Litigation & ADR annual report
Proença de Carvalho say that litigation and ADR is a major growth area for the firm . “ We
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Financial institutions still resist arbitration and seem to feel safer with litigation .
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Miguel de Almada MLGTS
now have seven partners [ in Portugal ] working in this area – a lot of the work relates to financial institutions and includes white collar crime and civil litigation , while there is also litigation relating to insolvency , restructuring and real estate , as well as international arbitration .”
There was an “ explosion of civil litigation ” in 2016 , according to MLGTS partner Miguel de Almada . “ The BES issue has shaken the market , and companies , investments and projects have been affected and there are more disputes ,” he says . “ There has been steady growth in alternative dispute resolution ( ADR ) work , though financial institutions still resist arbitration and seem to feel safer with litigation .” Nuno Pena , partner at CMS Rui Pena & Arnaut says financial institutions often refuse to enter into arbitration because of the issue of transparency . He adds : “ There is a concern that the public will see it as things being cooked behind closed doors .” However , Linklaters counsel Ricardo Guimarães says clients are increasingly using ADR because some court cases are “ still taking too long and clients do not wish to perpetuate their disputes ”.
There has been an increase in professional liability disputes relating to company directors and officers , but also in relation to other professions such as doctors , lawyers and engineers , says Maria José de Tavares , partner at SRS Advogados . She adds : “ We are also advising on an increasing
number of disputes between companies – in the pharmaceutical , oil , and telecoms sectors – related to indemnity claims connected to the violation of competition laws . Abreu Advogados partner Natália Garcia Alves says there has been a rise in professional liability cases involving doctors and hospitals . Meanwhile , Pena says the EU Directive on Antitrust Damages Actions will present opportunities for lawyers .
The resolution of the Portuguese bank Banif will result in litigation , according to Líbano Monteiro . He adds that there will also be disputes involving nonperforming loans . In addition , Libano Monteiro says there will be telecoms-related disputes , while there has also been a significant increase in class actions and mass litigation related to pollution and the environment .
Investing in litigation Law firms are investing a lot in their litigation departments , says Guimarães . “ Firms ’ litigation and arbitration departments have bigger workloads and therefore need bigger and more specialised teams to handle these matters ,” he adds . Guimarães says there are more professional negligence cases and this is a trend that is likely to grow . He also says that , with regard to compliance , there is growing demand for legal advice because of stricter regulations . In addition , the “ Brexit effect ” could also lead to more litigation and arbitration work , according to Guimarães .
Fees are going up , according to one partner at a leading firm in Lisbon . “ Fees are not as problematic ,” he says . “ Clients are
Portugal : How are clients ´ demands changing with regard to litigation and ADR ?
“ Fast solutions and fixed costs – a great challenge for us that implies a reinvention of our structures and methods .” André Navarro de Noronha , partner , Telles de Abreu e Associados
“ Clients are increasingly demanding certainty regarding the outcome of a lawsuit , civil or criminal , and lawyers need to be clearer and more aware of the opinions they convey to clients . Justice in Portugal is increasingly expensive and clients more than ever are asking for more economical solutions , which leads to alternative dispute resolution proceedings .” Marta Duarte , associate CCA Ontier
“ Clients are looking for better , more efficient and faster advice . One of the most interesting trends is the use of success fees and fee caps , as clients want to be more certain about the legal expenses they will incur . Although lawyers completely understand the financial worries of clients , it is often difficult for the legal team to fix a budget that corresponds to the reality . Pricing is a key factor for clients and that means having a more flexible structure to accommodate such demands .” João Guedes , partner , ABBC
“ Clients need a legal opinion on the chances of success , thus seeking an additional service from law firms in order to not incur costs that do not match the predicted results .” Ana Cláudia Rangel , senior associate , Raposo Bernardo
“ With regard to arbitration of public procurement disputes , clients demand great expertise from the lawyer , since public procurement law is becoming increasingly more complex because of the effectiveness of EU Law ( for example , the three directives on public procurement ).” Nuno de Oliveira Garcia , partner , Nobre Guedes , Mota Soares & Associados
“ Clients seek to avoid court disputes and do everything in their power to find a nonjudicial solution .” Luís Almeida Carneiro , lawyer , Espanha e Associados
42 • IBERIAN LAWYER • January / February 2017 www . iberianlawyer . com