Law no. 63/2011, of December 14th, also known as Law on Voluntary Arbitration (hereinafter “LVA”)¹.

LVA is applicable to all arbitrations that take place in Portuguese territory, as well as to the recognition and enforcement in Portugal of arbitration awards issued abroad².

Special reference should also be made to the Legal Regime for Tax Arbitration (RJAT), approved by Decree-Law no. 10/2011, of January 20th³.

Footnotes:

¹ Available here: 0527605289.pdf (diariodarepublica.pt)

² Art. 61.

³ Consolidação Decreto-Lei n.º 10/2011 – Diário da República n.º 14/2011, Série I de 2011-01-20 (caad.org.pt)

Yes. Portugal signed the New York Convention on the Recognition and Enforcement of Arbitral Sentences of 1958 on October 18th, 1994⁴, without reservations.

The Convention entered into force in Portugal on January 16th, 1995.

Footnotes:

⁴ Approved for ratification by the Resolution of the Portuguese Parliament no. 37/94; ratified by the Presidential Decree no. 52/94.

Portugal is a party to several arbitration-related treaties and conventions. Some of the key ones include:

• United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).
• International Centre for Settlement of Investment Disputes (ICSID) Convention.
• Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).
• The Energy Charter Treaty, which includes provisions on investment arbitration.
• Convention on the Execution of Foreign Arbitral Awards (Geneva Convention).
• Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Lisbon Convention).

Yes, LVA was drafted pursuant to UNCITRAL Model Law 1985 and 2006, with influences from other, more recent arbitration laws.

No relevant or significant differences between the two can be found.

No.

Portugal’s first arbitration specific law was Law no. 31/86, of August 29th. Such law was revoked by LVA which introduced a more modern arbitration regime, following emerging international trends already adopted by other European jurisdictions.

There are not impending plans to reform or revoke LVA.

Portugal currently has more than 30 arbitral institutions⁵, from different locations around the country, providing dispute resolution solutions in a variety of areas – from consumer disputes to construction, insurance, patents and securities.

The main arbitral institutions are the Arbitration Centre of the Portuguese Chamber of Commerce and Industry and the Portuguese Arbitration Association.

The Arbitration Centre of the Portuguese Chamber of Commerce and Industry⁶ has taken a particularly central role in conducting domestic arbitrations and in developing the law and culture of arbitration in the country. In this context, its rules of arbitration take on great importance and should be considered central elements for all arbitration practitioners and academics in Portugal.

Its aim is:

(a) To promote and disseminate the settlement of disputes using arbitration or alternative dispute resolution methods by organising and sponsoring dissemination actions, studying and deepening matters relating to disputes of an economic nature;

(b) To administer institutional arbitration proceedings and alternative dispute resolution proceedings in matters of a commercial nature, whether public or private, domestic or international;

(c) To provide services related to the administration of arbitration proceedings.

Its rules of arbitrations were last amended on April 2021⁷.

Created in 2006, the Portuguese Arbitration Association (APA) is the institutional expression of the Portuguese Arbitral Community, comprising about 251 members professionally and academically dedicated to arbitration, which the Association has as its mission to study, disseminate and promote.

In November 2020, APA published two sets of rules aiming to guide the arbitration practice in Portugal: the Code of Ethics and the Code of Best Practices for Arbitration Experts⁸.

The new Code of Ethics, which replaces and clarifies the former Code of Ethics for Arbitrators approved in 2010 and revised in 2014, is now also applicable to the parties’ representatives and other participants in arbitration proceedings and is binding for all APA members (see article 1). The Code of Ethics does not aim to be an exhaustive set of rules, but rather a reference. It reflects best international practices, https://globalarbitrationreview.com/review/the-european-arbitration-review/2022/article/portugal  with the main purpose of preserving the integrity of arbitration proceedings.

The Code of Best Practices for Arbitration Experts aims to ensure the independence and objectivity of expert reports, with a view to strengthening their probative value and ensuring the integrity of arbitral proceedings. An expert’s position in an arbitral proceeding may vary according to the way they were appointed (by the parties, by the court or under any other hybrid model). They do not assume the role of an arbitrator, but of an independent party who is called to assess a certain matter from a technical perspective. Therefore, what is required from the experts is that they be independent and objective while assessing a specific matter in their field of expertise. Once again, this Code of Best Practices does not aim to be exhaustive, but rather to set references of basic principles that should be followed by the experts, parties’ representatives and arbitral tribunals whenever expert evidence is being produced in arbitral proceedings.

