Portugal

In summary

This article outlines Portugal’s position as a domestic and international arbitration hub by exploring its legislative framework and arbitral institutions. It then analysis the case law of the state courts, which is very arbitration-friendly, upholding the jurisdiction of arbitral tribunals and annulling their awards only in truly exceptional cases. Finally, it addresses the new rules and regulations of the arbitration centres and associations, which aim to keep Portugal up to date with the latest trends and best practice in international arbitration.

Discussion points

• Portugal as a hub for international arbitration: legislative framework, recently ‘pro-arbitration’ case law and institutions
• The conduction of arbitral proceedings in Portugal during the covid era
• The new Rules of Arbitration and Corporate Arbitration Rules published by the Arbitration Centre of the Portuguese Chamber of Commerce and Industry
• The Code of Ethics and the Code of Best Practice for Arbitration Experts published by the Portuguese Arbitration Association

Referenced in this article

• Law No. 63/2011, of 14 December
• Remote hearings in arbitration proceedings
• Rules of Arbitration of the Arbitration Centre of the Portuguese Chamber of Commerce and Industry
• Corporate Arbitration Rules of the Arbitration Centre of the Portuguese Chamber of Commerce and Industry
• Code of Ethics of the Portuguese Arbitration Association
• Code of Best Practice for Arbitration Experts

Introduction: arbitration in Portugal

Arbitration has been well established in Portugal as a mechanism of alternative dispute resolution for many years now. It is common for parties to include arbitration clauses in their contracts, in particular when these involve complex and large transactions and even more so when there is an international element. There is also a large and vibrant local arbitration community, with increasing number of experienced practitioners and arbitrators in both domestic and international arbitration. Furthermore, Portuguese state courts rarely challenge arbitral awards, taking a truly arbitration-friendly stance by fully applying the competence-competence principle and only annulling arbitral awards in very exceptional circumstances.

The law on voluntary arbitration that is currently in force – Law 63/2011 of 14 December^[1] (Law 63/2011), drafted in line with the UNCITRAL Model Law, introduced a more modern arbitration regime, following emerging international trends already seen in other European jurisdictions and thus allowing Portugal to be recognised as a seat for international arbitration. Moreover, Portugal ratified the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) without reservations in 1994.

Portugal currently has more than 30 arbitration centres^[2] 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 Arbitration Centre of the Portuguese Chamber of Commerce and Industry 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 new rules of arbitration published in 2021^[3] – which we will analyse in further detail below – take on great importance and should be considered central elements for all arbitration practitioners and academics in Portugal.

In 2020, more than 15,000 arbitration proceedings were initiated before arbitral institutions in Portugal, most of which are focused on insurance, transport and communications matters.^[4]

On the other hand, given the similarities in the legal systems and the common language, Portugal offers unique conditions for acting as a seat for international arbitrations with links to Portuguese-speaking African countries and is slowly but surely building its reputation as an alternative to other international seats. Portugal is also party to over 50 bilateral investment treaties (BITs)^[5] and to many multilateral treaties, including the Energy Charter Treaty and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention).

Arbitral proceedings: the covid-19 era and remote hearing

After 18 months of living through a pandemic, and following the uncertainty of the first few months – when the world was still adapting to working from home as a general rule – it is probably safe to say that remote hearings and semi-remote hearings have come to stay. In the past year, even when judicial proceedings in general were suspended due to covid-19 related legislation,^[6] 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.

Parties and practitioners are now more prepared for the challenges that a remote or semi-remote hearing poses (including those related to remote cross-examination of witnesses). Additionally, arbitration centres are also now better equipped to tackle all the technological issues that a non-presential hearing may raise (proper recording and audio devices, online platforms controlled by the centre that allow remote participation in the hearing, as well as screening share for document display, breakout rooms, etc). All this has also enabled the most experienced international arbitration centres and practitioners to issue recommendations and best practices,^[7] which have been well accepted by the Portuguese arbitral community, aware that it is of the utmost importance to implement a protocol for these types of hearings (to ensure that everything runs smoothly during the hearing).

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).

