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Litigation

Last verified on Thursday 10th May 2018

Portugal

Miguel Esperança Pina and Frederico Bettencourt Ferreira

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
    1. In Portugal, civil disputes are addressed in first instance at the district courts. These courts are organised in chambers and some of them include specialised chambers for commercial and civil matters. The judgments of the district courts may be appealed to the Courts of Appeal, whose area of competence is defined by reference to the district courts. Finally, the Supreme Court of Justice may review the decisions of the Courts of Appeal in matters of law.

      Further to the constitutional doctrine of the separation of powers, Portuguese courts are completely independent from the other branches of power (ie, the executive and the legislative powers). In Portugal, the Superior Council of Magistrates, as the senior body of the structure and discipline of the Portuguese judges, appoints the judges and assigns them to their respective courts.

      Judges are bound only by the Constitution and the Law and are not subject to orders or instructions, except with regards to the duties of lower instance courts to comply with decisions issued in appeal proceedings by higher instance courts. In practical terms, the lower courts tend to follow the reasoning and decisions adopted by the higher courts and are often influenced by prior established jurisprudence on a particular matter of law.    

      With the exception of some criminal matters, juries are not allowed. Therefore, on civil and commercial matters cases are always judged by professional judges.

  2. 2.The legal profession
    Describe the general organisation of the legal profession.
    1. Similarly to most civil law jurisdictions, the process of admission as a lawyer is the following: obtaining a law degree at any of the accredited universities in Portugal; and an 18-month training programme in line with the requirements set forth by the Portuguese Bar Association, which shall conclude with a final and comprehensive written exam on a state-wide basis and an individual oral exam before a panel of examiners.

      Portuguese law does not provide a distinction between barristers and solicitors. Any Portuguese lawyer is entitled to appear before a court of any hierarchy. Except for lawyers from other EU member states, which are allowed to practise in Portugal with certain restrictions, lawyers from other countries are not, in general, allowed to practise in Portugal. Non-EU foreigners trained in Portugal are allowed to join the Portuguese Bar, provided that their country offers the same possibility to Portuguese citizens.

  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
    1. Civil litigation is a structuring element of the Portuguese legal system and represents the primary venue of dispute resolution within this jurisdiction.

      The Civil Procedure Code and the court system have undergone recent significant reforms, but overall the system is still perceived as lacking in efficiency.

      The Portuguese jurisdiction may be regarded as relatively litigious. Nevertheless, it is worth highlighting that in the past few years there has been an increase in the use of alternative means of dispute resolution. 

    Jurisdiction

  4. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
    1. Jurisdiction is determined either in light of the EU Regulation 1215/2012 (Brussels Regulation) or, if the latter is not applicable, in accordance with the Portuguese Civil Procedure Code. Portuguese courts have jurisdiction in light of the Civil Procedure Code in the following cases: (i) when the proceedings may be brought before a Portuguese court according to the rules of territorial jurisdiction set forth in Portuguese law; (ii) when the fact that is the cause of action or any of the facts included therein has occurred in Portuguese territory; or (iii) when the right invoked cannot become effective except by means of an action brought in Portuguese territory or if there is considerable difficulty for the plaintiff to bring the action abroad, provided it exists a substantial nexus, either personal or in rem, between the subject matter of the dispute and the Portuguese legal system.

      Both EU law and Portuguese law entitle the parties to agree on a specific forum to discipline their civil and commercial matters. However, the Portuguese Civil Procedure Code determines that Portuguese courts have exclusive jurisdiction regarding certain disputes such as, inter alia, enforcement of decisions over real estate located in Portugal or insolvency of entities with a head office in Portugal. 

  5. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
    1. Portuguese courts do not commonly attract disputes that have nexus with other jurisdictions. However, there is a relevant number of arbitration proceedings with its seat in Portugal that have nexus with other Portuguese-speaking countries.

  6. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
    1. The procedure is different whether the dispute is pending before the courts of another EU member state or before the courts of a non-EU country.

      In the first case, the Brussels Regulation sets forth that when disputes with the same cause of action and between the same parties are brought before courts of different member states, any court which is not the court first seized shall of its own motion stay the proceedings until the competence of the court first seized is established. In case the competence of the court first seized is established, the other court must not accept jurisdiction.

