatisation of transport concessions might make Portugal a respondent in investment protection arbitration for the first time ever.

Non-commercial arbitration

Arbitration is considered so successful that is being used to resolve disputes in other fields of law: arbitration has been extended to the settlement of tax disputes6 between private citizens/companies and the tax authorities. Although, in this case, the State maintains some degree of control over the appointment of arbitrators, it is a good sign of favor arbitratis in Portugal.

Following the same trend, in 2011 a law7 was enacted making it mandatory for a category of disputes involving patent disputes over medical drugs to be resolved through arbitration. Although these types of procedures cannot be seen as voluntary arbitration (particularly when the decision was driven by the purpose of clearing those disputes from State courts), it is again evidence of how arbitration is perceived as an alternative dispute resolution mechanism.

These last types of disputes, often involving global pharmaceutical companies and generic drugs manufacturers has given rise to hundreds of disputes in recent years and, despite the specific characteristics of those disputes (and the fact that it is not voluntary arbitration), they have generated a substantial number of decisions from State Appeal Courts, creating a steady flow of case law addressing arbitration Issues.

Arbitration dealing with corporate disputes

Although hardly anyone adamantly denied that these disputes could be subject to arbitration, some scholars defend they have particular characteristics that may make it impossible, in practice, for arbitration to function with all the necessary security.

Several practitioners and scholars sought reform in this area and, once more, the arbitral community decided to take the initiative and propose an amendment to the arbitration regime.

In 2016, a task force was set up within the Portuguese Arbitration Association and it published a draft law regulating arbitration dealing with corporate disputes. This text was subject to discussion in the legal community and was subsequently sent to the Ministry of Justice, for further discussion in the Parliament.

Together with that project, a draft regulation for institutionalised arbitration for these kinds of disputes was also prepared and subject to public discussion.

The project was well received and thus there are good expectations that there will soon be news on this subject.

Institutional arbitration

Despite the fact that institutional arbitration centres have existed for many years and that international centres are widely accepted, the fact is that ad hoc proceedings continue to be quite popular in Portugal. Although no official statistics exist, it seems that they continue to be the majority of the new cases.

In an effort to change that situation, the Commercial Arbitration Centre of the Portuguese Chamber of Commerce and Industry (the national leading centre) under the chairmanship of PLMJ Founding Partner and international arbitrator José-Miguel Júdice, has substantially revised its arbitration rules, and the new version of the rules came into force on 1 March 2014.8 Notwithstanding the fact that the revision came as a consequence of the enactment of the new arbitration Law, the opportunity was taken to bring the rules into line with those commonly used in international proceedings and to contribute to faster and more cost-effective proceedings, with the focus on arbitration users.

Together with the new rules, a Code of Ethics was adopted which makes express reference to the International Bar Association Guidelines on Conflicts of Interest in International Arbitration.

In 2015 there was also the introduction of more transparent rules for the selection of arbitrators by the Centre, which applied the best international practices.

Finally, fast-track arbitration rules and mediation rules were approved and came into force in 2016.9

Besides the Portuguese Chamber of Commerce and Industry, other institutions administrating arbitration exist, notably ‘Concórdia – Centro de Conciliação, Mediação de Conflitos e Arbitragem’ and ‘Instituto de Arbitragem Comercial’ of the Oporto Commercial Association.

Approach of State Appeal Courts

Since the enactment of the law, a large number of Appeal Court decisions have been addressing the arbitration costs issue.

In the same way, we have started to see Appeal Court decisions setting aside awards on the grounds of conflicts of interest, making wide reference to international standards such as the IBA Guidelines on Conflicts of Interests in International Arbitration.10

Although it may seem that the new Law has opened a Pandora’s box, these examples are evidence of the positive contribution of the new Law to the improvement of arbitration practice and to the maturity of the arbitral community.

Furthermore, it has been serving the purpose of evidencing the support given by State Appeal Courts to arbitration, highlighting a clear favor arbitratis.

