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19 December 2013
Legislation on arbitration has been in force in the Macau Special Administrative Region (MSAR) since before the handover to China on December 20 1999. Notwithstanding the long existence of an applicable regime and the five arbitral centres constituted, there have been only a few decisions rendered by an arbitral tribunal in Macau.
At present, the legal regime of internal arbitration is set out in Decree-Law 29/96/M (June 11 1996), as amended by Decree-Law 19/98/M (May 11 1998) and Decree-Law 110/99/M (December 13 1999). According to this regime, arbitration may be employed in any dispute that does not respect inalienable rights, provided that the dispute is not submitted by special law to a judicial court or necessary arbitration.
The arbitration convention, through which the parties decide to submit their dispute to arbitration, may be an arbitration commitment or an arbitration clause. In either case, the convention shall be settled in writing, under penalty of nullity. The arbitration clause is established by the parties of an agreement in the event that a dispute might arise between them regarding the terms and application of the agreement. If the arbitration clause is included in a contract, the clause is considered independent from the rest of the contract, meaning that the invalidity of the contract would not necessarily entail invalidity of the arbitration clause. Should there be a dispute between parties which have not previously stipulated an arbitration clause, they can reach an arbitration commitment to submit their dispute to an arbitral tribunal. The arbitrators will decide the case in accordance with the existing laws unless both parties have expressly authorised the arbitral tribunal to decide ex aequo et bono.
The arbitral tribunal may be composed of a sole arbitrator or of several odd-numbered arbitrators. Where the parties have not agreed on the number of arbitrators, the case shall be referred to a three-member arbitral tribunal. In this event, each party shall designate one arbitrator, and the two designated arbitrators will choose a third to compose the arbitral tribunal and appoint a president. If an agreement is not reached on either the third person to compose the arbitral tribunal or the one nominated as president, the court of general jurisdiction will appoint the third arbitrator, who will concomitantly act as the president of that arbitral tribunal.
The arbitrators are subject to the same impediment rules of the Civil Procedural Code. The arbitral tribunal shall be conducted in to ensures equal treatment of the parties and their right to be heard. Each party shall have full opportunity to support their claims, being guaranteed the principle of adversarial proceedings. The respondent is notified to present his or her defence and may also raise a counterclaim. Both parties will be heard orally or in writing before the final decision is rendered. If a respondent who has been duly notified does not file a defence within the deadline, the proceedings will continue but the respondent's silence will not be deemed as a confession of the facts alleged by the claimant. The parties may be represented or assisted by persons of their choice.
At the request of a party, the arbitral tribunal may grant any provisional or protective measures as it deems appropriate or may order the provision of appropriate security. Should the parties not comply with these decisions, the arbitral tribunal may request the court of general jurisdiction to order the enforcement of the measures. By submitting their dispute to arbitration under an arbitration convention the parties do not waive any right that they may have under the applicable laws to submit a request for a cautionary measure to a judicial court. Any evidence admissible under the laws of civil procedure shall also be admitted in arbitration.
If the arbitral tribunal is composed of more than one arbitrator, the award shall be made by a majority. The parties may agree that if there is no majority the award shall be made by the presiding arbitrator alone. The award shall be made in writing and should state the reasons on which the award is based. The parties may have established in writing an arbitral instance of appeal. Moreover, they can request that the arbitral tribunal correct any errors in the award within 30 days of its receipt.
The decision of the arbitral tribunal is enforceable in the court of general jurisdiction in the same terms as a decision rendered by the court.
In addition to the regime for internal arbitration, a specific regime for commercial external arbitration is provided for in Decree-Law 55/98/M (November 23 1998). This regime is similar to the United Nations Commission on International Trade Law.
With regards to recognition in MSAR of arbitral decisions made abroad, the general rule established for court decisions will also be applicable to arbitral awards. Given this, for a foreign arbitral decision to be executed in Macau the decision shall be reviewed and confirmed by a Macau court, except if there is an agreement between both jurisdictions exempting it.
MSAR is part of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards under the same terms as China, which means that the convention will apply only to disputes arising out of commercial relations.
There are two judicial cooperation agreements signed between MSAR and Mainland China.
Both agreements establish the terms of confirmation and reciprocal enforcement of the decisions covered by the agreements. More recently, MSAR and Hong Kong Special Administrative Region have executed a cooperation agreement concerning reciprocal recognition and enforcement of arbitral awards. Under the agreement (signed on January 7 2013 and entered into force for both parties on December 16 2013), if a party fails to comply with an arbitral award, the other party may apply to the relevant court in the place where the party against whom the application is filed is domiciled or the place in which the property of the said party is situated. However, in both arrangements – signed with China and Hong Kong SAR – the confirmation and recognition of the arbitral award is not automatic, as it must be requested by a party and may be rejected by the court according to the requirements stated therein.
Estranged parties should seek arbitration more often. As an alternative means of dispute resolution arbitration can lead to more expeditious solutions, releasing judicial courts from a number of cases that can be decided through arbitration in a manner as fairly as it would be in a judicial court.
For further information on this topic please contact Pedro Cortés or Marta Mourão Teixeira at Rato Ling Vong Lei & Cortés Advogados by telephone (+853 2856 2322), fax (+853 2858 0991) or email (email@example.com or firstname.lastname@example.org). The Rato Ling Vong Lei & Cortés Advogados website can be accessed at www.lektou.com.
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