      In the second case, the Brussels Regulation provides that when an action is pending before a court of a third country in the moment where a court of an EU member state is seized in an action with the same cause of action and between the same parties, the court of the member state may stay the proceedings if: (i) it is foreseeable that the third country’s court takes a decision capable of being recognised and, as the case may be, enforced in the relevant member state; and (ii) the court of the member state is convinced that the stay of proceedings is required for a proper administration of justice.

      However, the court of the member state may continue the proceedings at any time if:

      • the proceedings in the court of the third state are themselves stayed or discontinued;
      • it appears to the court of the member state that the proceedings in the court of the third state are unlikely to be concluded within a reasonable time; or
      • the continuation of the proceedings is required for the proper administration of justice

      Lastly, the Portuguese court shall dismiss the proceedings if the proceedings in the court of the third state are concluded and have resulted in a judgment capable of recognition and, where applicable, of enforcement in the Portuguese jurisdiction.

  7. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

    1. Under Portuguese law, the state court before which a proceeding comprised within the scope of an arbitration agreement is brought shall, at the request of the defendant, dismiss the proceedings, unless it finds that the arbitration agreement is clearly null and void, is or became inoperative or is incapable of being performed. Arbitral proceedings may be commenced or continued, and an award may be made, while the issue is pending before the state court.

      However, it is not incompatible with an arbitration agreement for a party to request from a state court, before or during the arbitral proceedings, an interim measure and for a state court to grant such a measure. Nevertheless, and except as otherwise established, arbitral tribunals are also competent to grant interim measures and preliminary orders. 

  8. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
    1. Portuguese law acknowledges the Kompetenz-kompetenz principle and courts are only allowed to assert their jurisdiction before the arbitral tribunal issues a decision in exceptional cases where the inexistence, invalidity or unenforceability of the arbitration agreement in manifest. Awards can be challenged on limited grounds and appeals on the merits are, as a general rule, excluded. Lack of jurisdiction is one of the possible grounds for setting aside arbitral awards.

  9. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
    1. Portuguese law does not provide for anti-suit injunctions.

  10. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

    1. Although there is no binding legislative act concerning jurisdictional sovereign immunity, Portuguese Law acknowledges and recognises the general principle of customary public international law of sovereign immunity of foreign states. Nonetheless, this principle only applies as far as the actions carried out by sovereign states are comprised within their sovereign authority (acta iure imperii), which entails that a sovereign state may be sued in case said actions fall outside of its ius imperii prerogatives (acta iure gestionis).

      Furthermore, the limitations and extension of sovereign immunity are defined in accordance with the European Convention on State Immunity and its Additional Protocol and the United Nations Convention on Jurisdictional Immunities of States and Their Property. Although the latter is not yet in force, Portuguese courts do refer to it as an important element of interpretation and definition of the content of said customary rule of state immunity. 

    Procedure

  11. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
    1. Generally, the proceedings commence by a statement of claim filled by the plaintiff with the court of first instance, whereby it exposes the essential facts that constitute the cause of action and the legal grounds applicable to those facts. Subsequently, the court summons the defendants to present a detailed statement of defence within 30 days from summons, which may be extended in certain circumstances. The statement of defence shall contain the factual and legal grounds based on which the defendant opposes to the claim made by the plaintiff. After the pleadings, the court shall convene a preliminary hearing.

      Although it falls upon the parties the burden to allege all the main relevant facts of the dispute and to provide proof of the same, Portuguese courts are obliged to actively conduct the proceedings and to provide for their quick development. The court also has a duty to correct, at its own initiative, any lacking procedural requirements that may be cured. 

  12. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
    1. Under Portuguese Law, a notice pleading does not suffice for the purposes of filing a claim. The plaintiff must comply with several pleading requirements, especially the duty to identify and detail the essential facts that constitute the cause of action and the legal grounds based on which the action is brought. However, a failure to comply with these requirements does not usually lead to an immediate dismissal of the claim, but to an invitation for compliance made by the court.

      Moreover, in the statement of claim the plaintiff shall designate the court before which the proceedings are brought and indicate the domicile of its attorney, the value of the claim, the type of action, the list of witnesses and request other means of proof.

  13. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
    1. The pleading standard for defence is subject, on substantial terms, to the same requirements set forth for the statement of claim. Consequently, the statement of defence shall individualise the proceedings, expose the factual and legal reasons whereby the defendant opposes to the claim made by the plaintiff and include the essential facts based on which the objections are made. 