With the world now returning to the ‘new normal’, the Portuguese arbitration community has become familiar with remote hearings, and semi-remote hearings, which are therefore likely to also become part of that ‘new normal’. In fact, this ‘new normal’ did not prevent the parties from initiating arbitration proceedings, since 2020 saw more arbitration proceedings initiated in Portugal.^[8]

A good example that remote hearings have come to stay is that 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).

Case law: Portugal as an arbitration-friendly country

Arbitration practice in Portugal has been well established for many years. State courts and arbitration tribunals coexist peacefully, and respect for their respective competences is evident from the most recent case law on arbitration. It is particularly relevant to point out that state courts in Portugal have adopted an arbitration-friendly stance, recognising their lack of jurisdiction to rule on disputes submitted to arbitration, even in cases where one of the parties questions the validity of the arbitral clause or of the contract or agreement containing the arbitral clause. Moreover, Portuguese state courts have over the years adopted a relatively restrictive stance towards the interpretation and application of the rules set out in Law 63/2011 on the annulment of arbitral awards.

Arbitral clauses and the competence-competence principle

Following the provisions of the UNCITRAL Model Law, Law 63/2011 expressly establishes the positive and negative effects of an arbitration clause (see articles 1, 2 and 5 of Law 63/2011). Moreover, the competence-competence principle has been recognised in law (see article 18 of Law 63/2011) and by the Portuguese state courts, so that there is no legal obstacle to the constitution of the arbitral tribunal or even to issuing the final arbitral award in cases where arbitral clauses have been challenged before state courts.

Recent years have shown that it continues to be widely accepted that arbitral clauses shall prevail. This rule applies even in cases where the arbitral clause was part of a standard form contract that was signed by a third party acting on the party’s behalf^[9] or where there is a third party who was jointly and severally liable with the original debtor but who is not a party to the arbitral clause.^[10]

State courts frequently apply the competence-competence principle. In another recent case, the Lisbon Court of Appeal^[11] ruled that arbitral tribunals also had jurisdiction to determine the enforceability of an arbitral clause, in light of the right to effective judicial protection, in a case where the party claimed it was not financially able to bear the costs of arbitration, by relying on the competence-competence principle. In fact, recent case law holds that state courts should only examine whether the arbitral clause is clearly null and void^[12] – if not, they must rule that they have no jurisdiction and refer the parties to arbitration.

Annulment of the arbitral award

A filing for annulment is the only case where an arbitral award can be challenged before state courts, unless, of course, when the parties expressly provide that the award will be subject to appeal. The grounds for annulment of an arbitral award are expressly provided in article 46 of Law 63/2011.

An arbitral award may only be annulled in cases where (1) the arbitral clause was invalid or the dispute itself was not subject to such arbitration; (2) the arbitral tribunal was not constituted in accordance with the parties’ agreement, having a material impact on the final award; (3) there was a violation of due process or of the principle of equality of the parties that is relevant to the decision; (4) the arbitral award itself did not comply with the formal requirements or was issued after the deadlines provided for in the law; (5) the dispute is not subject to arbitration; or (6) the arbitral award violates fundamental principles of the international public policy of the Portuguese state.

In fact, recent case law also shows that state courts have dismissed most of the many proceedings for the annulment of arbitral awards initiated in Portugal, taking the view that the demanding requirements of Law 63/2011 are not met and that, in any case, state courts cannot assess the merits of arbitral awards.^[13] This consistent and uniform approach from appeal courts in Portugal on the demanding requirements for setting aside arbitral awards is expected to act as a deterrent to sometimes frivolous or abusive annulment suits and in general terms contribute to the consolidation of Portugal as an arbitration-friendly jurisdiction.

Arbitral institutions: the new rules of the Arbitration Centre of the Portuguese Chamber of Commerce and Industry and of the Portuguese Arbitration Association

The year 2021 brought relevant news in the arbitration field, with two of the main local arbitral institutions issuing new rules and regulations.

The new rules of the Arbitration Centre of the Portuguese Chamber of Commerce and Industry

The first Portuguese law on voluntary arbitration – which precedes the current Law 63/2011 – was published in 1986. The following year, the Portuguese Chamber of Commerce and Industry requested authorisation from the Ministry of Justice to establish an arbitration centre, which was granted that same year,^[14] with its first arbitration proceedings being initiated in 1990.^[15]

The Arbitration Centre of the Portuguese Chamber of Commerce and Industry is currently responsible for resolving disputes related to any economic matter, whether of a public or private nature and domestic or international, provided that submission to voluntary arbitration is not excluded by law.