The subjects addressed in each case vary substantially, but there are some themes that are recurrently being addressed and, fortunately, consistently decided.

  • Kompetenz-kompetenz: State courts have systematically refused to analyse allegations of the nullity of arbitration clauses, on the grounds that such competence belongs exclusively to arbitral tribunals and only in cases where it is evident that there is no arbitration clause may the State court decide on the matter directly.11
  • Conflicts of interest, independence and impartiality: there is a substantial number of recent Appeal Court decisions setting aside awards on the grounds of conflicts of interest, but also addressing independence and impartiality, and making wide reference to international standards such as IBA Guidelines on Conflicts of Interests in International Arbitration.12
  • International public policy: the state courts have been careful in highlighting the exceptional nature of international public policy (as opposed to internal mandatory rules) as grounds to set aside or refuse enforcement.13
  • Costs and arbitrators’ fees: the previous arbitration law did not address the issue of the arbitrator’s fees. The new law requires that they are agreed upon and provide the parties with the opportunity to challenge the amount charged if there is no prior agreement. As a consequence of that, many decisions have been issued on the matter.14
  • Access to justice: the financial crisis was instrumental to there being a number of situations in which defendants (or even claimants) try to avoid arbitrations based on lack of financial conditions to resort to arbitrations. Precedents are very case-specific.15
  • Set aside: courts have been reaffirming that the scope of the proceedings to set aside an arbitral award are limited and cannot imply a revision of the merits of the decision or a re-hearing of the case.16

Law 63/11 of 14 December (the Law)


Under the Law, any dispute regarding economic interests may be submitted to arbitration (article 1). In addition to that, disputes not involving economic interests may also be referred to arbitration, provided they concern matters where the parties are able to settle. Finally, arbitral tribunals may also be requested to interpret, complete, adapt or supplement existing contracts.

Besides dealing with disputes involving the State and State entities, as seen above, the Portuguese legislature extended arbitration to other fields of law, such as tax disputes and, in limited cases, employment disputes.

Arbitral clause and negative effect of the arbitration agreement

The Law reproduces the doctrine arising out of the New York Convention and the UNCITRAL Model Law. It demands a written agreement but gives the term ‘written’ the widest meaning possible (article 2).

As to the negative effect of the arbitration agreement, the principle of Kompetenz-Kompetenz is firmly reaffirmed in articles 5, 18 and 19, except in cases where the State court concludes that the arbitration agreement is clearly null and void, became inoperative, or is incapable of being performed. Special emphasis is given to the fact that, regardless of any proceedings in state courts, arbitration may commence or continue, and the parties cannot file a claim in the State courts with the sole purpose of discussing the validity of an arbitration agreement. State courts accept this system well and have been consistently upholding arbitration clauses,17 even when non-signatory parties are involved.18

The arbitral tribunal

The subject of the constitution of the arbitral tribunal (articles 8 to 16) has received special attention in the Law and there were many changes compared with the 1986 law, although one could say that such changes simply follow what has been the recent trend in international arbitration.

The tribunal will be composed of an uneven number of arbitrators or, if the parties are silent, three. These arbitrators must be independent and impartial, and have the duty to reveal any circumstances that, in the eyes of the parties, may affect such independence and impartiality.

If the parties fail to appoint one or more arbitrators, then, unless the parties have designated another entity for the purpose (such as an arbitration centre),19 the state courts have the power to make the appointment at the request of the most diligent party. When making appointments, the State court is obliged to take into account all relevant circumstances to ensure that an independent and impartial arbitrator is appointed. In the case of international arbitrators, the law establishes that the State court, if requested to appoint the chairman or a sole arbitrator, should consider the convenience of appointing arbitrators with a different nationality from that of the parties, applying the ‘neutrality’ rule.