  14. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
    1. The parties are obliged to present all the facts and legal evaluation of their cases together with their pleadings, ie, the statement of claim and the statement of defence (and, if there is a counter-claim, the reply to that counter-claim). However, the parties may generally present new facts if these occur after the previous pleadings or were unknown at the time those pleading were submitted. In addition, the plaintiff may, at any time, decrease the claim and may increase it until the term of the discussion in the first instance, as long as the extension is the development or the consequence of the primitive claim.

      Furthermore, the parties may agree, at any time, any amendments or extensions to the claim or cause of action of the proceedings, in first or second instance, unless the amendment or extension inconveniently disrupts the evidentiary activity, the discussion and the judgment of the pleading. In the absence of agreement, the cause of action (and the factual assertions comprised thereto) may only be amended or extended because of confession made by the defendant and accepted by the plaintiff.

  15. 15.Publicity
    To what degree are civil proceedings made public?
    1. The rule is that civil proceedings are public, except where otherwise provided by the law. Publicity of the process entails the right of exam and consultation of the elements of the proceedings at the secretariat and of delivery of copies of any parts thereof, by any person capable of exercising the judicial mandate or with a relevant interest.

      However, access to the elements of the proceedings is limited in the cases where the disclosure of its content may harm the dignity or privacy of the people involved or public morality, or may jeopardise the effectiveness of the decision to be rendered. In general, TV cameras, taking of pictures or even the use of recording devices are not allowed. 

    Pretrial settlement and ADR

  16. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
    1. After the exchange of initial pleadings – statement of claim and statement of defence – the court may invite the parties to correct the deficiencies or imprecisions in their factual allegations, setting a deadline for the presentation of the reviewed pleading in which the initial deficiency is duly corrected. Moreover, in the preliminary hearing held afterwards, the court may fully or partly decide the case if state of the proceedings allows the full or partial assessment of the factual allegations and legal substantiation made by the parties without the need for any further proof.

      Settlement conferences between the parties are not mandatory but may take place, at any time, during the course of the proceedings, as long as the parties jointly request so or the court deems appropriate. However, the parties should not be convened exclusively for such purpose more than once. Settlement conferences are common in the above-mentioned preliminary hearings. In the case of failure to settle, in either full or in part, the concrete solutions suggested by the court and the reasons for continuing the dispute shall be included in the minutes of the proceedings.

  17. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
    1. There is no strictly mandatory mediation or any other type of ADR before or during the litigation. However, at any time during the course of the proceedings, the court may determine that the proceedings should be stayed and referred to mediation, unless one of the parties expressly opposes that referral.

      The parties are allowed to stay the proceedings (for no more than three months) and refer the case to mediation. 

    Interim relief

  18. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
    1. The Portuguese Civil Procedure Code sets forth two different types of interim reliefs: specified and non-specified. Specified interim reliefs (eg, seizure, provisional maintenance, suspension of corporate resolutions) are those aimed at protecting a risk of injury specially foreseen and regulated by the law, while the non-specified interim reliefs are ordered whenever someone establishes a founded fear that another may cause serious injury and difficult to repair to the former’s right. 

  19. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
    1. In the case of non-specified interim reliefs, the petitioner shall provide summary evidence of the endangered right and justify the fear of injury. As for the specified interim reliefs, the petitioner shall summarily demonstrate the existence of the specific risk of injury identified by the law.

      If the interim relief is considered unjustified or expires due to a fact imputable to the petitioner, the latter is liable for the damages caused to the respondent.  

    Decisions

  20. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
    1. A final and binding judgment issued by the court is the standard decision in civil matters. Also, when a party brings multiple claims in the same proceedings, the court may render a partial judgment in case only one or more of them are founded. Besides decisions directly affecting the merits of the case, the court issues procedural decisions aimed at managing the case. 

  21. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
    1. The court may render a decision soon after receiving the statement of claim made by the plaintiff. In this case, if the court finds the subject of the matter manifestly unfounded or if any insuperable dilatory objection occurs, the pleading of the plaintiff is dismissed. Alternatively, the court may render a decision soon after the exchange of written briefs in which it immediately assesses the merits of the case. Finally, the court may render a decision only after extensive taking of evidence (ie, at the end of the proceedings). In all cases, the court, at its sole discretion, decides whether and when the merits of the case should be addressed, provided all legal requirements for the issuance of a binding decision are met. 

