This Country Answer reflects the state of the law as of 31 December 2012. Please refer to the explanations in the chapter entitled Preliminary Note.

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 January 1995.

(Source: Aviso 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 has made a reciprocity reservation under the New York Convention. Therefore, domestic rules on recognition and enforcement apply to foreign arbitral awards that have not been made in the territory of another Contracting State.

(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?

In the absence of case law, it is understood that the New York Convention applies only to arbitral awards rendered in arbitrations seated in the territory of another Contracting State, regardless of the actual place where the award was rendered or signed.

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)?

Arts. 27(28, 55(58 and 59(1)(h) and (2) of the New Arbitration Act (NAA) (Statute No. 63/2011 of 14 Dec. 2011, in force as of 15 Mar. 2012); Art. 49(1) of the Code of Civil Procedure (CCP).

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?

No.

(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?

According to case law, the court of first instance where the party against whom the award is to be invoked is domiciled has jurisdiction over the recognition and enforcement (declaration of enforceability) of foreign awards under the New York Convention.

(Sources: cf. Supreme Court of Justice 22 Apr. 2004 (Colectânea de Jurisprudência/Supremo Tribunal de Justiça (2004-II) 50), and 20 June 2006 (Colectânea de Jurisprudência/Supremo Tribunal de Justiça (2006-I) 117), Coimbra Court of Appeal 19 Jan. 2010, Proc. 70/09.6TBCBR.C1 (http://www.dgsi.pt/jtrc.nsf), Évora Court of Appeal 31 Jan. 2008 (Colectânea de Jurisprudência (2008-I) 252), Lisbon Court of Appeal 20 Feb. 1997 (Colectânea de Jurisprudência (1997-I) 135), and Porto Court of Appeal 22 Oct. 1998, Proc. 9730232 (http://www.dgsi.pt/jtrp.nsf), 29 June 1999 (Boletim do Ministério da Justiça 488: 411), 2 Oct. 2001, Proc. 0120965 (http://www.dgsi.pt/jtrp.nsf), 24 Oct. 2002 (Colectânea de Jurisprudência (2002-IV) 186), 26 Oct. 2004, Proc. 0325170 (http://www.dgsi.pt/jtrp.nsf(, 5 May 2005 (Colectânea de Jurisprudência (2005-III) 159), and 21/6/2005 (http://www.dgsi.pt/jtrp.nsf).)

After the entry into force of the NAA, jurisdiction over the recognition and enforcement (declaration of enforceability) of all foreign arbitral awards should lie with the appeal court in the judicial district where the party against whom the award is to be invoked is domiciled, or, in the case of disputes which, according to Portuguese law, are subject to the jurisdiction of the administrative courts, with the central administrative court in the circuit where the party against whom the award is to be invoked is domiciled.

If that party is not domiciled in Portugal, the Lisbon Court of Appeal or the South Central Administrative Court has jurisdiction, as the case may be.

(Sources: NAA, Art. 59(1)(h) and (2); CCP, Arts. 85 to 87; Code of Procedure in the Administrative Courts (CPAC), Art. 22.)

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.)?

The jurisdiction of Portuguese courts over the recognition and declaration of enforceability of foreign awards does not depend on any connecting factors. As for enforcement, jurisdiction is based upon the domicile of the debtor or, if this is not in Portuguese territory, the location of the assets.

(Source: CCP, Arts. 91, 94(3) and 95.)

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision granting recognition or enforcement (declaration of enforceability) is obtained through inter partes proceedings.

(Source: NAA, Arts. 57 and 58.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes.

(b) How many levels of appeal or recourse are available against this decision?

Before the entry into force of the NAA, for foreign awards to which the New York Convention applies, there were two levels of recourse: (i) against the first instance decision to the appeal court and (ii) against the appeal court decision to the Supreme Court of Justice. For foreign awards not subject to the New York Convention, the only available recourse is to the Supreme Court of Justice.

(Source: CCP, Arts. 691 and 1102.)

After the entry into force of the NAA, there should be only one level of recourse available (against the appeal court decision to the Supreme Court of Justice, or against the central administrative court decision to the Supreme Administrative Court). The applicable regime remains somewhat unclear. It appears that the availability of the recourse depends on the amount at stake.

(Sources: NAA, Art. 59(8); CCP, Art. 678(1); CPAC, Art. 142(1).)

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 appeal court or central administrative court, as the case may be, has rendered its decision granting the recognition. If an appeal is made against the central administrative court decision, execution is suspended but, in special circumstances, may be allowed if requested by the respondent.

(Sources: NAA, Art. 55; CCP, Art. 49(1); CPAC, 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 submitted.

(Sources: New York Convention, Art. IV(1); CCP, Art. 1098.)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

It is necessary to provide only the award and the arbitration clause.

(c) Are originals or duly certified copies required?

Duly certified copies are sufficient.

(Source: New York Convention, Art. IV(1).)

(d) How many originals or duly certified copies are required?

As a rule, one original and one copy, or two copies are required. More copies are required if the award is to be invoked against two or more persons not residing together.

(Source: CCP, Art. 152.)

(e) Does the authority or court keep the originals that are filed?

After the final decision, documents submitted to the court may be returned upon request.

(Source: CCP, Art. 542(4).)

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes.

(Sources: New York Convention, Art. IV(2); CCP, Art. 140.)

(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)?

The translation must be certified by an official or sworn translator or by a diplomatic or consular agent.

(Sources: New York Convention, Art. IV(2); NAA, Art. 57(1).)

(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)?

It is necessary to provide a translation of the award and arbitration clause in their entirety.

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?

Yes.

(Sources: New York Convention, Art. VI; Lisbon Court of Appeal 30 June 2011, Proc. 2004/08.6TVLSB-A-7 (http://www.dgsi.pt/jtrl.nsf).)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

None.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

According to Art. VI of the New York Convention, 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?

The documents filed in legal proceedings for recognition and enforcement form part of the public record and no steps would appear possible to preserve their confidentiality.

(Source: CCP, Arts. 167 and 168.)

(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?

The hearings on recognition and enforcement (declaration of enforceability) are public and no steps would appear possible to maintain the confidentiality of the legal proceedings.

(Source: CCP, Art. 656.)

(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)?

Generally, decisions of the appeal courts, central administrative courts, the Supreme Court of Justice and the Supreme Administrative Court are published. In recent years, it has become common practice to remove names of parties from published decisions, although the law does not require confidential information to be removed unless the information contained in a document has been classified as a secret of the Portuguese State by the competent authority.

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 NAA, a party may also obtain recognition and enforcement of interim foreign awards, in which case recognition and enforcement are governed by the NAA provisions and not by the New York Convention.

(Source: NAA, Arts. 27 and 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)?

A party may generally obtain recognition and enforcement of non-monetary relief, including an order requiring a party to deliver property. In the case of a decision ordering the debtor to perform an action that can be performed only by that debtor, if the debtor fails to perform enforcement may consist only in the payment of damages or a compulsory monetary sanction.

(Source: CCP, Arts. 45(2) and 933(1)).

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

A party should be able to obtain recognition and enforcement of only part of the relief granted in a foreign award as long as this relief forms a separable part of the decision.

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?

There is no reported Portuguese case law in this respect. The domestic rules regarding terms and conditions for enforcement of awards are based upon the New York Convention and therefore do not provide any separate grounds for recognizing or enforcing a foreign award that has been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention.

(Source: NAA, 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.)?

No.

Country Rapporteur:

Luís de Lima Pinheiro