The Lisbon Court of Appeal recently ruled on a request to remove an arbitrator in proceedings between a patentee and the applicant for marketing authorisation for a generic medicine. The court decided that the arbitrator's repeated appointment by the same parties in disputes about the same active ingredient cast doubt on his independence and ordered his disqualification.
A recent case arose from the disputed connection between three contracts, of which only the first included an arbitration clause; however, the third contract generally incorporated the first. The Supreme Court held that the temporal, functional and economic connection between the contracts made clear that despite the autonomy of the contracts, the arbitration clause in the first contract applied to the third.
Including: A decade of growth; Case law; New arbitration legislation.
Disputes concerning non-disposable rights cannot be arbitrated. However, the Lisbon Court of Appeal recently held that in such cases the invalidity of an arbitration agreement relates only to those rights which are absolutely non-disposable, not to those which are relatively non-disposable, such as rights that involve an economic interest.
The Supreme Court recently addressed the mechanisms available, under both arbitration legislation and the Code of Civil Procedure, to parties seeking to challenge an arbitral award. The decision is seen as favouring arbitration in general, but recommends amendments to the legal framework for challenging arbitral awards - a new draft law proposes an improved approach to a number of its shortcomings.
The Lisbon Court of Appeal has stated that agreements from which a dispute stems must contain arbitration agreements directly, rather than in a document to which the agreement signed by the parties refers. This goes against the court's usual trend of interpreting the law in line with international practice and theory.
The Supreme Court has held that an arbitral award under the New York Convention can be enforced automatically in Portugal without having been reviewed or confirmed. The court's conclusion - which is highly innovative internationally, let alone in Portugal - is open to debate, but undoubtedly marks a major change in Portuguese case law.
The Lisbon Court of Appeal recently affirmed the competence of arbitral tribunals to judge all tenancy disputes, including those related to the termination of lease agreements. Portuguese law does not state that the termination of a tenancy agreement must be judged by a court and not by an arbitral tribunal. Rather, the law states that the decision must be taken by a tribunal (including, therefore, arbitral tribunals).
The Évora Court of Appeal recently confirmed that interim measures ordered by a court can assist arbitration. The ruling also addressed the question of when a deadline to file main proceedings is satisfied by arbitration. The court held that where the tribunal has not been formed, the claimant can file main proceedings by notifying the other party to commence the formation of the tribunal.
The Lisbon Court of Appeal recently held that an arbitration agreement between two parties applied to a contractual third party. The court also found that an arbitral tribunal was competent to determine a dispute arising from the calculation of the value of a pension fund. The court held that non-transferable rights were not at issue, as the dispute related not to the plaintiff's right to a pension, but only to its value.
The Lisbon Court of Appeal has upheld an arbitral award in which the tribunal annulled resolutions adopted by a shareholders' meeting. However, such awards potentially affect all of a company's shareholders, regardless of whether they were aware of the arbitral proceedings. What precautions should a tribunal take to ensure that it is not being exploited to the detriment of other shareholders' rights?
The Porto Court of Appeal recently held that a party experiencing financial hardship - which arose after the parties had established an arbitration clause and was not intentionally caused - did not remain bound by the arbitration clause and could therefore file suit in court. If the case had been decided under the Insolvency and Corporate Rescue Code, the result would have been the same.
The Supreme Court recently confirmed that the suspension of arbitral proceedings does not entail the suspension of the time limit for issuing an award. Moreover, only the parties may amend the limit. Although not generally favourable to arbitration, in some respects the decision demonstrates a more flexible view of deadlines for awards, the competence of arbitral tribunals and the validity of arbitral agreements.
A recent Lisbon Court of Appeal decision demonstrates that entities which organize institutional arbitrations do not always incorporate basic principles of due process, and that the panels which they nominate or approve are not always familiar with these principles. The courts must protect arbitration from errors which affect the true spirit of alternative dispute resolution.
A recent decision by the Lisbon Court of Appeal is consistent with precedents that grant the courts competence to rule on interim measures when the parties in question are bound by arbitration agreements. However, the court's reasoning is unnecessarily detrimental to the power of arbitral tribunals to grant relief through interim measures in certain circumstances.
For the first time the Constitutional Court has upheld the constitutionality of the rule in Article 494(j) of the Code of Procedure that allows the dilatory exception of breach of the arbitration agreement. Such an objection may be enforceable against a party in a situation of supervening financial hardship that entitles it to legal aid.
Increasingly, states are accepting arbitration as a mechanism for settling disputes with private investors. However, a number of arbitral awards made public show that, when confronted with an arbitration, states that have signed arbitration clauses often resort to disruptive manoeuvres aimed at bringing the proceedings to a halt or setting aside the award.
A Portuguese court has held that courts do not have jurisdiction to grant interim measures if the disputing parties have agreed to arbitration. As a result, an important issue of procedural versus substantive law has arisen.
Including: Arbitration Law; National Arbitration and International Arbitration; Arbitration Clause; Request for Setting up of Arbitral Tribunal; Process; Challenging the Award and Appeals - Equity; Recognition of Foreign Awards and Respective Enforcement; Recognition; Enforcement