Tag: Arbitration Portugal

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Why Arbitrate in Portugal? Reason 1: Geography

International Arbitration & Portugal’s Geography

An alluring and advantageous jurisdiction

Over the past few years Portugal has been quickly expanding in a number of areas without showing signs of its growth slowing down anytime soon. However, one key area in which Portugal may be overlooked is in regards to being selected as a jurisdiction for international arbitration. Portugal acts as a judicious platform for the resolution of disputes relating to arbitration for a number of reasons, with geography being at the top of the list.

Situated an ocean away from North and South America, and within close proximity to Africa and the rest of Europe, Portugal is a central hub for many who come from across the globe. When considering international arbitration between two countries separated by an ocean, such as Brazil and Angola for example, Lisbon may be considered, not only a fair and neutral jurisdiction, but more importantly a convenient location for both travelling parties.

The After-Brexit: Lisbon as an alternative seat to London

Also, with the ongoing controversy and uncertainty surrounding Brexit, Lisbon may be a sound geographical alternative for international arbitration. Not only is Lisbon a short flight away from London, the political atmosphere has been generally tranquil with no signs of leaving the EU anytime soon.

The Lusophonic legal world and Portugal’s Geography

The Lusophonic world is a vast one, where to this day, strong ties still exist amongst them. Alongside geographical considerations, the fact that the judicial systems of these countries are still very much embedded with the present-day Portuguese judicial system helps for the resolution of disputes in a less complicated, and often times in a timelier manner.

Beyond those pertaining to the Lusophonic world, however, there are many advantages in selecting Lisbon for its geography. Due to Portugal’s rapid growth over the past few years, there has been a large increase in the quantity of non-stop flights to Lisbon. Not only is it more convenient to be able to travel from varying parts of the world without having to deal with arduous layovers, but due to the increase in available flights, this has also proven to be oftentimes more cost-effective.

Lisbon has all the conditions necessary to become an attractive host for dispute resolution. Beyond the logistical considerations of the jurisdiction selected where international arbitration disputes are involved, the jurisdiction chosen may have a larger impact than one would initially realize, especially in regards to the terms of applicable procedural laws and enforcement.

Portugal is currently a member among the most important international arbitral conventions, including the 1958 New York Convention, the ICSID Convention, as well as having 60 Bilateral Investment Treaties (BIT’s) signed with other nations.

Geography plays an important role in regards to international dispute resolution due to the fact that the parties negotiating international contracts which contain arbitral clauses must also settle on a neutral place of arbitration. It is usually favorable for both parties involved to select a jurisdiction that is neutral, geographically easy to travel to and with a well developed arbitrational law and court system in place, all of which Portugal has, especially in regards to issues relating to enforcement under the New York Convention being unlikely to arise.

In next week’s blog post, the topic of Portugal as a place of international arbitration and language will be discussed, and not just in regards to the Portuguese language, but to prevalent usage of English within the country as well.

Learn More:

If you would like more information or have any questions regarding international arbitration in Portugal, please send an email to info@victoria.associates

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8 Advantages of Arbitrating Disputes in Portugal

A safe harbour for dispute resolution

Arbitration, in and of itself, has a long-standing history, having been practised by the Greeks and Romans, it is to this day still one of the most sought out methods of dispute resolution. In more recent decades, and alongside globalisation, international arbitration has been vastly growing in popularity for a number of reasons.

It is commonly said that arbitration can be less costly and less time consuming than litigation, especially in terms of international disputes. It is, however, less commonly known that arbitration is also beneficial and comes into play well before a problem may even arise. The decision to use arbitration occurs during the phase of contract negotiation, which also means that the right decisions must also be made from the very beginning in order to take full advantage of this means of dispute resolution.

With the current global climate as it stands, the country, or jurisdiction, one chooses to settle an international arbitration dispute can have heavy implications on the time, outcome, monetary gain, among other important matters. In recent years, Portugal has become an increasingly alluring haven in regards to arbitration dispute resolution.

Below are 8 advantages of choosing Portugal:

1. Geography – situated an ocean away from North and South America, and within close proximity to Africa, and the rest of Europe, Portugal is a central hub for many who come from across the globe. When considering international arbitration between two countries separated by an ocean, such as Brazil and Angola, Portugal may be considered a fair and neutral location.

2. Language – over 250 million people speak the Portuguese language throughout the world and is the 6th most widely spoken language. Portugal also shares a great amount of cultural, economic and legal backgrounds which serve as a common tie between many other countries. Due to this, a large amount of commercial transactions worldwide, deal with Portuguese speaking countries. Recently, Portugal has seen a substantial growth in terms of investment and capital flows, due to larger countries, such as Brazil and Angola viewing Portugal as a safe harbour for their investments.

3. Portuguese Legal Background – the Portuguese Civil Code and Civil Procedure are still in force in Angola. Mozambique, Cape Verde, São Tomé Principe, and Guinea Bissau. These countries very closely follow, to this day, the Portuguese Case Law, meaning that Portuguese law is still very much embedded and relevant within their respective legal systems.

4. Safe and Stable – Portugal is considered to be the safest of all the Portuguese speaking countries. Portuguese people are hospitable and warm by nature. Most Portuguese people speak an intermediate and comprehensive level of English, more so than most of the other European countries, simplifying communication. Due to Portugal being a member of the E.U. this has attracted a high level of foreign investment, especially from other Portuguese speaking countries.