To the best of our knowledge, no amendments to the rules mentioned above are being considered for now.

Footnotes:

⁵ See the full list of Portuguese Arbitration Centres at: https://dgpj.justica.gov.pt/Resolucao-de-Litigios/Arbitragem/Centros-de-Arbitragem-autorizados.

⁶ Available here: Centro de Arbitragem (ccip.pt)

⁷ See English translations of the 2014 Rules of Arbitration and the 2016 Fast Track Arbitration Rules at  https://www.centrodearbitragem.pt/index.php?option=com_content&view=article&id=9&Itemid=110&lang=en. The Portuguese versions of the new rules published in 2021 are available at https://www.centrodearbitragem.pt/index.php?option=com_content&view=article&id=9&Itemid=110&lang=pt. The Dispute Board Rules are available at https://www.centrodearbitragem.pt/index.php?option=com_content&view=article&id=332&Itemid=201&lang=pt and Mediation Rules are available at https://www.centrodearbitragem.pt/index.php?option=com_content&view= article&id=192&Itemid=195&lang=pt.

⁸ See Portuguese, English and Spanish versions at https://www.arbitragem.pt/xms/files/PROJETOS_APA/ebook_codigos-apa_21jan2021.pdf.

Yes.

The Lisbon Arbitration Centre on Consumer Conflicts (CACCL)⁹ which has an Arbitration Court dedicated only to the resolution of disputes between consumers and companies of the adherent municipalities (Lisbon, Sesimbra, Vila Franca de Xira, Loures and Cascais) swiftly and reliably trough alternative means such as mediation, conciliation and arbitration.

Also the Administrative Arbitration Centre (CAAD)¹⁰ which is an institutionalized arbitration center aimed to resolve public law disputes in the administrative and tax areas.

In the administrative area, CAAD is competent to set up arbitral tribunals to hear disputes concerning any legal-administrative matter, involving pre-attached entities, such as the Ministries of Justice, Culture, Education and various higher education institutions, or entities that are not pre-attached to CAAD, by granting an arbitration commitment.

In the tax area, the Legal Regime for Tax Arbitration (RJAT), approved by the Decree-Law no. 10/2011, of January 20, provides for the possibility of resolving disputes involving the assessment of the legality of tax acts by arbitration.

Footnotes:

⁹ CACCL (centroarbitragemlisboa.pt)

¹⁰ CAAD

LVA defines the arbitration agreement as the means by which a dispute may be submitted to an arbitral tribunal (provided that the dispute does not concern untransferable rightsjavascript:; or illegal transactions).

This broad definition is then divided into two different types of arbitration agreements, by reference to the purpose of the arbitration agreement. Hence, it is possible to have arbitration contracts which submit a specific and existing dispute to arbitration, and arbitration clauses which specify that certain future and potential types of disputes may be resolved by arbitration.

This dual classification is relevant in defining the minimum content of the arbitration agreement: the arbitration agreement must precisely determine the object of the dispute submitted to arbitration and must be sufficiently certain regarding those elements of the contract in relation to which a dispute can be settled by the arbitral tribunal.

It is also possible for the parties to agree on the submission to arbitration of other issues that may require the intervention of an impartial decision maker – for example, issues concerning the need to clarify, supplement and vary long-term contracts to adapt to new circumstances.

The arbitration agreement must be in writing. This formal requirement is fulfilled whenever the agreement to arbitrate is included in a written document signed by both parties, or in an exchange of letters, telexes, telegrams or other means of communication of which there is a written record.

This requirement is also satisfied if a contract refers to a separate document that contains an arbitration clause, provided that the reference is such as to incorporate that clause as part of the contract.

The LVA also considers this requirement to be fulfilled if there is an exchange of submissions in arbitral proceedings in which one of the parties alleges the existence of the arbitration agreement and this is not denied by the other party.

An arbitration agreement which does not comply with the formalities required by law will be null and void.