In the case of multiple parties (article 11) and the failure of one of the sides to agree on the name of the arbitrator, the State court will appoint the missing arbitrator, but, in principle, this will not compromise the appointment of the arbitrator appointed by the claimant. This is only not the case if the State court is convinced that the parties have conflicting interests and that justice will better served if all the arbitrators are appointed by the State court. Therefore, the Dutco doctrine is accepted to a certain extent.

If a party wants to challenge an arbitrator (and he or she is not the sole arbitrator), the challenge request is submitted to the arbitral tribunal (articles 13 and 14). If the challenged arbitrator does not step down, the tribunal will decide with the participation of the challenged arbitrator. In case of denial of the request, the challenging party may apply to the State court, but the arbitral proceedings may follow their normal course.

The law contains a specific provision on arbitrators’ fees (article 17), which requires the parties to agree this question in writing before the tribunal is fully constituted. If that agreement is not concluded but proceedings continue, the arbitrators will establish their fees, but the parties are entitled to challenge them in the State courts.

Interim measures and provisional orders

This was a matter that generated some discussion, to the extent that there were doubts in face of the 1986 law as to whether arbitral tribunals could issue interim measures and, in the affirmative, which of the one that exist in the Civil Procedure Code.

One of the concerns when drafting the new law was to avoid any links with the Civil Procedure Law (to the extent that for many practitioners there was a trend of applying those rules directly to arbitration, thus strangling the procedure). It was agreed that the interim measures should be regulated independently from the procedural law. Without wanting to innovate too much, it was decided that the best solution would be to apply the UNCITRAL Model Law text as it was, making it part of the Law (articles 20 to 29).

Ultimately, it was an innovation in as much as the solutions now established in the arbitration law are different and, in some cases, go beyond what is possible under procedural law.

Conduction of the proceedings

As mentioned above, one of the concerns of the drafters of the law was for a clear line to be drawn between arbitration and civil procedure, thus ending a tendency to try to apply civil procedure provisions in arbitration proceedings.

Therefore, the whole of chapter V of the law (articles 30 to 38) was drafted to avoid any such association. In themselves, most of the provisions do not deserve any special comment: the parties are free to agree on the rules of the procedure and, failing such agreement, the tribunal will conduct the proceedings as it sees fit, in accordance with the principles of due process.

Taking a clear stand in a long worldwide dispute, the law expressly states that the arbitral proceedings are confidential (article 30.5), without prejudice to the possibility of publishing final awards and other decisions, provided that all elements identifying of the parties are removed.

Article 35 addresses default by one party and states that the failure of a party to contest a pleading or appear at a hearing will not be deemed an admission of facts. Therefore, the arbitral tribunal should continue the proceedings on ex parte basis. Although this appears standard today, it is the opposite of what would have happened before in accordance with the rules of civil procedure, where defaulting has severe consequences.

Article 36 deals with third-party intervention, which is permitted, provided the third-party is bound by the arbitration agreement. If the third-party was not an original party to the arbitration agreement, their intervention would only be valid if accepted by the other parties to the arbitration and only for the purposes of those arbitration proceedings. The intervention may take place before or after the constitution of the tribunal, but in this latter case, the intervening party will have to accept the tribunal as it is. In any event, the tribunal may always refuse the intervention if it considers that it may disrupt the conduct of the proceedings.

Article 37 regulates tribunal appointed experts. Although this was an issue covered by the UNCITRAL Model Law, it is a substantial evolution in view of what would happen in accordance with civil procedural laws, where the parties would each appoint an expert and the tribunal a third expert, and the three would agree on the result of the joint work.

Finally, article 38 regulates assistance by State courts, particularly in the production of evidence. The parties may apply for such assistance, but only after obtaining the leave of the arbitral tribunal.

Award and closing of the proceedings

Unless the parties authorised the tribunal to decide ex aequo et bono, the award will be taken in accordance with the applicable law (article 39) and the decision can only be appealed if the parties expressly agree on that (under the 1986 law the possibility of appeal was the norm). As we will see below, in international arbitration, the solution has specific characteristics.

