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Portugal / 05 March 2020 / Portugal, Tribunal da Relação de Lisboa (Lisbon Court of Appeal) / 415/18.8T8SNT.L1-2
Country Portugal Court Portugal, Tribunal da Relação de Lisboa (Lisbon Court of Appeal) Date 05 March 2020 Case number 415/18.8T8SNT.L1-2 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 Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6070&opac_view=6 Attachment (1)
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Guilherme Santos Silva / Chapter 15: Recognition and Enforcement of Foreign Arbitral Awards / in André Pereira da Fonseca, Dário Manuel Lentz de Moura Vicente, et al. (eds), International Arbitration in Portugal, Kluwer Law International, 2020, pp. 275-296 - 2020
Author(s) Guilherme Santos Silva Source in André Pereira da Fonseca, Dário Manuel Lentz de Moura Vicente, et al. (eds), International Arbitration in Portugal, Kluwer Law International, 2020, pp. 275-296 Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Portugal Worldcat Number Worldcat : 1154779287 
Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6359&opac_view=6
Country Portugal Court Portugal, Tribunal da Relação de Lisboa (Lisbon Court of Appeal) Date 10 October 2019 Case number 1667/18.9YRLSB-B-2 Applicable NYC Provisions VI Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages Portuguese affirms : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6072&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação de Lisboa (Lisbon Court of Appeal) Date 25 March 2019 Case number 1667/18.9YRLSB-B.L1-2 Applicable NYC Provisions V | V(2) | V(2)(b) | VI Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages Portuguese affirmed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6071&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação de Lisboa (Lisbon Court of Appeal) Date 11 December 2018 Case number 2004/08.6TVLSB.L2-7 Applicable NYC Provisions I | III | V | V(1) | V(1)(e) | V(2) | V(2)(a) | V(2)(b) Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6073&opac_view=6 Attachment (1)
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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, Tribunal da Relação de Lisboa (Lisbon Court of Appeal) Date 02 June 2016 Case number 103/13.1YRLSB-2 Applicable NYC Provisions II | II(1) | II(2) | II(3) | V | V(1) | V(1)(a) | V(1)(c) | V(1)(d) | V(2) | V(2)(a) | V(2)(b) | VII | VII(1) | XVI | XVI(1) Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6075&opac_view=6 Attachment (1)
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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, 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, Tribunal da Relação do Porto (Oporto Court of Appeal) Date 30 June 2014 Case number 56/14.9YRPRT Applicable NYC Provisions V Source Registry of the Court
Languages English Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1679&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, Tribunal da Relação de Lisboa (Lisbon Court of Appeal) Date 16 January 2014 Case number 1036/12.4YRLSB-8 Applicable NYC Provisions V | V(2) | V(2)(b) Source Registry of the Court
Languages English Summary Summary in preparation Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1650&opac_view=6 Attachment (1)
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Author(s) Duarte G. Henriques Source 32(4) Revista Română de Arbitraj 29 (2014) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Portugal Worldcat Number Worldcat : 896855833 ISBN 978-3-642-32743-8 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3120&opac_view=6
Country Portugal Court Portugal, Tribunal da Relação do Porto (Oporto Court of Appeal) Date 09 September 2013 Case number 29/13.9YRPRT Applicable NYC Provisions III | V Source Registry of the Court
Languages English Summary Summary in preparation reversed by : Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1652&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação do Porto (Oporto Court of Appeal) Date 09 September 2013 Case number 29/13.9YRPRT Applicable NYC Provisions II | III | V | V(1) | V(2) Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages Portuguese Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=6076&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação de Coimbra (Coimbra Court of Appeal) Date 19 June 2013 Parties Unifac v. Barod Case number 1630/06.2YRCBR.C2 Applicable NYC Provisions V | V(1) | V(1)(a) Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages English Summary Company A and Company B entered into two agreements for the sale of Brazilian yellow soybeans. Both agreements contained an arbitration clause providing for arbitration in London under the Grain and Feed Trade Association (“GAFTA”) Arbitration Rules. A dispute arose and Company A initiated two arbitral proceedings in London in accordance with the GAFTA Arbitration Rules. Company B did not participate in the arbitral proceedings and the two awards were rendered in Company A’s favour. Company B did not appeal any of the arbitral awards. Company A then sought and was granted recognition of both awards before the Tribunal Judicial de Castelo Branco (Castelo Branco Court of First Instance). Company B appealed to the Tribunal da Relação de Coimbra (Coimbra Court of Appeal) on the grounds that (i) arbitration agreements contained in standard form contracts not negotiated by the parties are illegal under Portuguese law and (ii) recognition of the awards should be denied as it was not aware of the content of the arbitration agreement. The Tribunal da Relação de Coimbra reversed the decision of the Tribunal Judicial de Castelo Branco and denied recognition of the arbitral awards. The Tribunal da Relação de Coimbra noted that the arbitration clauses were (i) “standard form clauses” since they were not negotiated by the parties and (ii) unclear given that a normal person could not understand the meaning of expressions or abbreviations such as “FOSFA 22”, “Regulation 125” and “GAFTA” contained therein. The Tribunal da Relação de Coimbra therefore held that the arbitration agreements should be excluded from the main contracts and that the arbitration clauses were invalid. It therefore denied recognition of the arbitral awards pursuant to Article V(1)(a) NYC. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1580&opac_view=6 Attachment (1)