Following a public discussion^[16] within the community of arbitration academics and practitioners in Portugal that was conducted by the Arbitration Centre of the Portuguese Chamber of Commerce and Industry in 2021, four new sets of rules were approved on 1 April 2021:

• the Rules of Arbitration;
• the Corporate Arbitration Rules;
• the Fast Track Arbitration Rules; and
• the Pre-contractual Administrative Arbitration Rules.

Rules of Arbitration

The Arbitration Centre of the Portuguese Chamber of Commerce and Industry has already had three different Rules of Arbitration – in 1987, in 2008 and in 2014, with that last set of rules aimed at adapting the rules to the new provisions of Law 63/2011.

Therefore, in the context of the revision and approval of new rules applicable to arbitration proceedings conducted by the Centre, it was decided to introduce some amendments to the general Rules of Arbitration. These adjustments build on the positive experience of applying the 2014 Rules of Arbitration and follow in the footsteps of similar recent adjustments in the rules of other international arbitration centres.

Rules applicable to emergency arbitration proceedings – preliminary orders

An important modification to the 2021 Rules of Arbitration concerns the provisions on emergency arbitration proceedings (see article 5 of the Rules and the rules on emergency arbitrators therein attached). These rules establish that arbitrators are now 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. Preliminary orders are also admissible in arbitration proceedings in Portugal pursuant to the provisions of articles 21 and 22 of Law 63/2011.

Appointment of arbitrators

With regard to the appointment of arbitrators – in cases where they are appointed by the Centre and not by the parties themselves – the Rules of Arbitration now provide that the Centre’s President can choose the arbitrators at his or her discretion or request the participation of the Centre’s Vice-President in the decision (see article 27, No. 8 of the Rules). This rule aims to help ensure that appointed arbitrators are completely independent and impartial.

Third-party funding

With third-party funding making its way into the arbitration arena in Portugal, the new Rules of Arbitration of 2021 now provide that, in order to guarantee the independence and impartiality of the arbitrators, parties must inform the Centre’s Secretariat, the arbitrators and the other parties to the proceedings of any third-party funding (see article 10, No. 5, of the Rules). This is a welcome and opportune innovation in the Rules, in a country where third-party funding is yet to be regulated.

Appealing arbitral awards

A further amendment introduced by the 2021 Rules of Arbitration relates to the possibility for parties to expressly provide that the arbitral award may be subject to appeal, except for cases where the dispute was decided on the basis of ex aequo et bono – see article 42 of the Rules. Once again, this amendment is in line with the general rules provided for in article 39, No. 3 of Law 63/2011. Thus, cases in which the parties decide that the arbitral award is subject to appeal are no longer excluded from the jurisdiction of the Centre.

Corporate Arbitration Rules

As in other jurisdictions, over the past decades corporate arbitration has been on the agenda of domestic discussions regarding the progress of arbitration in Portugal. The resolution of intra-corporate disputes – concerning the application of the law or of company by-laws – is still left, for the most part, to the state courts.

On the one hand, arbitration provides a faster and more efficient mechanism for dispute resolution – particularly in light of the well-known bottleneck of the Lisbon Commercial Court – which could provide greater dynamism and innovation in the resolution of intra-corporate disputes by specialised arbitrators, following an investor-led governance.^[17] On the other hand, corporate arbitration raises important theoretical questions as to the scope and extent of the arbitration clause – and, therefore, the arbitral award itself – since it is very common for not all of the shareholders at a given moment to have expressly agreed to the arbitration clause included in the by-laws. Moreover, the potentially high costs of arbitration seem to be an unfavourable argument when considering the need for minority protection.^[18]

Corporate arbitration relates to litigation between the company and/or the shareholders regarding disputes over corporate matters stricto sensu (and not disputes related to shareholders’ agreements, which are frequently subject to arbitration), in particular related to company by-laws or applicable legal rules. Although following the general requirements on arbitrability provided in Law 63/2011, corporate matters may, in principle, be subject to arbitration, in practical terms this has not been the case in part due to the above-mentioned theoretical questions, but also because of not less relevant practical issues.

