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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Portugal.
2. Date of entry into force of the New York Convention
16 Jan. 1995.
(Source: Notice (‘Aviso’) of the Ministry of Foreign Affairs No. 142/95 of 21 June 1995.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Portugal made the reciprocity reservation provided for in Art. I(3) of the New York Convention. Therefore, insofar as no other international convention applies, domestic rules on the recognition and enforcement of arbitral awards apply to the recognition and enforcement of foreign arbitral awards that have not been made in the territory of another Contracting State.
The practical impact of such reservation is currently very limited, since Arts. 56 and 57 of the Law on Voluntary Arbitration, approved by Law No. 63/2011 of 14 Dec. 2011 and in force since 15 March 2012) has incorporated Arts. IV, V and VI of the New York Convention into Portuguese law.
(Source: Decree of the President of the Republic No. 52/94 of 8 July 1994.)
(b) commercial relationships?
No.
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
There is no reported case in which an arbitral award rendered in Portugal was recognized and enforced under the New York Convention.
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
Other relevant international sources of law in force in Portugal applicable to the recognition and enforcement of foreign arbitral awards are: (i) the ICSID Convention; and (ii) bilateral treaties on judicial cooperation entered into with Angola, Cape Verde, Guinea-Bissau, Mozambique and São Tomé e Príncipe.
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
N/A.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Since the entry into force of the LVA, jurisdiction over the recognition and enforcement of foreign arbitral awards lies (i) with the Court of Appeal of the judicial district of the domicile of the party against whom the award is to be enforced, or, (ii) for disputes which are subject to the jurisdiction of the administrative courts, with the Central Administrative Court of the judicial circuit of the domicile of the party against whom the award is to be enforced.
(Source: LVA, Art. 59(1)(h) and (2).)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
Portuguese courts accept jurisdiction over the recognition and the enforcement of foreign awards whenever the party against whom the award is to be enforced is domiciled in Portugal. If that party is not domiciled in Portugal but has assets located in this country, Portuguese courts will also accept jurisdiction for the said purpose.
(Source: LVA, Art. 59(1) (h) and (2); CCP, Arts. 86, 89(3), 90.)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
Inter partes proceedings.
(Source: LVA, Arts. 57, 58.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
In Portugal, an ordinary appeal to a higher court may be lodged against the first decision granting or denying recognition and enforcement of a foreign arbitral award, insofar as the value of the proceedings exceeds €30.000.
(Source: LVA, Art. 59(8); CCP, Art. 629(1); Code of Procedure in Administrative Courts, Art. 142(1); Law on the Organization of the Judicial System, approved by Law no. 62/2013, 26 Aug. 2013 (last amended by Decree-Law no. 110/2018, of 10 Dec. 2018), Arts. 42(2), 44(1); Statute of Administrative and Fiscal Courts, approved by Law no. 13/2002, 19 Feb. 2002 (last amended by Decree-Law no. 214-G/2015, of 2 Oct. 2015), Art. 6(4).)
(b) How many levels of appeal or recourse are available against this decision?
According to the LVA, one level of ordinary appeal is available against decisions granting or denying recognition and enforcement of a foreign arbitral award. If the recognition/ enforcement decision was rendered by a Court of Appeal, the appeal is to be filed with the Supreme Court of Justice. If it was rendered by a Central Administrative Court, the appeal is to be filed with the Supreme Administrative Court.
(Source: LVA, Art. 59(8); Law on the Organization of the Judicial System, Art. 42(2); Statute of Administrative and Fiscal Courts, Art. 24(1)(g).)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
Execution against assets is possible only after the competent Court of Appeal or Central Administrative Court, as the case may be, has rendered its decision granting recognition. If an appeal is lodged against a decision of the Central Administrative Court, its execution is suspended but, in limited circumstances, execution may be allowed if requested by the party seeking recognition and enforcement of the award.
(Source: LVA, Art. 55; CCP, Art. 706(1); Code of Procedure in Administrative Courts, Art. 143.)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The arbitral award and the arbitration agreement must be supplied.
(Source: New York Convention, Art. IV(1); LVA, Art. 57(1).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The full award and arbitration agreement should be provided.
