Case Law
Portugal / 12 July 2012 / Tribunal da Relação de Lisboa / Xilam Films v. Lnk-Video S.A / 7328/10.0TBOER.L1-1
| Country | Portugal |
| Court | Portugal, Tribunal da Relação de Lisboa |
| Applicable NYC Provisions | V | III | V(2)(b) | V(1)(d) |
| Date | 12 July 2012 |
| Case number | 7328/10.0TBOER.L1-1 |
| Source | http://www.dgsi.pt (Official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.) |
| Languages | English |
| Summary | On 31 January 2006, Xilam (a French company) entered into a license agreement with Lnk Videos (a Portuguese company) for the license of a movie in Portugal and several African countries. The license agreement contained an arbitration clause providing that any dispute arising thereunder would be submitted to arbitration under the rules of the Independent Film & Television Alliance. A dispute arose and Xilam initiated arbitration in France. The arbitrator decided in favour of Xilam, ruling that all distribution rights would cease from October 2008. Xilam then successfully sought recognition of the arbitral award before the Tribunal Judicial de Oeiras (Oeiras Court of First Instance). Lnk Videos appealed to the Tribunal da Relação de Lisboa (Lisbon Court of Appeal) on the grounds that (i) the constitution of the arbitral tribunal was not in accordance with the agreement of the parties as required by Article, (ii) under Article III NYC and applicable Portuguese domestic rules, the domestic court with jurisdiction over the recognition proceedings was the Tribunal da Relação de Lisboa and not the Tribunal Judicial de Oeiras, (iii) the lower court applied incorrect Portuguese rules of civil procedure to govern the time limit alluded to in Article V NYC for filing a request to oppose recognition, and (iv) the tribunal awarded penal damages in violation of Portuguese public policy and Article V(2)(b) NYC. The Tribunal da Relação de Lisboa affirmed the decision of the Tribunal Judicial de Oeiras, thereby confirming recognition of the award. The Tribunal da Relação de Lisboa noted that the time limit alluded to in Article V NYC relates to a deadline imposed upon the respondent to meet its burden of proof with respect to the grounds in Article V(1) NYC. It further noted that the tribunal which has jurisdiction over enforcement of foreign arbitral awards is that which has jurisdiction over enforcement of domestic arbitral awards in accordance with Article III NYC, providing that the rules of procedure of the territory where the award is relied upon shall not impose substantially more onerous conditions or higher fees on the recognition or enforcement of arbitral awards to which the NYC applies than are imposed on domestic arbitral awards. The Tribunal da Relação de Lisboa therefore dismissed the argument that Portuguese rules of civil procedure impose an additional condition for the enforcement of foreign arbitral awards dealing with rights of a private nature and ruled that the Tribunal Judicial de Oeiras, and not the Tribunal da Relação de Lisboa, had jurisdiction. The Tribunal da Relação de Lisboa dismissed the argument that the arbitral tribunal had not been constituted in accordance with the agreement of the parties in accordance with the NYC. Finally, as regards the argument that the award violated public policy, the Tribunal da Relação de Lisboa referred to Portuguese law and not the NYC and held that, since penalty clauses are often used in licence agreements and are compatible with Portuguese law, the arbitral award did not violate Portuguese international public policy. |
Attachment
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