Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice)
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Portugal / 14 March 2017 / Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) / N/A / 103/13.1YRLSB.S1
Country Portugal Court Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) Date 14 March 2017 Parties N/A Case number 103/13.1YRLSB.S1 Applicable NYC Provisions V | V(2) | V(2)(b) Source Registry of the Court
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3840&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) Date 23 October 2014 Case number 1036/12.4YRLSB.S1 Applicable NYC Provisions I | I(1) | I(3) | V | V(2) | V(2)(b) Source Registry of the Court
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6074&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) Date 25 February 2014 Case number 29/13.9YRPRT Applicable NYC Provisions I | III Source Registry of the Court
Languages English Summary Summary in preparation reverses : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1653&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) Date 18 February 2014 Case number 1630/06.2YRCBR.C2.S1 Applicable NYC Provisions V | V(1) | V(1)(a) Source Registry of the Court
Languages English Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1651&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) Date 19 March 2009 Case number 299/09 Applicable NYC Provisions III Source Registry of the Court
Languages English Summary Company S (a Belgian company) obtained a favourable award against Company P in an arbitration in Zurich under the rules of the International Chamber of Commerce. Company S subsequently sought to enforce the award before the Juízo Cível de Lisboa (Lisbon Court of First Instance). Company P opposed enforcement on the ground that the award had not been previously recognised in Portugal pursuant to the Portuguese Code of Civil Procedure. The Juízo Cível de Lisboa decided in favour of Company P and denied enforcement of the award. This decision was subsequently upheld by the Tribunal da Relação de Lisboa (Lisbon Court of Appeal). Company S filed an appeal with the Supremo Tribunal de Justiça (Supreme Court of Justice). The Supremo Tribunal de Justiça granted enforcement of the award. It noted that pursuant to Article III NYC, Portugal recognises and enforces arbitral awards rendered in another Contracting State pursuant to the applicable rules found in Portuguese domestic law. It further noted that the arbitral award dealt with rights of a private nature and was issued by an arbitral tribunal seated in a Contracting State. The Supremo Tribunal de Justiça therefore held that, given the above and in light of the “principle of equivalence”, the status accorded to a domestic arbitral award should also be accorded to a foreign arbitral award, thereby making it unnecessary for a foreign award to be reviewed and confirmed. It analysed the first sentence of Article III and noted that while it showed deference to the procedural rules of the enforcing jurisdiction, it should nonetheless be considered in conjunction with the second sentence of Article III NYC which provides that such procedural rules should not impose substantially more onerous conditions or charges on the recognition or enforcement of arbitral awards to which the NYC applies than are imposed on domestic arbitral awards. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1570&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) Date 02 February 2006 Case number 05B3766 Applicable NYC Provisions V | V(1) | V(1)(b) | V(2) | V(2)(b) Source Registry of the Court
Languages English Summary Company A (a Swiss Company) and Company B (a Portuguese company) entered into two sales agreements providing for arbitration in London in accordance with the SHALTA rules of arbitration. A dispute arose between the parties and Company A sent a letter to Company B in which (i) it indicated its intention to submit the dispute to arbitration and (ii) it nominated its arbitrator. In the same letter, Company A requested that Company B nominate its arbitrator, stating that, if it did not do so, an arbitrator would be appointed on its behalf in accordance with the SHALTA rules of arbitration. As Company B did not appoint an arbitrator, the SHALTA appointed one for it. Company B did not participate in the arbitral proceedings and was subsequently notified by mail of two arbitral awards rendered against it. Company A sought and was granted recognition of the awards before the Tribunal Judicial de Felgueiras (Felgueiras Court of First Instance). Company B subsequently appealed to the Tribunal da Relação de Guimarães (Guimarães Court of Appeal) which confirmed recognition of the arbitral awards and dismissed the appeal. Company B then filed an appeal with the Supremo Tribunal de Justiça (Supreme Court of Justice) on the grounds that the arbitration proceedings had violated the principles of due process and right of defence contained in Article V(1)(b) NYC. Specifically, Company B alleged that it had not been properly notified of the arbitration by registered mail with acknowledgement of receipt and that the notification letter, written in English, did not include translations of the documents. This, Company B argued, prevented it from appointing its arbitrator and from being informed of the appointment of its arbitrator under the SHALTA arbitration rules. The Supremo Tribunal de Justiça upheld the decision of the lower courts, thereby confirming recognition of the arbitral award. It noted that, pursuant to Article V(1)(b) NYC, the recognition and enforcement of an arbitral award will only be denied if the party resisting recognition and enforcement provides the competent tribunal in the forum state with proof that it was not properly notified of the proceedings and that there was no other way it could have learnt of them, thereby denying that party the possibility of presenting its defence. The Supremo Tribunal de Justiça further noted that (i) notification of the proceedings must be interpreted pursuant to the law of the arbitral procedure and not pursuant to the Portuguese Code of Civil Procedure and (ii) Company B had been informed by the arbitral body of the proceedings and of the appointment of its arbitrator by fax and registered mail to its official address. The Supremo Tribunal de Justiça therefore held that Company B had been properly notified and that there was no violation of due process. On the argument that the award violated public policy pursuant to Article V(2)(b) NYC, the Supremo Tribunal de Justiça noted that the recognition or enforcement of an award may be denied if the award is contrary to the international public policy of Portugal, which consists of a set of fundamental principles such as pacta sunt servanda. The Supremo Tribunal de Justiça held that there was no principle of public policy requiring that notification of arbitral proceedings be made by registered mail with acknowledgement of receipt, nor that notification be in the national language of the party being notified, especially considering that the notifications had been written in English, the language of the contracts and of the arbitration, as per the parties’ choice. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1572&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) Date 22 April 2004 Case number 04B705 Applicable NYC Provisions II | III | IV Source Registry of the Court