Yes.

The null and void decision or award of a contract does not necessarily result in the invalidity of an arbitration clause contained within it.

The invalidity of a part of, or of a certain clause in a contract does not imply the invalidity of the whole of the contract.

The only exception is where the contract would not have existed without the invalid part or clause.

Otherwise a dispute regarding the validity of the contract may be submitted to arbitration under the arbitration agreement contained within that contract.

Yes. Article 51 (1) provides that In an international arbitration, the arbitration agreement is valid as to its substance and the dispute it governs may be submitted to arbitration if the requirements set out either by the law chosen by the parties to govern the arbitration agreement, by the law applicable to the subject-matter of the dispute or by Portuguese law are met.

Contrary to 1986 Law, LVA contains provisions regarding multi-party issues.

Only third parties bound by the arbitration agreement may be parties to the arbitral proceedings.

Third parties or non-signatories can only be bound by an arbitration agreement if they adhere to it.

We did not find any recent court decisions on these issues.

Yes. Disputes that concern untransferable javascript:; or illegal transactions.

No evolution has been registered in this regard in recent years.

We did not find any recent court decisions on these issues.

The arbitral tribunal will commonly apply Portuguese substantive law, or any other substantive law chosen by the parties in the arbitration agreement.

However, the parties may authorise the arbitral tribunal to reach a decision based on equitable terms, instead of binding its decision within the limits of any substantive law.

In the case of an international arbitration, and if the parties have not agreed on the applicable law, the arbitral tribunal shall apply the law which the International Treaties or the Portuguese Civil Code impose, notably observing the criteria related with which the purpose of the dispute is most closely connected.

Yes, there is a specific set of choice of law rules in Portugal, foreseen in Chapter III of Title I (articles 14º to 65º) of the Portuguese Civil Code.

No.

According to article 10 (1) of the LVA, the parties are free to appoint the arbitrator or arbitrators that shall form the arbitral tribunal in the arbitration agreement or in a later document signed by the parties, or to agree on a procedure for appointing them, namely by assigning the appointment of all or some of the arbitrators to a third party.

Yes.

There are some restrictions as to who may act as an arbitrator. An arbitrator must be a natural person, have full legal capacity and must be independent and impartial¹¹.

Other restrictions may also arise from the internal regulations of the arbitral institutions or other legal instruments.

For example, an arbitrator may be prevented from acting where there is incompatibility between his or her functions as an arbitrator and other legal obligations.

Footnotes:

¹¹ Art. 9 (1), (3) LVA.

Yes.

In an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator’s appointment, such arbitrator shall be appointed, upon request of any party, by the State Court.

Unless otherwise agreed, if a party is to appoint an arbitrator or arbitrators and fails to do so within 30 days of receipt of the other party’s request to do so, or if the arbitrators appointed by the parties fail to agree on the choice of the chairman within 30 days of the appointment of the last arbitrator to be appointed, the appointment of the remaining arbitrator or arbitrators shall be made, upon request of any party, by the competent State Court.

Unless otherwise agreed, the provisions of the preceding paragraph shall apply if the parties have assigned the appointment of all or some of the arbitrators to a third party and the appointment does not occur within 30 days of the request to do so.

In appointing an arbitrator, the competent State Court shall have due regard to any qualifications required of the arbitrator or arbitrators by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator; in case of international arbitration, while appointing a sole or third arbitrator, the Court shall furthermore take into account the advisability of appointing an arbitrator of a nationality other than those of the parties.¹²

Footnotes:

¹² Art. 10 (2), (4), (5) (6) LVA.

Yes, the appointment of an arbitrator can be challenged but only if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence, or if the arbitrator does not possess the qualifications agreed to by the parties.

However, a party may not challenge its own appointed arbitrator other than for reasons of which it becomes aware following the appointment. This restriction is also applicable when an arbitrator is appointed by the mutual agreement of the parties¹³.

The parties are free to agree on a procedure for challenging an arbitrator. Failing such agreement, a party that wishes to challenge an arbitrator should submit a written statement to the arbitral tribunal setting out the grounds for the challenge.

This request should be filed within 15 days from the date on which the challenging party became aware of the constitution of the arbitral tribunal or acquired knowledge of the grounds for the challenge.