In an effort to overcome these hurdles, in 2018 the Portuguese Arbitration Association submitted a project for a decree-law on corporate arbitration to the Justice Secretary of State.^[19] Although there have been several intense discussions on the said project, unfortunately, three years later Portugal still does not have any legislation on corporate arbitration.

In this context, intending to provide a measure of clarity and confidence in the field of corporate arbitration and in anticipation of the much-awaited legislation on the subject, on 1 April 2021, the Arbitration Centre of the Portuguese Chamber of Commerce and Industry approved the Corporate Arbitration Rules, thus taking an important first step towards effective implementation of corporate arbitration in Portugal.

Corporate matters subject to arbitration

According to article 1 of the Rules, they shall apply to all corporate litigation, whether between the company and its shareholders, between the shareholders themselves while exercising their corporate rights (legal or provided in the by-laws) or between members of other governing bodies of the company.

Arbitration clause

The requirement for the arbitration clause is that it must be included in the company by-laws, in accordance with article 3, No. 1 of the Rules. The Rules do not offer – at least for the time being – an answer to the various problems concerning the scope and extent of the arbitration clause, particularly when it comes to disputes with members of other governing bodies of the company who may not have expressly accepted the provisions of the by-laws. Such questions are now left to the legislature or even to arbitration practice itself.

Appointment of arbitrators

Regarding the appointment of arbitrators, the Rules also follow the general regime provided for in the Rules of Arbitration (see article 7 of the Rules of Arbitration and articles 4 and 5 of the Corporate Arbitration Rules). As for arbitral proceedings where the arbitral award can apply to all shareholders, whether they are party to the arbitration proceedings or not, it is provided that the Centre’s President will be responsible for appointing the arbitrators. This is a significant deviation from the rule that the appointment of arbitrators is at the discretion of the parties (see article 5, No. 2 of the Rules).

Registration of the arbitral proceedings

Moreover, according to article 5, No. 3 of the Rules, the Centre’s President cannot appoint the sole arbitrator or the arbitrators until the parties submit evidence that the pending arbitral proceedings are duly registered with the Commercial Registry. As a rule, most intra-corporate litigation is subject to mandatory registration under article 9 of the Portuguese Commercial Registration Code, but the need for such registration to take place before the constitution of the arbitral tribunal may raise significant practical difficulties.

Interim measures

The Corporate Arbitration Rules further provide that parties may submit a request to an emergency arbitrator, following the general rules on emergency arbitrators (see article 10 of the Rules). In any case, and despite the recent changes to the Rules of Arbitration, preliminary orders seem to be excluded and all interim measures must follow an adversarial process.

Additionally, the Rules provide for a specific interim measure of suspending corporate resolutions (see article 11 of the Rules). It is also foreseen that the appointment of the emergency arbitrator by the Centre depends on the registration of the interim measure. This raises an even more pressing concern and might represent a significant risk for the claimant – considering the short 10-day legal deadline for filing for this interim measure – in the event the registration is not admitted, since the arbitral tribunal has not yet been constituted.

The hot topics regarding the arbitrability of intra-corporate disputes – that is, the practical difficulties in obtaining proper consent from all parties to the arbitral clause and the effects of a final arbitral award vis-à-vis third parties^[20] – require further steps to be taken if corporate arbitration in Portugal is to have its own place. Although these matters cannot be definitively solved by the regulations of domestic arbitration centres, the Corporate Arbitration Rules are an important first step in the development of intra-corporate arbitration in Portugal. In any case, the absence of specific legislation on this matter could pose significant questions in future intra-corporate arbitrations, so that the actual development of arbitrations of this nature in application of the Rules may be dependent on the approval of the much-awaited decree-law on corporate arbitration.

Other rules

Fast-track arbitration rules

The rules applicable to fast track arbitration have undergone minor amendments. 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.