  22. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
    1. The common situation pertains to the cases where the plaintiff presents a claim and the defendant, albeit regularly notified for such purpose, fails to contest said claim. Hence, the facts alleged by the plaintiff are considered confessed (with certain exceptions) and the court applies the law to those facts. 

  23. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
    1. It is difficult to predict and assess the exact duration of this type of proceedings in the first instance. Depending on its complexity, the merits of the case, the conduct of the parties, the attitude of the court and the workload, the proceedings may take approximately from one year and a half to significantly longer.  

    Parties

  24. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
    1. In general, pending a dispute between two or more parties, one may voluntarily intervene as a main party in the dispute, or be called by one of the original parties, as long as, in relation to the merits of the case, it has an interest equal to the one of the plaintiff or the defendant. The intervening party may submit its own pleading (if the proceeding is still at pleadings’ stage) or adhere to the pleading presented by the party to whom it associates with. 

      Failure from the plaintiff to join a party that, according to the law, the applicable contract or the nature of the dispute, should intervene in the dispute, may lead the case to be dismissed on formal grounds. This type of decision forms res judicata only within the boundaries of that proceeding. Therefore, it does not preclude a litigant from later bringing the same or similar claims against that party in a different proceeding, since the first court did not issue a decision of the merits of the claim.

      If a third party has some connection with the dispute but does not have an interest equivalent to the main parties, it may still be possible for it to intervene (voluntarily or after being called by one of the parties), but with a more limited role.

    Evidence

  25. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
    1. Both the plaintiff and the defendant shall set out in their respective pleadings the evidential elements upon which their factual assertions rely on.

      Courts have the prerogative (which they often do not use) to perform or order at their own initiative the necessary measures to ascertain the truth regarding the merits of the case, but the main evidentiary activity falls upon the parties.

  26. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
    1. In general, a party is not obliged to provide all the available evidence, including evidence that is harmful to it in the proceedings.

      There is no American-style document discovery procedure in place.

      However, the Civil Procedure Code sets out a specific document disclosure procedure whereby the court, at its own initiative or at the request of any of the parties, may order the provision of specific information, technical reports, plants, photography, drawings, objects or other documents necessary to ascertain the truth regarding the merits of the case. Failure to produce specific documents ordered by the court entails the imposition of a fine and may lead to adverse inferences, such as presuming that the allegations made the requesting other party are true. 

      Furthermore, if one of the parties intentionally makes it impossible for the other to establish a certain fact – for instance by destroying a certain key piece of evidence – the law provides for an inversion of the burden of proof.

  27. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

    1. Any person with physical and mental fitness to testify on the subject matter of the dispute may serve as witness. 

      The parties need to provide the list of their witnesses in their respective pleadings. Nevertheless, when during the course of the proceedings, there are grounds for considering that a certain person not offered as witness is aware of important facts for a good decision of the dispute, the court may order that said person is notified to testify. In general, the parties may only present up to 10 witnesses each, in the case of a main proceeding, and five witnesses each, in case of interim measures. Written testimony is only allowed in special circumstances.

      A witness is obliged to tell the truth during the full course of its testimony, under penalty of perjury. 

      According to the Portuguese Bar Association Statute, lawyers cannot contact, directly or indirectly, witnesses or other procedural actors with the purpose of instructing, influencing or otherwise altering their testimony, thereby impairing the discovery of the truth.

  28. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
    1. Experts can be appointed by the parties and by the court at its own initiative. In both cases, the appointment shall contain the subject matter of the expertise. The parties are heard regarding the appointment of the experts, and can suggest who should perform the inquiring. If the parties agree on the expert to be designated, the court shall appoint him or her, save if there are grounds to justifiably question his competence and reputation; in the absence of said agreement, the court appoints the expert. At the parties’ request or by determination of the court, it is possible to appoint up to three experts.

      The result of the examination carried out by the expert is included in an expert report, in which the expert issues a founded and neutral opinion on the subject matter of the expertise.

  29. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
    1. The parties or legal representatives of a legal person cannot be considered witnesses, since only third parties to the dispute qualify as such.