If the challenged arbitrator resists the challenge and remains in office, the full arbitral tribunal – including the challenged arbitrator – will decide on the challenge. If the challenge is not successful, the challenging party may refer the matter to the court within 15 days of receiving notice of the decision of the arbitral tribunal. The decision of the court on the challenge will be final¹⁴.

Footnotes:

¹³ Art. 13 (3) LVA.

¹⁴ Art. 14 LVA.

The previous Law ruling on arbitration (Law no. 31/86, of August 29th) did not foresee any provisions concerning duties of arbitrators, including the duty of independence, impartiality and disclosure. It only stated that arbitrators must be individuals enjoying full legal capacity¹⁵.

With the entering into force of the LVA, an arbitrator has now a continuing duty of disclosure meaning that he or she must inform the parties (and the other arbitrators if that is the case) of any subsequent circumstances that arise or that have been brought to his or her attention after accepting the appointment that would constitute a justifiable reason to doubt his or her impartiality or independence.

Reference should also be made to the Code of Ethics published by APA in 2020 which, with regard to the arbitrator’s main duties, focuses on independence and impartiality (see article 6) – in line with the most well-known codes of ethics for international arbitrations. These rules also provide guidance on how the duty of disclosure must be exercised (see article 7), drawing attention to certain aspects that may produce conflicts of interest (eg, third-party funders or the law firm that the arbitrator may be a part of).

These rules also foresee the possibility of the arbitrators being assisted by a secretary, consultant or technical assistant, who will also be subject to the duty of disclosure, having to disclose all facts and circumstances that may raise any doubts regarding their independence or impartiality (see article 9, No. 1). This rule also applies to anyone in charge of administrative tasks throughout the arbitral proceedings (see article 9, No. 2).

Footnotes:

¹⁵ Art. 8 of Law no. 31/86, of August 29th

There are no provisions foreseeing a case of a truncated tribunal.

LVA stipulates conditions that impede such a situation from happening, notably trough the replacement of the arbitrators.

In fact, where, for any reason, the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed, according to the rules applicable to the appointment of the arbitrator being replaced, without prejudice to the parties agreeing that the replacement shall be made otherwise or waiving such replacement. Taking into consideration the stage of the arbitral proceedings, the arbitral tribunal shall determine whether any additional procedural matters need to be addressed or repeated¹⁶.

Footnotes:

¹⁶ Art.16 (1) LVA

No.

Arbitrators can be deemed liable in the same circumstances in which state judges can be held liable, i.e., for damages caused by their rulings if they acted intentionally or with gross negligence. In any case, an arbitrator can only be liable to the parties to the dispute¹⁷.

Arbitrators are also liable for damage caused to the parties by an unjustified delay in deciding a dispute that has been submitted to the arbitral tribunal. The direct accountability of the arbitrator to the parties incentivises a swift outcome to the arbitration, which complements the duty to decide the dispute within the legal or agreed timeframe¹⁸.

Footnotes:

¹⁷ Arts. 9 (4) (5) and 12 to 14 LVA

¹⁸ Art. 43 (4) LVA

Yes, in arts. 18(1), (8), (9) and (10) of the LVA.

The approach of local courts in which a party commences a litigation in apparent breach of an arbitration agreement has been, in the vast majorities of the situations, to order the termination of the Court Proceedings on the basis that the matter is not within their jurisdiction or, at least, to suspend the proceedings until the Arbitration Tribunal decides if it has the competence to judge the case.

Unless otherwise agreed by the parties or defined in the relevant institutional rules, if the claimant does not file its statement of claim within the time limits set out in the arbitration agreement or decided by the arbitral tribunal, the arbitral tribunal should terminate the arbitral proceedings¹⁹.

Conversely, if the respondent fails to submit its statement of defence within the designated time limit, the arbitral tribunal shall continue with the arbitral proceedings without viewing the respondent’s default as acceptance of the claimant’s allegations²⁰.

Moreover, if one of the parties fails to appear in the hearings or to submit evidence within the designated time limit, the arbitral tribunal must continue with the arbitral proceedings and make the award after taking into consideration the evidence presented to it²¹.