Article 43 deals with the time limit to render the award. Under the previous regime, the time limit was six months and could only be extended with the agreement of the parties. A very stringent consequence, if the time limit was exceeded without approval of both parties, was that the tribunal would cease to have power to settle the dispute, the arbitration agreement itself would be forfeited and the parties would be sent to the State courts. This very strict regime led to a much more open approach in the new Law, which established a time limit of 12 months and gives the arbitrators power to extend this, unless both parties oppose. Finally, the arbitration agreement remains valid even if the time limit to render the award is exceeded.

Within the thirty days following the notification of the award, the parties may ask for the correction of the award (in respect of clerical and similar errors) and for the interpretation of any part of the award that it considers obscure or ambiguous (article 45.1 and 45.2). More interesting is the possibility of the parties asking the tribunal to render an additional award regarding claims or parts of claims they consider not to have been addressed in the award (article 45.5).

Challenging the award

As mentioned, under the 1986 regime, the norm was for awards to be subject to appeal. However, the regime was a dual-regime in as much as, together with the appeal, it also made provisions for the possibility of requesting the setting aside of an award, and that was – and still is – a right that could not be waived. Conversely, it did not include international public policy in the grounds to set aside.

With the new Law (article 46), and except when the parties explicitly admitted the possibility of appeal, the award may only be set aside. The grounds for setting aside an award are in line with what is established in the New York Convention. The process is treated as an appeal and dealt with in the appeal court.

After much debate, the Law includes the right for the courts to set aside an award on public policy grounds (but limited to the international public policy of the country).

Article 46.8 grants the state court the power, at the request of one of the parties, to send the award back to the arbitral tribunal to have some aspect readdressed, avoiding the setting aside of the award. This is a provision without precedent in the Portuguese system, but one that may be an effective solution that benefits the parties and avoids the need to start a new arbitration after the setting aside of the award.

International arbitration

Chapter IX of the Law deals with international arbitration. As mentioned above, and despite the existence of a chapter devoted to international arbitration, the Portuguese system cannot be classified as dualist, to the extent that the regime applicable to domestic and international arbitration is substantially the same (as expressly determined by article 49.2). However, this chapter is good evidence of how committed the Portuguese legislature was in enacting an arbitration-friendly regime, and with the aim of attracting international disputes to our territory.

Following French law, international arbitration is defined as arbitration international trade interests are at stake (article 49.1).

Article 50 deals with the inadmissibility of pleas based on the domestic law of a party. It is a very arbitration-friendly provision which rules that in international arbitration, where a state or a state-controlled entity is a party, that party cannot invoke provisions of its internal law to challenge the arbitration agreement.

Similarly, article 51 deals in equally favourable terms with the substantial validity of the arbitration agreement. Under this article, provided that the arbitration agreement is valid under the law chosen by the parties to regulate the arbitration agreement, under the law applicable to the merits, or under Portuguese law, it should be accepted by a tribunal seated in Portugal or by the Portuguese court if an award is challenged.

The law applicable to the merits is regulated by article 52. The tribunal should apply the law chosen by the parties and, failing such choice, the law that has the closest connection with the dispute. The article also makes express reference to the contractual terms agreed by the parties and the relevant trade usages.

Regarding the possibility of appeal, the norm is once more that there is no appeal unless the parties expressly agree otherwise (article 53). However, even if such an agreement exists, the appeal has to be brought before another arbitral tribunal, and the rules and terms applicable have to be set in advance. This is an innovative provision that deliberately seeks to limit the intervention of state courts in international arbitration.

Recognition and enforcement of foreign awards

All foreign awards must be recognised (ie, an exequatur must be obtained) before they can become effective in Portugal. This matter is covered by the New York Convention, so the scope of application of article 55 is reduced. In any event, the provisions of articles 55 to 57 are very similar to the ones contained in articles IV, V and VI of the New York Convention.

State courts

Articles 59 and 60 of the Law deal with the jurisdiction of state courts in all matters where their intervention may be required in accordance with the Arbitration Law.