      They can, however, testify at their request (regarding any facts in which they personally intervened or of which have direct knowledge) or at the request of the opposing party (with the aim of obtaining a confession, essentially), pursuant to specific rules.

      The court assesses at its own discretion the parties’ testimonies (unless they entail a confession of the facts).

      There is a legal duty to cooperate with the court. Thus, if a party refuses to do so, the court may draw negative inferences (in addition to other sanctions).

  30. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
    1. The language of the proceedings is Portuguese. When documents written in foreign language are offered, the court, at its own initiative or at the request of any of the parties, orders that a translation be submitted, if necessary.

      The party who invokes foreign law has the burden to provide evidence of its existence and content, but the court shall attempt, at its own initiative, to ascertain said content. The court also has to attempt to determine the content of the foreign law if it is necessary to apply it and the parties failed to invoke it, or if there is no disagreement between the parties regarding its content. If it is impossible to determine the content of the foreign law, the court shall decide the case according to Portuguese law.

  31. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
    1. As a rule, in case of doubt, the court shall decide that a certain contentious fact is proven or not against the party upon which falls the burden of proof. The law does not establish explicit and specific standards of proof, but it is understood that a reasonable (not absolute) certainty is required.

      As to specific means of proof, the general rule is that the court is free to evaluate them. However, some means of proof enjoy a special evidential value (eg, certain documentary evidence and confessions).

    Appeals

  32. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
    1. In the Portuguese jurisdiction, there are ordinary and extraordinary appeals, the difference being that the former are filed before the decision becomes res judicata and the latter after that.

      Ordinary appeals are typically entry level-based. In general, claims brought before the court of first instance (District Court) may only be appealed to the Court of Appeal if their value is higher than €5,000 and if the decision is unfavourable to the appellant in more than half of said amount. As for the decisions of the Court of Appeal, an appeal to the Supreme Court of Justice is only admissible if the value of the claim exceeds €30,000 and if the decision is unfavourable in more than €15,000.

      There are two types of extraordinary appeals, the revision appeal and the appeal for the standardisation of jurisprudence. The revision appeal may be filed in exceptional cases in which it can be shown that the first decision was, for instance, based on forged evidence. The appeal for the standardisation of jurisprudence is employed in order to attain a homogenous interpretation and application of Portuguese law.

  33. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?

    1. The Court of Appeal is entitled to review both issues of fact and law. The subject of the appeal is defined by the conclusions drawn by the appellant at the end of its appeal statement. The Supreme Court of Justice may only review matters of law.

  34. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
    1. The duration of the appellate proceedings is dependent upon a different number of factors, such as the complexity and extension of its subject matter, the competent court and its workload and type of decision. Nevertheless, it is normal for cases to be decided in less than a year.

    Special proceedings

  35. 35.Class actions
    Are class actions available?
    1. Both the Constitution and the Law allow citizens and associations or foundations to submit class actions with the aim of defending or punishing infringements of public health, consumers’ rights, quality of life, environment and cultural heritage and public domain. However, this right is rarely used.

      With a different scope, the Code of Civil Procedure allows for multiple plaintiffs to sue one or more defendants collectively in certain circumstances (eg, when the decision on the claims requires the analysis of the same facts or the interpretation of the same rules of law or of identical contractual clauses).

  36. 36.Derivative actions
    Are derivative actions available?
    1. The Portuguese Companies Code sets out that, regardless of the indemnity claim pertaining to the individual damages suffered by each shareholder, one or more shareholders holding, at least, 5 per cent of the share capital, or 2 per cent in the case of publicly traded companies, may bring a corporate proceeding (liability claim) against its managers or directors for the purposes of compensation of the damages suffered by the company, if the company choses not to start that proceeding or fails to do it within six months from the date of a general meeting in which the shareholders vote for it.

      For the purposes of bringing this claim, the company’s shareholders may appoint special representatives.

      Similarly, the company’s directors or managers are liable towards the company’s creditors if the company’s assets become insufficient for the payment of debts by virtue of the formers’ malpractice and non-compliance with legal requirements and statutory duties aimed at the protection of creditors. If the company and the shareholders fail to do it, the creditors are allowed to exercise the company’s indemnity rights against its director or managers.