Languages English Summary Company A initiated arbitration proceedings in Zurich against Company B under the rules of the International Chamber of Commerce (“ICC”). The arbitral tribunal dismissed Company A as a party to the proceedings because it had not signed the agreement or agreed to the arbitration clause. The arbitral tribunal subsequently ordered Company B to pay Company A’s legal costs and other expenses. Company A sought and was granted recognition of the arbitral award before the Tribunal da Relação de Lisboa (Lisbon Court of Appeal). Company B filed an appeal with the Supremo Tribunal de Justiça (Supreme Court of Justice) which reversed the decision and remanded the case to the Tribunal da Relação de Lisboa. Upon second review, the Tribunal da Relação de Lisboa ruled that in light of the procedures set out in the NYC, it did not have jurisdiction over the recognition procedure. Company A then filed a second appeal with the Supremo Tribunal de Justiça on the ground that the Tribunal da Relação de Lisboa had erred in its decision because the NYC did not apply to its dispute with Company B. In particular, Company A argued that it was not a party to the original agreement between Company B and Company C as required by Article II NYC and that it only intervened in the arbitral proceedings to successfully demonstrate that the arbitral tribunal lacked jurisdiction over it. As such, Company A argued that it was unable to satisfy the essential requirement of Article IV(b) NYC. The Supremo Tribunal de Justiça upheld the decision of the Tribunal da Relação de Lisboa denying recognition of the award. The Supremo Tribunal de Justiça noted that the determination of the court with jurisdiction to recognise a foreign decision will depend on whether a state court, on the one hand, or an arbitral tribunal or a permanent arbitral institution, on the other, has rendered the decision. The Supremo Tribunal de Justiça held that since the award was rendered under the auspices of the ICC, and in light of the “principle of equivalence” under Article III NYC, the Tribunal Judicial de Lisboa (Lisbon Court of First Instance) had jurisdiction over the recognition of the award. As regards Company A’s argument that it was unable to satisfy the Article IV NYC requirement because it was not a party to the original arbitration agreement, the Supremo Tribunal de Justiça held that although Article IV NYC establishes a requirement that Company A cannot satisfy, it does not fall to Company A to simply select the tribunal that would result in the most favourable outcome without first establishing that said tribunal has jurisdiction over its claim. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1573&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) Date 09 October 2003 Case number 03B1604 Applicable NYC Provisions V | V(1) | V(1)(b) | V(2) | V(2)(b) Source Registry of the Court
Languages English Summary Company A (a Dutch company) and Group B (a group of four Portuguese companies) entered into two agreements on 14 April 1992. Each agreement contained an arbitration clause providing that all disputes arising from the agreement would be submitted to arbitration under the Rules of the Netherlands Arbitration Institute. A dispute arose between the parties and, on 11 December 1992, Company A filed a Request for Arbitration. Subsequently, Group B filed a counterclaim. Upon being notified to pay NLG 30,000 as an advance on costs for its counterclaim, Group B informed the arbitral tribunal that its financial situation prevented it from making such an advance payment. The arbitral tribunal withdrew Group B’s counterclaim from consideration and proceeded with the hearings in Group B’s absence. The arbitral tribunal issued two awards, both of which were in favour of Company A. Company A sought recognition of the awards in Portugal. After an interlocutory appeal concerning its jurisdiction over the motion, the Juízo Cível do Porto (Porto Court of First Instance) granted Company A’s request for recognition of the awards. Group B then appealed to the Tribunal da Relação do Porto (Porto Court of Appeal), which affirmed the decision of the Juízo Cível do Porto. Group B then filed an appeal with the Supremo Tribunal de Justiça (Supreme Court of Justice) on the grounds that the arbitral tribunal's decision to dismiss its counterclaim violated its rights and interests. Specifically, Group B maintained that (i) the arbitral tribunal refused to hear its counterclaim unless it made an advance payment on costs, (ii) it was financially unable to make such an advance payment, and (iii) it failed to appear at the hearing because it was insolvent. Group B contended that the arbitral award violated its right to participate in the procedure and to present its defence, and that, as a result, the arbitral tribunal violated Portuguese public policy under Article V(2)(b) NYC and the Portuguese Code of Civil procedure. The Supremo Tribunal de Justiça affirmed the decision of the Tribunal da Relação do Porto, thereby confirming the recognition of the awards. The Supremo Tribunal de Justiça noted that, under the NYC, the recognition and enforcement of an arbitral award rendered in the territory of one Contracting State may only be denied in the territory of another Contracting State when Article V NYC so provides, and, specifically in what concerns this case, when the award is contrary to the public policy of the state where recognition is sought. As regards whether the award violated public policy, the Supremo Tribunal de Justiça held that the applicable standard is international public policy, which refers to fundamental principles governing Portugal’s presence in the international community, such as pacta sunt servanda and access to justice. It went on to state that there was no international public policy principle that overcomes the insufficiency of means for entities that, by their very definition, exist to make a profit and whose viability depends exclusively on their own financial livelihood. Finally, the Supremo Tribunal de Justiça found that Group B had the opportunity to present its case before the arbitral tribunal and therefore the arbitral procedure was not in violation of Portugal’s international public policy. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1569&opac_view=6 Attachment (1)
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