Contrary to the previous regime, the competence has been centred in the appeal courts (second instance courts) and the aim of the drafters of the bill for the Law was that, in the near future, the appeal courts would have specialised sections devoted to arbitration, as currently happens in France. The competence of the Appeal courts covers appointment of and challenges against arbitrators; challenges against arbitrators’ fees; and any appeals (if admissible) or requests to set aside. Confirming the favor arbitratis, some of these procedures were classified as urgent.

For all other matters, from interim measures to assistance in the production of evidence, the competence remains with the first instance courts, as they are more suited for these types of processes.

The lusophone countries and Portugal as an international venue

No law is perfect and there is always room for improvement, but we are of the opinion that now is the time to consolidate the law and arbitration in Portugal.

Portugal has an arbitration law that can be considered in accordance with international best practices and standards. As noted above, the law clearly favours arbitration, and the tradition of Portuguese courts has been to uphold the arbitral awards that are brought before them. The country has a vast legal community and a number of lawyers actively involved in arbitration, both as counsel and arbitrators.

Portugal may be located at the western extreme of Europe, but it continues to have a very strong relationship with its former African colonies (Angola, Cape Verde, Guinea-Bissau, Mozambique and São Tomé and Príncipe), and most of them still have their legal system based on the Portuguese matrix. Together with a common language, this legal commonality places Portuguese practitioners in a privileged position to assist in the development of international arbitration involving those countries.

Those factors, together with the location and easy access, the facilities and resources available (including a large and learned arbitral community) and, of course, good climate, moderate prices and general attractiveness of the country, places Portugal – with Lisbon in pole position – in an ideal position to function as a venue for international arbitration.

For historical and cultural reasons, the Lusophone countries, in particular the Portuguese-speaking African countries, are the obvious candidates, but the challenge is to widen the scope of users to other countries.

In sum, if you have taken the time to read until now, the next step is to try Portugal as the seat of arbitration.