The arbitral tribunal may, in any case, consider that the default of one of the parties is justifiable and allow the defaulting party to file the defaulted plea or evidence requested²².

Local courts cannot compel participation.

Footnotes:

¹⁹ Art 33(2) and 35(1) LVA

²⁰ Art 35 (2) LVA

²¹ Art 35 (3) LVA

²² Art 35 (4) LVA

Yes, third parties can voluntarily join ongoing arbitral proceedings based on a certain arbitration agreement providing that (i) they are bound by the said arbitration agreement whether from the date of such agreement, whether they subsequently adhered to it and (ii) all parties to the arbitration agreement consent on the adhesion.

Even if all parties agree to the intervention, the tribunal is not bound by the this agreement. The joinder must always be decided by the arbitral tribunal, after giving the initial parties to the arbitration and the third party in question the opportunity to state their views and the arbitral tribunal shall only allow joinder if (i) this does not unduly disrupt the normal course of the arbitral proceedings and (ii) if there are relevant reasons that justify the joinder, such as, in particular, those situations in which, provided that the request is not clearly unviable:

a) The third party has an interest in relation to the subject-matter of the dispute equal to that of the claimant or respondent, that initially would have permitted the voluntary joinder or imposed the compulsory joinder between one of the parties to the arbitration and the third party, or

b) The third party wishes to present a claim against the respondent with the same object as the claimant, but incompatible with the latter’s claim; or

c) The respondent against whom a credit is invoked that may, prima facie, be characterized as a joint and several credit, wishes that the other possible joint and several creditors are bound by the final award; or

d) The respondent wishes that third parties against whom the respondent may have a right of subrogation in case the claimant’s pleading is completely or partially granted to be joined.

Joinder before the arbitral tribunal has been constituted can only take place in institutionalised arbitration, and provided that the applicable arbitration regulation assures that the principle of equal participation of all parties is upheld, including members of multiple parties, in the choice of the arbitrators.

Taking into consideration that all parties to the arbitration agreement is a mandatory requirement for the voluntary joinder, if all parties do not agree to the intervention, the tribunal cannot allow for it²³.

Footnotes:

²³ Art. 36 LVA

Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party and after hearing the opposing party, grant the interim measures it deems necessary in relation to the subject-matter of the dispute notably ordering a party to²⁴:

a) Maintain or restore the status quo pending determination of the dispute;

b) Take action that would prevent, or refrain from taking action that is likely to cause, harm or prejudice to the arbitral process itself;

c) Provide a means of preserving assets out of which a subsequent award may be satisfied;

d) Preserve evidence that may be relevant and material to the resolution of the dispute.

State courts have the power to issue interim measures pending the constitution of the tribunal and in relation to arbitration proceedings, irrespective of whether their place is, as they have in relation to proceedings in state courts²⁵.

Footnotes:

²⁴ Art. 20 LVA

²⁵ Art. 29 LVA

No.

Anti-suit and/or anti-arbitration injunctions are neither available nor enforceable in Portugal.

Although the parties are free to determine the rules of evidence, there is a clear trend for parties to use the same types of evidence as those used in judicial proceedings, such as documents, witnesses, experts, party evidence and so on.

Notwithstanding the above, there are rules in the LVA governing evidentiary matters in arbitration such as art. 30 (4), 32 (2), 33 (3), 34, 35 (3), 37 and 38.

In Portuguese jurisdiction State Courts may play a role in the obtaining of evidence by ordering a party or a third party who have control over an evidence and refuses to cooperate in providing it, to produce said evidence before the State Court²⁶.

There are no provisions foreseeing the possibility of a local court to compel witnesses to participate in arbitration proceedings.

However, although we are not aware of any State Courts decisions ruling on the matter, we do not exclude that art. 38 of the LVA may also be interpreted in the sense that State Courts may compel witnesses to participate in arbitration proceeding, provided that said witnesses are absolutely essential to testify on the fact matter at stake. This is because the referred LVA article only mentions “evidence” without restricting it only to documental prove.

Footnotes:

²⁶ Art. 38 (1) LVA.

Counsel are required to follow the statutory rules and the Code of Ethics of the Portuguese Bar Association.