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Author(s) Virginia L Allan ; Sofia Martins Source 4 International Business Law Journal 267 (2013) Subject(s) B. Articles on the recognition and enforcement of arbitral awards in specific countries and regions (including book chapters) Jurisdictions Portugal | Spain Worldcat Number Worldcat : 855881599 ISBN 978-3-642-32743-8 Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=3119&opac_view=6
Country Portugal Court Portugal, Tribunal da Relação de Lisboa (Lisbon Court of Appeal) Date 12 July 2012 Parties Xilam Films v. Lnk-Video S.A Case number 7328/10.0TBOER.L1-1 Applicable NYC Provisions III | V | V(1) | V(1)(d) | V(2) | V(2)(b) 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. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1574&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação de Lisboa (Lisbon Court of Appeal) Date 30 June 2011 Case number 2004/08.6TVLSB-A-7 Applicable NYC Provisions VI Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages English Summary In an arbitration seated in Brazil, the arbitral tribunal rendered an award in favour of A against B. B, the respondent in the arbitral proceedings, sought to set aside the arbitral award in Brazil before the Juízo da Vara Cível de Sao Paulo (Court of First Instance of São Paulo). Pending annulment proceedings, A sought recognition of the arbitral award before the Juízos Cíveis de Lisboa (Lisbon Court of First Instance). The Juízos Cíveis de Lisboa granted B’s request for a stay of the recognition proceedings until the Juízo da Vara Cível de Sao Paulo had ruled upon the annulment of the award pursuant to Article VI NYC. A then requested that the Juízos Cíveis de Lisboa order B to give suitable security alleging that the expected delay caused by the annulment proceedings would result in considerable losses to A. The Juízos Cíveis de Lisboa denied A’s request and A then appealed to the Tribunal da Relação de Lisboa (Lisbon Court of Appeal). The Tribunal da Relação de Lisboa reversed the decision of the Juízos Cíveis de Lisboa and ordered B to deliver suitable security. In so doing, the Tribunal da Relação de Lisboa relied on Article VI NYC, which allows for the suspension of proceedings relating to an award’s recognition and enforcement. The Tribunal da Relação de Lisboa held that (i) the body before which recognition of an arbitral award is sought may, if it considers it proper, and on application of the party claiming enforcement of the award, order the other party to give suitable security, (ii) tribunals had a wide margin of discretion to determine whether to allow for suspension of proceedings, and (iii) given the excessive delay of the annulment proceedings, an order for suitable security to be provided was reasonable. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1576&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação de Lisboa (Lisbon Court of Appeal) Date 08 June 2010 Case number 243/10.9YRLSB-7 Applicable NYC Provisions III Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages English Summary Company T obtained a favourable award in an arbitration in Zurich under the rules of the International Chamber of Commerce. In seeking to enforce the award before the Juízo de Execução de Lisboa (Lisbon Court of Enforcement), Company T claimed that, under both the NYC and the Portuguese Arbitration Act, the award was immediately and automatically enforceable. The Juízo de Execução de Lisboa denied enforcement of the arbitral award on the ground that the award can only be enforced after having been confirmed and recognised by a competent Portuguese court. Company T appealed to the Tribunal da Relação de Lisboa (Lisbon Court of Appeal) on the grounds that the NYC should prevail over Portuguese procedural law and Article III NYC draws a parallel between foreign arbitral awards and domestic arbitral awards. Specifically, Company T maintained that Article III NYC provides that foreign arbitral awards should face no more onerous conditions for recognition and enforcement than domestic arbitral awards. As such, because there is no requirement that domestic arbitral awards be recognised prior to being enforced, foreign arbitral awards should benefit from the same treatment under the principle of equivalence. The Tribunal da Relação de Lisboa affirmed the decision of the Juízo de Execução de Lisboa, thereby denying enforcement of the arbitral award. The Tribunal da Relação de Lisboa noted that even though the NYC is in force in Portugal, a foreign arbitral award is not automatically enforceable, but must go through a prior process of review and recognition by the competent court. It analysed Articles I and III NYC and held that enforcement and recognition of an arbitral award are different in nature, and, as such, should be resolved by different courts. The Tribunal da Relação de Lisboa further held that while Portugal was committed to ensuring that the enforcement of foreign arbitral awards is carried out in accordance with the NYC, the enforcement of foreign arbitral awards made in another Contracting State is not automatic, and must be carried out pursuant to procedural rules of Portuguese law. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1571&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação de Coimbra (Coimbra Court of Appeal) Date 19 January 2010 Case number 70/09.6TBCBR.C1 Applicable NYC Provisions III 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 Greek company) and Company B (a Portuguese Company) entered into a charterparty containing an arbitration agreement. A dispute arose and the matter was submitted to arbitration in London with English law governing the dispute. On 10 January 2008, an award was rendered in favour of Company A. Shortly thereafter Company A appeared before the Tribunal Judicial de Coimbra (Coimbra Court of First Instance) seeking recognition of the award. Company B opposed recognition on the ground that the Tribunal Judicial de Coimbra lacked jurisdiction to recognise the arbitral award. Company B argued that the Tribunal da Relação de Coimbra (Coimbra Court of Appeal) had jurisdiction over the matter, or, in the alternative, given that the subject-matter of the contract dealt with the chartering of ships, the Tribunal Marítimo de Lisboa (Lisboa Maritime Court of First Instance) had jurisdiction. The Tribunal Judicial de Coimbra dismissed Company B’s arguments and granted recognition of the arbitral award. Company B appealed to the Tribunal da Relação de Coimbra. The Tribunal da Relação de Coimbra upheld the decision of the Tribunal Judicial de Coimbra ruling that the recognition proceedings were properly brought before the Tribunal Judicial de Coimbra. Relying on Article III NYC and the Portuguese Arbitration Act, the Tribunal da Relação de Coimbra held that because the Tribunal Judicial de Coimbra exercises jurisdiction over recognition of domestic arbitral awards, it, and not the Tribunal da Relação or the Tribunal Marítimo de Lisboa, has jurisdiction to recognise foreign arbitral awards. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1578&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, 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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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, Tribunal da Relação do Porto (Oporto Court of Appeal) Date 21 June 2005 Case number 0427126 Applicable NYC Provisions I | II | III | IV Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages English Summary In an arbitration seated in Poland, the arbitral tribunal rendered an award in favour of Company A (a Polish company) against Company B (a Portuguese company). Company A sought recognition of the arbitral award before the Tribunal Judicial da Comarca do Porto (Porto Court of First Instance) pursuant to Articles I, II, and IV NYC. The Tribunal Judicial da Comarca do Porto dismissed Company A’s request for recognition of the award holding that, under the Portuguese Code of Civil Procedure , the Tribunal da Relação do Porto had jurisdiction over such an application. Company A then appealed to the Tribunal da Relação do Porto (Porto Court of Appeal) on the grounds that (i) under the NYC (and contrary to Portuguese civil procedure) it is for the party against whom enforcement is sought to challenge recognition of the arbitral award and that the NYC limits the role of domestic tribunals to assessing the overall validity and enforceability of arbitral awards, (ii) Portuguese provisions dealing with recognition of foreign decisions were not applicable to the recognition and enforcement of the foreign arbitral award in this case because they were incompatible with the recognition procedure established by NYC Article III, and (iii) pursuant to Article III NYC, the court that has jurisdiction over recognition of foreign arbitral awards in Portugal is the court that has jurisdiction over the enforcement of domestic arbitral awards: in this case, the Tribunal Judicial da Comarca do Porto. The Tribunal da Relação do Porto overturned the decision of the Tribunal Judicial da Comarca Porto and held that the Tribunal Judicial da Comarca do Porto had jurisdiction over the recognition of foreign arbitral awards. The Tribunal da Relação do Porto noted that the NYC does not provide guidance as to which domestic tribunal has jurisdiction over the recognition of arbitral awards. It therefore applied the Portuguese Arbitration Act which provides that arbitral decisions rendered by arbitral tribunals seated outside Portugal have the same effect as domestic awards, and concluded that the Tribunal Judicial da Comarca do Porto had jurisdiction over the recognition proceedings. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1575&opac_view=6 Attachment (1)
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Country Portugal Court Portugal, Tribunal da Relação do Porto (Oporto Court of Appeal) Date 26 October 2004 Case number 0325170 Applicable NYC Provisions III Source http://www.dgsi.pt (official website of the Instituto de Gestão Financeira e Equipamentos da Justiça I.P.)
Languages English Summary In an arbitration seated in England, an award was rendered in favour of Company B against Company C. Company B sought the recognition and enforcement of the award before the Tribunal da Relação do Porto (Porto Court of Appeal). At the commencement of the recognition proceedings, the Office of the Prosecutor appeared before Tribunal da Relação do Porto and requested that the proceedings be dismissed on the ground that the Tribunal da Relação do Porto lacked jurisdiction over a request for recognition and enforcement. The Office of the Prosecutor argued that the Tribunal de Primeira Instância de Chaves (Chaves Court of First Instance) had jurisdiction instead. The Tribunal da Relação do Porto granted the Office of the Prosecutor’s request. The Tribunal da Relação do Porto noted that (i) as the award was rendered in England and England was party to the NYC, the NYC applied to the recognition and enforcement procedure and (ii) the only guidance the NYC provided on which domestic court has jurisdiction over recognition proceedings is found in Article III NYC, which provides that there should not be imposed 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. The Tribunal da Relação do Porto held that since Portuguese rules grant courts of first instance jurisdiction over the enforcement of domestic awards, those courts also have jurisdiction over the recognition of foreign arbitral awards. Link to the record https://newyorkconvention1958.org/index.php?lvl=notice_display&id=1583&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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