Portugal, Tribunal da Relação de Évora (Evora Court of Appeal)
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Portugal / 05 November 2015 / Portugal, Tribunal da Relação de Évora (Evora Court of Appeal) / N/A / 160/14.3YREVR.01
Country Portugal Court Portugal, Tribunal da Relação de Évora (Evora Court of Appeal) Date 05 November 2015 Parties N/A Case number 160/14.3YREVR.01 Applicable NYC Provisions V | V(1) | V(1)(b) Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3839&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação de Évora (Evora Court of Appeal) Date 05 June 2008 Case number 876/08-3 Applicable NYC Provisions V | V(1) | V(1)(b) Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages English Summary In 2006, Company A brought an action against Companies B and C before the Tribunal Judicial de Tavira (Tavira Court of First Instance) to resolve a dispute arising out of a contract containing an arbitration agreement providing for arbitration in Switzerland. Company A requested an interim freezing injunction over real estate belonging to Companies B and C. The Tribunal Judicial de Tavira granted the injunction. Companies B and C contested the Tribunal Judicial de Tavira’s jurisdiction on the ground that the contract contained an arbitration clause. While the Tribunal Judicial de Tavira referred the parties to arbitration, it affirmed its jurisdiction with regards to the freezing injunction. The decision to refer the parties to arbitration was subsequently confirmed on appeal on 22 October 2007 by the Tribunal da Relação de Évora (Évora Court of Appeal). In order to maintain the freezing injunction, Company A was required to notify Companies B and C of its request for arbitration on 29 October 2007 and within 30 days of the judicial decision, as required by Portuguese law. Company B sought to have the freezing injunction set aside on the ground that the request for arbitration was invalid. The Tribunal Judicial de Tavira upheld the freezing injunction holding that Company A’s request for arbitration was valid under Portuguese law. Company B appealed to the Tribunal da Relação de Évora on the grounds that (i) the Tribunal Judicial de Tavira misapplied Portuguese rules of civil procedure to the request for arbitration and (ii) arbitral proceedings are initiated from the date of receipt of the request for arbitration, not from the date when the notice is sent, and that notification by mail is not valid under Portuguese law. The Tribunal da Relação de Évora upheld the Tribunal Judicial de Tavira’s decision to order the freezing injunction and held that, despite the arbitration being seated in Switzerland, Portuguese law applied to the procedure for granting freezing injunctions. Furthermore, the Tribunal da Relação de Évora held that (i) pursuant to the Portuguese Arbitration Act, arbitral proceedings are initiated when the Claimant sends a request for arbitration and (ii) despite the fact that Article V(1)(b) NYC provides that each party should be given proper notice of the appointment of an arbitrator or of the arbitral proceedings, any alleged failure to comply with such requirements should not be assessed by the court in preliminary proceedings, but by the arbitral tribunal once it is constituted. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1581&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação de Évora (Evora Court of Appeal) Date 31 January 2008 Case number 1141/06-2 Applicable NYC Provisions I | III | V Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages English Summary Company A (a Portuguese company) sought recognition of two arbitral awards rendered against Company B (a Liberian company) before a Tribunal Judicial in Portugal (Court of First Instance). The Tribunal Judicial granted recognition of the award. Company B appealed to the Tribunal da Relação de Évora (Évora Court of Appeal) on the grounds that (i) Article III NYC should be construed as referring to the Portuguese Code of Civil Procedure and, on that basis, the Tribunal da Relação de Lisboa (Lisbon Court of Appeal), not a court of first instance, had jurisdiction over the recognition proceedings and (ii) Company B had not been notified of the recognition request as required by the applicable Portuguese rules of civil procedure, and the recognition proceedings should therefore be declared null. The Tribunal da Relação de Évora confirmed that a Tribunal Judicial had jurisdiction over the recognition of a foreign arbitral award, but declared the recognition proceedings null, as Company B was not properly notified as required by the Portuguese rules of civil procedure. The Tribunal da Relação de Évora noted that pursuant to Article I NYC, the NYC applies to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards is sought and also to arbitral awards not considered as domestic awards in the State where their recognition and enforcement is sought. The Tribunal da Relação de Évora further noted that, pursuant to Article III NYC, a Contracting State where recognition and enforcement is sought shall recognise and enforce an arbitral award pursuant to its domestic rules of civil procedure. It therefore held that the court having jurisdiction over enforcement of foreign arbitral awards is the one having jurisdiction over enforcement of domestic arbitral awards in accordance with Article III NYC and the Portuguese Arbitration Act. On the question whether Company B was properly notified of the recognition proceedings, the Tribunal da Relação de Évora relied on Article III NYC and applied domestic rules governing recognition proceedings. The Tribunal da Relação de Évora found that the notification did not comply with Portuguese requirements and, as a result, Company B was prevented from participating in the recognition proceedings and from raising a defence under Article V(1) NYC. The Tribunal da Relação de Évora therefore held that the recognition proceedings were null. see also : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1579&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação de Évora (Evora Court of Appeal) Date 04 October 2007 Case number 1725/07-2 Applicable NYC Provisions II | II(3) Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages English Summary Companies A, B, and C entered into a preliminary contract for the purchase and sale of real estate. The contract contained an arbitration clause providing for arbitration in Switzerland. A dispute arose between the parties and Company C claimed specific performance of the contract before a Tribunal de Primeira Instância (Court of First Instance). Company A challenged the jurisdiction of the Tribunal de Primeira Instância on the ground that the contract contained an arbitration agreement. The Tribunal de Primeira Instância refused to enforce the arbitration agreement holding that, pursuant to the Portuguese Code of Civil Procedure, Portuguese courts have exclusive jurisdiction over disputes concerning rights in real property. Company A appealed to the Tribunal da Relação de Évora (Évora Court of Appeal) on the grounds that (i) the Tribunal de Primeira Instância should have enforced the arbitration agreement and referred the parties to arbitration unless it found that the arbitration agreement to be manifestly null and void, and (ii) the dispute before the court concerned the parties’ contractual obligations and not rights in real property. The Tribunal da Relação de Évora reversed the decision of the Tribunal de Primeira Instância and found that the Tribunal de Primeira Instância lacked jurisdiction. The Tribunal da Relação de Évora noted that the preliminary contract did not deal with rights in real property, but with a contractual promise of a future purchase and sale, which was capable of settlement by arbitration. The Tribunal da Relação de Évora held that because Switzerland and Portugal are both parties to the NYC, the NYC applied to the dispute. Furthermore, relying on Article II(3) NYC, which mandates courts of Contracting States to refer the parties to arbitration, the Tribunal da Relação de Évora held that pursuant to the principle of Kompetenz-Kompetenz, a national court must defer the decision on the arbitral tribunal’s competence to the arbitral tribunal, such ruling being controlled at the award enforcement stage. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1582&opac_view=6 Attachment (1)
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