There are no specific ethical code and other professional standards applicable to arbitrators (besides the duties of independence, impartiality, disclosure and confidentiality) conducting proceedings in Portugal.

However, as mentioned above (please refer to question 6.), the Portuguese Arbitration Association (APA) recently (2020) approved the Code of Ethics.

Notwithstanding the fact that only APA members are bound in their work in arbitration proceedings by this Code, it is aimed at a universe of professionals largely different, thus containing guiding principles of arbitration ethics applicable to arbitrators and to the representatives of the parties (counsels) in arbitration proceedings.

Yes.

Article 30 (5) of the LVA states that “The arbitrators, the parties and the arbitral institutions, if applicable, are obliged to maintain confidentiality regarding all information they obtain and documents brought to their attention in the course of the arbitration proceedings, without prejudice to the right of the parties to make public procedural acts necessary to the defence of their rights and to the duty to communicate or disclose procedural acts to the competent authorities, if so imposed by law.”.

The costs of arbitration proceedings are usually estimated and allocated in the beginning of the arbitration by the parties who in the vast majority of cases determine that said costs will be supported by the losing party.

However, unless otherwise agreed by the parties, the amount payable and allocation of the costs of the arbitral proceedings are determined by the arbitrators in the award.

The arbitrators may decide in the award, if they so deem fair and appropriate, that one or some of the parties shall compensate the other party or parties for the whole or part of the reasonable costs and expenses that they can prove to have incurred due to their participation in the arbitration²⁷.

Footnotes:

²⁷ Art. 42 (5) LVA

Yes.

If interests are claimed by a party, the arbitral tribunal may order the other party to pay the requested sum in accordance with the contractual or legal interest rates applicable to the case.

Awards made in domestic arbitrations are enforced on the same terms as judgments of state courts. Therefore, the enforcement takes place within the state courts of first instance, without the need for any recognition or confirmation procedure.

The recognition and enforcement of foreign awards follows the New York Convention rules if the country of origin is a signatory, resulting in fewer opportunities to refuse to recognise and enforce the award.

Where a country is not a signatory to the New York Convention or any other treaties, conventions or European Union regulations that bind Portugal, these awards must undergo an internal procedure within the Portuguese state courts in order to be recognised and confirmed. Only after this procedure may such awards be enforced in Portugal²⁸.

The grounds for refusal of recognition and confirmation are wide but a review of the merits is still not admissible even in such cases²⁹.

The award must, in any case, be sufficiently reasoned, unless the parties have agreed otherwise or the award results from a settlement between the parties³⁰.

Footnotes:

²⁸ Art. 55 LVA

²⁹ Art. 56 LVA

³⁰ Art. 42 (3) LVA

Article 57 of the LVA establishes the recognition proceedings procedure.

According to this provision, after the application for recognition, accompanied by the relevant documents, is made, the opposing party shall be summoned to present its opposition, within 15 days and, after the written pleadings and the procedural steps deemed indispensable by the rapporteur are taken, access to the file is granted to the parties and to the Public Prosecutor, for 15 days, for the purpose of closing arguments. Finally, the trial is conducted pursuant to the rules applicable to the appellate appeal [“Recurso de Apelação” under the Civil Procedure Code].

Giving the deadlines foreseen in the above mentioned article described above and taking also into consideration our experience, the estimated timeframe for the recognition and enforcement of an award would be of 3 to 6 months.

As derives also from the referred provision, a party may not bring a motion for the recognition and enforcement of an award on an ex parte basis.

Yes (please refer to question 34)

Yes, LVA establishes that only disputes involving economic interests can be subject to arbitration. Disputes that do not involve economic interests are also valid provided that the parties are entitled to conclude a settlement on the issue under dispute.

There are no remedies that cannot be enforceable by the State Courts.

The award is final unless the Parties stipulate in their arbitration agreement that it may be subject to appeal before the State Courts and provided that the dispute has not been decided ex aequo et bono or as amiable compositeur ³¹.

The grounds of the appeal are the same of those which may substantiate an appeal from a State Court’s decision. Regarding the procedure, the appealing party has, as a general rule, 30 days to file its statements of appeal before the Appeal Court and the counterparty has an equal timeframe to file the counterstatements. After that, the Appeal Court decides on the appeal³².