  1. Portugal Is ranked as the world’s 14th most competitive tourism destination in the Travel and Tourism Competitiveness report 2017 from the World Economic Forum.
  2. English, French and Spanish translations of the law are available at http://arbitragem.pt/legislacao/.
  3. The previous law was Law 31/86 of 29 August 1986. Although not specifically based on any other law, it was inspired by French law and it contained solutions not substantially different from the ones adopted in other countries, despite some particularities of the law that were a consequence of our civil procedural tradition. In fact, the main evidence of the success of that law was that it remained in force for 25 years, with only a minor amendment, and allowed arbitration to flourish.
  4. The Board of Directors of the Portuguese Arbitration Association, working pro bono. The authors of this text were among the seven drafters.
  5. When discussing the revision of Law 31/86 of 29 August 1986, there were many opinions on the path to follow including simply amending the law or approving a completely new document. Eventually, the latter option prevailed and the decision was taken to base the new text on the UNCITRAL Model Law. One of the purposes of changing the law was to make Portugal a more interesting seat for international arbitration, and that would be more easily achieved with a law following an internationally accepted standard.
  6. See Decree-Law 10/2011 of 20 January, as amended by Laws 64-B/2011 of 30 December, 20/2012 of 14 May and 66-B/2012 of 31 December.
  7. Law 62/2011 of 12 December.
  8. An English version is available at www.centrodearbitragem.pt/images/pdfs/Legislacao_e_Regulamentos/Regulamento_de_Arbitragem/Rules_of_Arbitration_2014.pdf.
  9. An English version is available at http://www.centrodearbitragem.pt/images/pdfs/Legislacao_e_Regulamentos/Fast%20Track%20Arbitration%20Rules%20english.pdf.
  10. Decision of the Appeal Court of Lisbon of 24.03.2015, case no. 1361/14.0YRLSB.L1-1; Decision of the Appeal Court of Oporto of 03.06.2014, case no. 583/12.2TVPRT.P1; all available at www.dgsi.pt.
  11. Decisions of the Appeal Court of Lisbon of 20.06.2017, case no. 5365/15.7T8LSB-D.L1-7, of 06.04.2017, Case no. 461/14.0TJLSB.L1-2, of 12.10.2016, Case no. 2130/14.2T8CSC.L1-4, of 29.09.2015, case no. 827/15.9YRLSB-1 and of 24.03.2015, case no. 1361/14.0YRLSB.L1-1; Decision of the Appeal Court of Oporto of 03.06.2014, case no. 583/12.2TVPRT.P1; Decision of the Appeal court of Évora of 08.09.2016, Case no. 204/14.9T2GDL.E1; all available at www.dgsi.pt.
  12. Decisions of the Supreme Court of Justice of 21.06.2016, case no.301/14.0TVLSB.L1.S1, of 12.05.2016, case no. 710/14.5TVLSB-A.L1.S1 and of 09.07.2015, case no. 1770/13.1TVLSB.L1.S1; of the appeal court of Lisbon of 13.09.2016, Case no. 581/16.7YRLSB.-1, 07.07.2016, case no. 508/14.0TBLNH-A.L1-2; all available at www.dgsi.pt.
  13. Decision of the Supreme Court of 27.04.2017, Case no. 93/16.9YRCBR.S1, Decisions of the Appeal Court of Lisbon of 14.04.2016, case no. 2455/13.4YYLSB-A.L1-2 and of 15.03.2016, case no. 871/15.6YRLSB-7; all available at www.dgsi.pt.
  14. As examples, see Decision of 30.05.2017, Case no. 39/16.4YRLSB-1, of 14.07.2016, case no. 660/16.0YRLSB-2; Decision of 12.02.2015, case no. 1551/14.5YRLSB-8; Decision of 15.01.2015, case no. 1362/14.8YRLSB.L1-8; Decision of 04.12.2014, case no. 1181_14.1YRLSB.L1-6; Decision of 01.07.2014, case no. 200/14.6YRLSB-7; Decision of 29.04.2014, case no. 1337/13.4YRLSB-7; Decision of 13.02.2014, case no. 1053/13.7YRLSB-2; Decision of 13.02.2014, case no. 1068/13.5YRLSB-6; Decision of 06.02.2014, case no. 866/13.4YRLSB-2; Decision of 03.10.2013, case no. 747/13.1YRLSB.L1-8; Decision of 10.09.2013, case no. 297/13.6YRLSB-7; Decision of 11.06.2013, case no. 955/12.2YRLSB-7; Decision of 02.05.2013, case no. 157/13OYRLSB; Decision of 11.07.2013, case no. 537/13.1YRLSB; all of the Appeal Court of Lisbon and all except the last two available at www.dgsi.pt.
  15. See, for example, Decision of the Appeal Court of Lisbon of 22.09.2015, case no. 1212/14.5T8LSB.L1-7, available at www.dgsi.pt.
  16. See, for example, Decision of 19.03.2017, case no. 1052/14.1TBBCL.P1.S1, and of 22.09.2016, case no. 660/15.8YRLSB.L1.S1, both from the Supreme Court and available at www.dgsi.pt.
  17. Decision of 28.05.2015, case no. 2040/13.0TVLSB.L1.S1; Decision of 02.06.2015, case no. 1279/14.6TVLSB.S1; both of the Supreme Court. Decision of the Court of Appeal of Lisbon of 04.11.2014, case no. 194466/12.2YIPRT.L1-7; all available at www.dgsi.pt.
  18. Decision of the Court of Appeal of Lisbon of 24.03.2015, case no. 7666/13.0TBOER.L1-1; Decision of the Court of Appeal of Oporto of 10.02.2015, case no. 3795/13.8TBMTS.P1.; all available at www.dgsi.pt.
  19. The LAV accepts, with almost absolute flexibility, the rules of national and international centres, and therefore many of the articles of the LAV have only subsidiary application in the case of institutional arbitration.