A new arbitration law has been enacted for the “Special Administrative Region of Macau”. The new law (Law nr. 19/2019 of November 5, 2019) will enter into force on May 3, 2020 and replaces the Law Decree Nr. 29/96/M of June 11, 1996.
The new law provides for many features of modern arbitration laws (and of the UNICTRAL Model Law), inter alia the following:
- requisites for there to be a valid arbitration agreement (both as to its form, scope and contents),
- negative effects of the arbitration agreement and the “competence-competence” principle,
- preliminary orders and interim measures,
- number, requirements (as to the independence and impartiality, and duty to disclose) and appointment of arbitrators and the “Dutco principle”,
- place and language of the proceedings,
- broad powers of the tribunal as to the conducting of the proceedings with minimal legal rules as to the consequences of non-compliance with the tribunal’s orders, and deliberations of the tribunal,
- powers of the tribunal as to conciliation and appointment of experts,
- final award (form, contents and finality),
- challenge of the arbitral award, recognition and enforcement of foreign arbitral awards (aligned with the New York Convention of 1958).
It is worth noting some peculiar features of the new Arbitration Law:
1. The Law provides a definition of “arbitration” (along with a number of other definitions such as “tribunal”, “emergency arbitrator”, “interim measures”, etc.):
“Arbitration is an alternative means of dispute resolution through an arbitral tribunal, whether or not organised by an arbitral institution”.
As far as I’m aware, this is completely unprecedented, but at the same time it is not innovative at all (and is somehow redundant).
2. On the other hand, it states that the arbitration is subject to the following principles:
- parties’ autonomy
- right to be heard
- equality
- confidentiality
- impartiality and independence
- minimal intervention from state courts
- swiftness and efficiency, and
- informality and simplicity.
The last two principles are quite interesting. In fact,
“the arbitral tribunal shall conduct the proceedings in an informal and simplified manner, in a way that best serves the interests of the parties and that best adapts to the circumstances of the dispute, without prejudice to the imperative rules of this law” ( principles of informality and simplicity).
Further,
“the arbitral tribunal shall conduct the proceedings in a swift, dynamic, efficient and inexpensive fashion, assuring the parties’ procedural guaranties and the imperative rules of this law” (principles of swiftness and efficiency).
3. Lastly, the new law provides for some interpretation rules. The most interesting rule is that the law must be interpreted taking into account the UNCITRAL Model Law for International Commercial Arbitration (2006 version).
Victoria Associates – International Disputes
Victoria Associates specialises in international arbitration. Victoria Associates assists and represents clients in international and domestic arbitrations in Portugal, Brazil and other Portuguese speaking countries, including Macau. Victoria Associates members act as expert witnesses on the law of these countries, and support non-Portuguese law firms acting in arbitrations relating to these countries.
For further information, please get in touch with Duarte Henriques.
*A dual Portuguese-Chinese version of the new arbitration law can be found HERE.