Apart from appealing against the award, the parties may challenge an award bringing a legal action for the annulment or setting aside of the award, on one or more of the following bases:

• a party to the arbitration agreement was under some incapacity;
• the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any specification of that law, under the Portuguese Arbitration Act;
• a mandatory principle of the procedure has been breached;
• the award deals with a dispute not contemplated by or not falling within the terms of submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration;
• the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties;
• the subject matter of the dispute is not capable of settlement by arbitration under Portuguese law;
• the award is in conflict with the public policy of Portugal; or
• the award does not include the necessary signatures of the arbitral tribunal or is insufficiently reasoned. 100

The action seeking annulment must be filed within 60 days of the notice of the award to the parties or, if a request has been made to the arbitral tribunal to clarify any obscurity or ambiguity of the award, from the date on which the arbitral tribunal has decided on that request³³.

Footnotes:

³¹ Art. 39 (4) and 59 (1) (e) LVA

³² Art. 638 of the Portuguese Civil Procedure Code.

³³ Art. 46 LVA

The parties can waive any rights of appeal from an award by agreement before the dispute arises, notably in the arbitration clause (as mentioned in the previous answer, if the parties does not expressly agree in the arbitration agreement that the award can be appealed, it is consider that they’ve waived their right to the appeal and the award is final³⁴).

However, the right to apply for the annulment of the award is a mandatory provision of the LVA that cannot be excluded by agreement between the parties and will prevail over any clause of the arbitration agreement that states otherwise³⁵.

Footnotes:

³⁴ Art. 39 (4) LVA

³⁵ Art. 46 (5) LVA

(In this question, we presume that, by “third parties”, you refer to third parties regarding the arbitrational agreement / proceedings / award.)

As mentioned above (please refer to question 12.), only third parties bound by the arbitration agreement are allowed to join in ongoing arbitral proceedings based on such arbitration agreement. Therefore, only third parties who join in an ongoing arbitration can be bound by the award to be issued at the end of said arbitral proceedings.

A third party vis a vis the arbitrational proceedings, cannot challenge the recognition of an award since they are not bound by the award.

The APA Code of Ethics defines a ‘third-party funder’ as ‘any natural or legal person who is not a party or legal representative of a party to the dispute and contributes financial support (for consideration or for free), or other economic support, for the judgement of the claims of one of the parties to the dispute and has an economic interest in the outcome of the dispute or a possible obligation to indemnify one of the parties as a consequence of such a result’ (see article 18, No. 2).

The main concern of the Code of Ethics regarding third-party funders is that the parties provide enough information on the participation of any third-party funder (see article 18, No. 1) in order to avoid potential conflicts of interest with anyone involved in handling the case.

For the first time in Portuguese soft law regarding arbitration, rules have been established concerning third-party funders. In the absence of regulation for third-party funding, this is most opportune.

However, to the best of our knowledge, no court decisions were issued yet in Portuguese jurisdiction considering third party funding in connection with arbitration proceedings.

Preliminary orders are admissible in arbitration proceedings in Portugal pursuant to the provisions of articles 21 to 26 of LVA.

A preliminary order shall be binding on the parties but shall not be subject to enforcement by a state court³⁶.

In addition, the Rules of Arbitration of the Arbitration Centre of the Portuguese Chamber of Commerce and Industry also contains provisions on emergency arbitration proceedings³⁷.

These rules establish that arbitrators are entitled to issue preliminary orders, without the need for prior adversarial proceedings by the respondent, but always on a provisional basis and provided that the urgency requirements are met (thus in line with the LVA provisions on the matter).

Footnotes:

³⁶ Art. 23 (5) LVA.

³⁷ Art. 5 of the Rules and the rules on emergency arbitrators therein attached.

Yes, on April 1st, 2021, the Arbitration Centre of the Portuguese Chamber of Commerce and Industry approved the Fast Track Arbitration Rules.

The threshold amount to resort to fast-track arbitration is now set at €400,000 or below (instead of the previous threshold of €200,000 or below).

Moreover, the rules now give the sole arbitrator discretion regarding how to conduct the arbitral proceedings, while respecting the parties’ rights, which allows for more expeditious and efficient proceedings in arbitrations of lesser complexity.