(c) Are originals or duly certified copies required?
Duly certified copies of both the award and the arbitration agreement are sufficient.
(d) How many originals or duly certified copies are required?
As a rule, the original and a copy are required. More copies are required if the award is to be enforced against two or more persons with separate residence or domicile.
(Source: CCP, Art. 148.)
(e) Does the authority or court keep the originals that are filed?
After the court decision has become res judicata, documents submitted to it may be returned to the applicant upon request.
(Source: CCP, Art. 442(4).)
13.
(a) Is it necessary to provide a translation of the documents supplied?
Insofar as the documents supplied are not drafted in Portuguese, a certified translation thereof must be provided by the applicant.
(Source: New York Convention, Art. IV(2); LVA, Art. 57(1).)
(b) If yes, into what language?
Portuguese.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Translations must be certified by an official or sworn translator or by a diplomatic or consular agent.
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
Full translations of the award and the arbitration agreement should be provided by the party requesting recognition and enforcement.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
Portuguese courts may stay recognition proceedings pending the outcome of an application to set aside or suspend the award.
(Source: New York Convention, Art. VI; LVA, Art. 56(2).)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
Generally, Portuguese courts may suspend proceedings when the settlement of the dispute depends on the outcome of another case or when another justified reason occurs. Parties may also agree upon the suspension of proceedings for a period not exceeding three months.
(Source: Art. 272(1) and (4) of the CCP.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
The court may, at the request of the party seeking enforcement of the award, order the other party to provide suitable security.
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Documents filed in legal proceedings for recognition and enforcement form part of the public record. Nevertheless, access thereto may be limited whenever their disclosure may harm the dignity of persons, their privacy or public morals, or jeopardize the enforcement of the decision to be rendered. By virtue of the new Code of Industrial Property (hereafter ‘CIP’), approved by Decree-Law no. 110/2018 of 10 Dec. 2018 that transposed Directive (EU) no. 2016/943 on the protection of trade secrets, these must be preserved in the course of legal proceedings in the terms set out in that Code.
(Source: CCP, Arts. 163 and 164; Directive (EU) no. 2016/943, of 8 June 2016, on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, Art. 9; CIP, Art. 352.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
There are in principle no oral hearings in recognition and enforcement proceedings.
(Source: LVA, Art. 57(2-4).)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Judgments on recognition proceedings are usually made available in the Ministry of Justice online database (http://www.dgsi.pt). Personal data protection rules in force in Portugal, as interpreted by the National Commission on Data Protection, require that names of parties and witnesses be omitted when court decisions are made available to the public on the database.
(Source: Law no. 67/98 of 26 October 1998 on the protection of personal data, as amended by Law no. 103/2015, 24 Aug. 2015; Regulation (EU) no. 2016/679, of the European Parliament and the Council, of 27 April 2016 (General Data Protection Regulation), applicable in Portugal since 25 May 2018.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
A party may obtain recognition and enforcement of a partial foreign award on the merits, as long as it is final. According to the LVA, a party may also obtain recognition and enforcement of interim measures issued by arbitral tribunals, in which case their recognition and enforcement in Portugal are governed by the LVA and not by the New York Convention.
(Source: LVA, Arts. 27, 28.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
There is no restriction in Portuguese law to a party obtaining recognition and enforcement of non-monetary relief ordered by foreign arbitral awards. In the case of non-compliance with the terms of an award ordering a party to perform or not to perform within a certain time-limit, damages or a penalty may be ordered against the non-performing party.
(Source: CCP, Art. 868(1).)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
A partial recognition and enforcement of the relief granted by a foreign arbitral award is conceivable under Portuguese law, if a ground of non-recognition and enforcement (e.g. public policy) only affects part of that award and this part is clearly autonomous from the rest of the award (e.g. interest).
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
If a foreign arbitral award has been set aside by an authority of the country in which, or under the law of which, it was made, its recognition and enforcement in Portugal may be refused. There are, however, no reported cases in Portugal in which a court recognized and enforced a foreign arbitral award set aside by a competent authority under the New York Convention.
(Source: New York Convention, Art. V(1)(e); LVA, Art. 56(1)(v).)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
Country Rapporteur: Dário Moura Vicente