Pre-contractual administrative arbitration rules

On 1 April 2021, the Centre also approved a set of rules applicable to pre-contractual administrative arbitration. These rules aim to regulate arbitration proceedings regarding the formation of specific public contracts (construction, concessions for construction or provision of services, etc). These rules are, once again, special arbitration rules (which must coexist with the application of the general regime set out in Rules of Arbitration) that provide specific mechanisms concerning (1) the constitution of the arbitral tribunal; (2) the conducting of the arbitration proceedings; (3) the effects of a pending arbitration; and (4) interim measures in such arbitration proceedings.

The new rules of the Portuguese Arbitration Association

In November 2020, the Portuguese Arbitration Association (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 Experts.^[21]

The Code of Ethics

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,^[22] with the main purpose of preserving the integrity of arbitration proceedings.

Confidentiality

As a general rule, the Code of Ethics establishes that all the parties to the proceedings must maintain absolute confidentiality with regard to all aspects of the case (see article 3, No. 2).

Independence and impartiality and extended duty of disclosure

With regard to the arbitrator’s main duties, the Code of Ethics also 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).

Prohibition on communication between the arbitrators and the parties’ representatives

The Code of Ethics is quite clear in prohibiting communications (whether oral or written) between the arbitrators and the parties’ representatives regarding the subject of the case or arbitral proceeding. In fact, it establishes this prohibition both for arbitrators (see article 8, No. 2) and for the parties’ representatives (see article 17).

There are only two exceptions to this rule. Before accepting the position, arbitrators may request from the party inviting them a brief description of the case and information on the parties, third parties and other arbitrators (see article 8, No. 1). Arbitrators may take into consideration the position of the party who appointed them when deciding on the choice of the chairperson (see article 8, No. 3).

Third-party funders

For the first time in Portuguese soft law regarding arbitration, rules have been established concerning third-party funders. As mentioned above, in the absence of regulation for third-party funding, this is most opportune and a welcome initiative.

The 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.

The main duties of the parties’ representatives

As a general rule, the Code of Ethics establishes that the parties’ representatives must act with integrity and honesty, avoiding any conduct that may obstruct the expeditious and efficient conducting of the arbitral proceedings (see article 15). Additionally, the parties’ representatives must (1) refrain from producing written or oral statements that they know are untrue and must warn the parties that they must respect the truth (see article 19, No. 1); and (2) refrain from resorting to legal grounds that do not exist and from distorting the meaning of case law (see article 19, No. 2).

Furthermore, the parties’ representatives must not cooperate in creating false evidence or in destroying relevant evidence, and must warn the parties of the duty not to do so (see article 19, No. 3) and of their duty to provide all documents requested by the arbitrators (see article 19, No. 4).

However, it is also clear that the parties’ representatives may assist the witnesses and experts in preparing their statements and reports (see article 20, No. 2) – which puts down in writing a practice that is well established within the arbitration community.

The Code of Best Practices for Arbitration Experts

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.

Objectivity and independence

It is clear that the expert’s main job is to help the court decide on the topics that require knowledge or experience in particular fields (see article 3, No. 2). Therefore, experts must be willing to contribute to the court’s decision, providing their expertise while keeping an objective distance from the party that appointed them (see article 3, No. 3).

The duty of disclosure is also applicable to experts, so they must disclose any facts or circumstances that may raise doubts about their independence or objectivity or any potential conflicts of interest (see article 4).

Rules applicable to expert evidence

Apart from the formal requirements applicable to expert reports,^[23] the Code of Best Practices also clarifies that the representatives of the parties may assist the experts in preparing their reports and statements (see article 5, Nos. 1 and 2).

The Code also establishes that the due process principles must be observed in any communications between the arbitral tribunal and the experts (see article 5, No. 4).

Experts’ fees

Experts’ fees shall be paid directly by the party who appoints them, notwithstanding the fact that such cost may be taken into consideration in the final allocation of costs to be decided by the arbitral tribunal (see article 6, No. 1).

Confidentiality

Like all the other participants in an arbitration, experts are also bound by confidentiality and therefore cannot disclose or use any information obtained in the proceedings. However, this duty does not prevent the experts from disclosing information that allows them to identify (in general and broad terms) the arbitrations in which they have participated (see article 7).

Notes