Litigation & ADR Special Report 2014 | Page 7

Litigation & ADR Annual Report at Gold Abogados. “It would be advisable to have some institutions specialised in some sector and/or area of law or to unify different institutions in order to have a unique and prestigious institution.” In Portugal it used to be very common to use adhoc arbitration rather than resort to arbitration centres, explains Fernando Aguilar de Carvalho, Dispute Resolution Partner at Uría Menéndez - Proença de Carvalho. “The prestige and reliability of the arbitration then rested entirely on the prestige and reputation of the arbitrators.” Arbitration centres in Portugal began to gain relevance and importance over time and today the Commercial Arbitration Centre of the Lisbon Commercial Association is probably the best known and reputed. “The challenge is to fight against a tendency to pass arbitral awards of a ‘trying to please both parties’ kind by arbitrators eager to avoid attracting animosity in a legal community where everybody knows everybody,” says António Ribeiro, Commercial Litigation and Arbitration Senior Associate at AAA Advogados Lisbon. Along with costs, availability and reduced number of registered arbitrators, there is an increasing concern about the risk of ‘judicialisation’ of arbitration. The perception is that the process of arbitration has become more regulated, says Sandra Texeira da Silva, Litigation Partner at AVM Advogados, and this appears to be a challenge considering that one of the main feature and advantage of ADR is supposed to be flexibility. Another challenge is the specialisation of the arbitrators, explains Sandra Ferreira Dias, Head of Litigation and ADR at Caiado Guerreiro & Associados. “The Parties want to be sure that the arbitral decision is rendered by arbitrators that understand their business and the specific needs and characteristics of their field of expertise as well as the applicable law and regulations.” Civil strides Portugal is going through an apparent revolution with a new Civil Procedure Code into force since September 2013, and a drastically new judiciary map jointly with a fairly new courts’ management system. Both these reforms intend to put an end to the delays in the Portuguese judicial system and to get economic disputes solved as fast as possible, says António Pinto Leite, Head of Litigation and Arbitration at Morais Leitão, Galvão Teles, Soares da Silva & Associados. “In two years, Portugal will have one of the most competitive judicial systems in Europe, which is an enormous challenge both for judges and lawyers. The key word in Portugal is now ‘management’: both court and case.” Unnecessary bureaucracy and red tape have been a persistent worry in the past years. The basic expected implications of the Code are that litigation becomes simpler, faster and that the increased discretionary powers of the judges are used prudently. “Courts are under strong pressure to speed up decisions on their never-ending pending case list, explains João Macedo Vitorino, a Founding Partner at Macedo Vitorino & Associados, “unfortunately, this is leading to decisions www.iberianlawyer.com that not always are duly pondered.” The premise underlying the Reform are celerity, establishing new terms and consequences for judges and lawyers for disrespect as well as punishing any delaying tactics, flexibility, attributing to the judges the power and discretion to adequate the proceedings to the specificities of the case, and simplification, foreseeing the new CPC a single kind of declarative procedure and abolishing several formalities and obligations, outlines Francisco Colaço, Head of Litigation at Albuquerque & Associados. The new so-called ‘Duty of Management Procedure’ entrusts the judge with the obligation of actively driving the process for a fair and fast resolution, explains João Pimentel, Head of Litigation and ADR at Campos Ferreira Sá Carneiro & Associados, notwithstanding the parties’ procedural duties and burdens. This duty further allows the judge to refuse every initiative that he considers frivolous or dilatory. “Although it is too soon to get conclusions on how the new Code has brought effective changes to the practice of litigation,” says Gonçalo Malheiro, a Partner at pbbr, “it is our opinion that it may be a useful instrument to deal with the current caseload in Portuguese Courts.” At this stage, however, one of the objectives of the approval of a new Portuguese Civil Procedure Code has been achieved, adds Rui Tabarra e Castro, Senior Associate in Dispute Resolution at F. Castelo Branco & Associados – the immediate effect of reducing the number of enforcement proceedings pending in court. Concluding arguments In any market, the consumers choose the product, and base this on price and quality. If these do not become desirable then clients don’t see a reason to change, and arbitration has to make itself more attractive if it wants to be businesses first choice, says Miguel Virgo, Head of International Litigation and Arbitration at Uría Menéndez. “Clients need to be convinced that, on balancing the risks, using arbitration will be worth it in the long-run.” And the reality in Spain is that arbitration has converted itself into a real alternative, says Antonio Hierro, Litigation Partner at Cuatrecasas Gonçalves Pereira, and there are nearly no obstacles to its use. Across Iberia, law firms are expanding their arbitration teams – which is a sure sign of progress, say lawyers. And Portugal’s shake up of its Civil Procedure Code had the clear intention of bringing it in line with the