To the best of our knowledge, there are no statistics publicly available regarding the use of this kind of arbitration.

In our opinion, diversity in the choice of arbitrators and counsel is not actively promoted in Portugal.

Notwithstanding the above, some arbitration institutions have been manifesting their intention to promote the said diversity, notably the Portuguese Arbitration Association which, in the message of its Chairman published in the official website, states that In the exercise of its statutory duties, APA pursues a policy of age and gender diversification, clearly evident in the current composition of its Board of Directors and in the importance assumed by the under-40 members, who are now an essential component of the Association³⁸.

Footnotes:

³⁸ Available here: A Word from the Chairman – About Us – APA – Portuguese Arbitration Association (arbitragem.pt)

After a thorough search and analysis of recent court decisions in Portugal, considering the setting aside of an award that has been enforced in another jurisdiction or vice versa, we were unable to find any.

There have been many recent court decisions in Portugal considering the issue of corruption, some of them with public relevance.

Portuguese State Courts apply a very high standard for proving corruption notably by putting the burden of prove of the corruption in the Accusation / Public Prosecution.

Thus, cases of corruption are very often dismissed due to the difficulty in proving corruption.

To address the challenges brought by the COVID-19 pandemic, Portuguese arbitral institutions immediately adopted remote hearings and semi-remote hearings.

In 2020 / 2021, even when judicial proceedings in general were suspended due to covid-19 related legislation³⁹,  Portuguese arbitration practitioners generally – subject to the parties’ agreement – pushed on, keeping their cases alive and holding completely remote hearings as well as (once the most severe restrictions started to be lifted) several semi-remote hearings.

Footnotes:

³⁹ Judicial proceedings in Portugal were suspended, in general, between 13 March 2020 and 3 June 2020 (suspension ordered under Law 1-A/2020 of 19 March 2020 and lifted under Law 16/2020 of 29 May 2020) and between 22 January 2021 and 6 April 2021 (suspension ordered under Law 4-B/2021 of 1 February 2021 and lifter under Law 13-B/2021 of 5 April 2021). See all covid-19 related legislation at https://dre.pt/legislacao-covid-19-upo.

Yes.

Arbitration centres installed equipment to enable remote hearings and semi-remote hearings (proper recording and audio devices, online platforms controlled by the centres that allow remote participation in the hearing, as well as screening share for document display, breakout rooms, etc).

Therefore, they are now better equipped to tackle all the technological issues that a non-presential hearing may raise.

Furthermore, remote hearings have proved to be more efficient in many cases (saving time and costs in displacements across countries, for instance) and in many others enabled the participation of witnesses who otherwise would not be able to attend the hearing (because they were for some reason unable to travel to the tribunal).

In addition, the new rules of the Arbitration Centre of the Portuguese Chamber of Commerce and Industry expressly foresee the possibility of holding remote hearings (article 14, Nos. 2 and 3).

The decision to hold the hearing remotely falls on the arbitral tribunal, but only after hearing the parties and when it is possible to assure that the due process rules are observed (article 14, No. 3).

We are not aware of any recent developments in Portuguese Jurisdiction with regards to disputes on climate change and/or human rights.

Nevertheless, reference must be made here to the fact that, in 2020, a group of Portuguese young citizens filed a claim before the European Court of Human Rights against 33 states based on climate inaction⁴⁰.

If the Court decides in favor of the claimants, the referred States will be “legally obliged” to accelerate the diminishing of the polluting emissions.

Footnotes:

⁴⁰ Processo contra 33 países por inação climática vai ser julgado pela instância mais alta do Tribunal Europeu dos Direitos Humanos – Expresso
Tribunal Europeu dos Direitos Humanos recebeu 260 queixas contra Portugal em 2021 | Direitos humanos | PÚBLICO (publico.pt)

Yes, the courts in Portuguese jurisdiction consider international economic sanctions as part of their international public policy.

We are not aware of any recent decisions in Portugal considering the impact of sanctions on international arbitration proceedings.

We are not aware of the implementation in Portugal of any rules or regulations regarding the use of artificial intelligence, generative artificial intelligence or large language models in the context of international arbitration.