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
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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