  37. 37.Fast-track proceedings
    Are fast-track proceedings available?
    1. Yes. In contractual disputes aimed at the payment of a certain amount (not higher than €15,000), instead of filling a normal claim under the ordinary civil proceeding, the claimant may, instead, enter an application for a simplified proceeding or a payment order. These proceedings are expedited ways to obtain an enforceable title within a short period. In general, failure by the defendant to challenge the claim entails the automatic enforceability of the claim.

  38. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
    1. According to the relevant provisions of the Portuguese Law, the proceedings may only be conducted in Portuguese. Please see question 30.

    Effects of judgement and enforcement

  39. 39.Effects of a judgment
    What legal effects does a judgment have?
    1. In principle, a judgment is solely binding for the litigating parties. This principle rests on the idea that only the parties that intervened, or had the possibility to intervene in the dispute, are able to defend their interests therein. However, there are some exceptional cases where the judgment has a binding effect on third persons. Such is the case of the proceedings concerning to the status of a person, but only if specific requirements are met.

      As for the binding effects of a judgment in a later proceeding, the general principle is that only the decision as such is covered by res judicata. However, it is commonly understood that the issues that that the court had to solve in order to reach said decision are also covered by res judicata. 

  40. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
    1. A final and binding judgment constitutes an enforcement order and therefore the standard enforcement procedure is applicable. The debtor is not notified of the commencement of an enforcement proceeding by the creditor; notification only occurs after seizure of assets. 

  41. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
    1. The judgments rendered by the courts of another EU member state are enforceable in Portugal in accordance with article 36 of the Brussels Regulation (ie, are automatically enforceable without any other further formalities being required).

      As for the decisions rendered by courts of non-EU countries, the Portuguese Civil Procedure Code sets out that their enforceability is dependent upon prior review and confirmation by the competent Portuguese court. This assessment is carried out in accordance with the specific procedure set forth in articles 978–985 of the same Code.

    Costs

  42. 42.Costs
    Will the successful party’s costs be borne by the opponent?
    1. In Portugal, the rule is that the losing party shall bear the court costs incurred by the successful party during the course of the proceedings. In general, with regard to other expenses, such as lawyer fees, only a small amount is recoverable.

      However, if a party is deemed to have litigated in bad faith, it may be ordered to compensate the other party for all its expenses, including lawyer fees.

  43. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
    1. Further to the provisions of Law No. 34/2004 (regarding access to the Law and to the Judicial System), the Portuguese State shall provide legal aid to EU and Portuguese citizens who demonstrate they are in a situation of economic insufficiency. Legal aid may include, for instance, a waiver of court costs and the appointment of a public defender. 

  44. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
    1. The Portuguese Bar Association Statute expressly forbids arrangements pursuant to which the lawyers’ fees depend exclusively on the outcome of a specific dispute. However, it is permissible to establish arrangements whereby fixed or variable fees are complemented with a success fee.

  45. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
    1. Third-party funding is not regulated in Portugal and is also not regularly used in this jurisdiction. We are not aware of any decisions regarding its admissibility.

  46. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?
    1. Lawyers do not have to follow fee scales and there are no fixed quantitative upper or lower limits for fees.  

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Questions

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
  2. 2.The legal profession
    Describe the general organisation of the legal profession.
  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
  4. Jurisdiction

  5. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
  6. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
  7. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
  8. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?


  9. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
  10. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
  11. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?


  12. Procedure

  13. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
  14. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
  15. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
  16. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
  17. 15.Publicity
    To what degree are civil proceedings made public?
  18. Pretrial settlement and ADR

  19. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
  20. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
  21. Interim relief

  22. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
  23. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
  24. Decisions

  25. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
  26. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
  27. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
  28. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
  29. Parties

  30. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
  31. Evidence

  32. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
  33. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
  34. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?


  35. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
  36. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
  37. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
  38. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
  39. Appeals

  40. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
  41. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?


  42. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
  43. Special proceedings

  44. 35.Class actions
    Are class actions available?
  45. 36.Derivative actions
    Are derivative actions available?
  46. 37.Fast-track proceedings
    Are fast-track proceedings available?
  47. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
  48. Effects of judgement and enforcement

  49. 39.Effects of a judgment
    What legal effects does a judgment have?
  50. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
  51. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
  52. Costs

  53. 42.Costs
    Will the successful party’s costs be borne by the opponent?
  54. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
  55. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
  56. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
  57. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?