Portugal / 22 April 2004 / Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice) / 04B705
|Portugal, Supremo Tribunal de Justiça (Supreme Court of Justice)
|22 April 2004
|Applicable NYC Provisions
|II | III | IV
Registry of the Court
|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.
Adobe Acrobat PDF