5. Modern Facilities – Portugal is a modern country with many modern infrastructures and facilities. In recent times, Portugal has been considered a spearhead in terms of new technologies and IT solutions. Modern technologies have been also applied to the judicial system. Procedures before state courts are almost entirely managed through web-based platforms. Paperless dockets have been a reality in Portugal for many years now. Arbitration has been benefiting from this new landscape, for example, if one party intends to begin arbitration and needs an interim measure, all that must be done is to file a request via “Citius”, a web-based platform. The request will then arrive at the judge’s desk the following day. This online system works for every arbitration related matter that needs to be dealt with by state courts, with the exception of within courts of appeal and the Supreme Court of Justice.

6. Robust Legal System – Portugal has recently enacted a new arbitration law inspired by Uncitral Model Law. This is a modern law providing for the most in-demand features ranging from the principle of separability of arbitration agreements and the competence of arbitral tribunals to decide on their own competence to the joinder of third parties, as well as the powers that are granted to arbitral tribunals to order interim measures in pending or about to start arbitrations. Arbitral awards in Portugal are final and subject to no appeal. An annulment of the arbitral award may only be granted under very limited and special circumstances. This law also provides for very constricted and limited circumstances under which a foreign arbitral award may be refused recognition and enforcement. Portugal is also a signatory party to the most relevant international treaties related to arbitration, such as the New York Convention and the ICSID Convention. Portugal is also party to around 60 bilateral investment treaties.

7. Supportive State Courts – courts in Portugal consistently adhere to the principle that the arbitral tribunals are competent to decide on their own competency. A number of cases related to swaps show that courts do not hesitate to refer parties to arbitration even in the vent that there exist allegations that these contracts are null for violating public policy. Arbitral tribunals are sufficiently competent to decide on the costs of arbitration, courts will only intervene where excessive situation occur. Arbitral awards are only set aside when there is a violation of public policy or other fundamental principles of arbitration – which is very rare! Internationally accepted standards, such as the IBA Guidelines on conflicts of interests are also applied.

8. Internationally Oriented Community – in Portugal, international standards are applied when dealing with international arbitration cases. International events regularly take place in Portugal and shed new and innovative light on the topic at hand, including the ICC Portugal Arbitration Day, with the second edition having taken place during 2018. Portuguese practitioners also regularly publish articles in English, in order to reach a wider audience. The Portuguese arbitration community is in permanent contact with other communities including the Brazilian, Spanish and French colleagues.

The benefits of choosing Portugal for cases relating to international arbitration resolution go beyond the above-mentioned where the quality and likelihood for a favourable outcome are a high probability.

LEARN MORE

If you would like more information or have any questions regarding international arbitration in Portugal, please send us an email to info@victoria.associates and we will be in touch as soon as is possible.

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We do what we like, and we like what we do

Watch our institutional video

To celebrate the New Year 2020, we released our institutional video.

Victoria Associates represents a new way of doing business. It is designed for the client.

We share the risk with the client.

We offer affordable solutions without compromising the quality of the services that are rendered.

Embark with us!

We do what we like, and we like what we do!
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The New Merchants and cross border Dispute Resolution

Trade has always been the driving force for societal changes. The ones willing to brave into the unknown, navigating wild seas searching for the next opportunity – the merchants – reshaped our cross-border relations, contributing to global development and along this path changing the rule of law as such. 

Based on once upcoming new challenges, a special kind of law emerged, structured upon customs, good practices, and contracts, the lex mercatoria, was a truly global law. Since then, it has been in constant development, sustained by the autonomy of the will, by the agreements which transcends national legal boundaries and local legal systems.

Surely, as any kind of commercial relation, issues might arise, and as such with traditional legal systems, this global rule of law urged for a dispute resolution mechanism. Henceforth, International Arbitration came into the scene, providing a path to fulfill those needs and solve legal disputes, in a state independent way – delivering a decision-making procedure to those fast-paced advances of a truly global law. Later on, with the Pélissier du Besset case, or the Unidroit principles, even the states recognized a new legal order applicable to cross-border demands.

Along this path, the New York convention of 1958 represented a great achievement, where once adamant sovereign states decided to recognize and accept Arbitration decisions, even enforcing arbitral awards inside their borders – becoming a key instrument for international arbitration. Contracts and Arbitrations are and always will be deeply connected, as part of an autopoietic – state independent – legal system.

Nonetheless, society continued to change, and as such a mirror held up against life, law also changed and adjusted itself to the new reality.

We are living on an algorithm and data-driven world, on a place where international contracts are established a “click” away. Whether purchasing something on eBay or “buying” copyrights on YouTube, our instruments to develop global business became substantially more dynamic and complex (yet simple). Platforms as such eBay are bringing to international commercial contracts, foreign exchange agreements, global payments schemas, and to supply chain conditions, the simplicity of “button push” (or a declaration of “I Consent”).

Most likely traditional state law is no longer able to frame and embrace those advances, providing a satisfactory and efficient dispute resolution system. Thus, international institutional or ad hoc disputes resolution mechanism are taking back the stand, providing a newly reinterpreted simplified commercial arbitration, providing the means to solve those “complex” commercial matters under eBay’s Dispute resolution system, or intellectual property disputes at YouTube’s “Content ID” dispute system, as simple examples.

We are the new merchants, now navigating through the wild and unknown seas of technology. As such, our legal needs are being adjusted to and by disruptive technologies, and new solutions are needed in order to provide us the tools to do business on this cosmopolitan, connected and global legal society. Those are simple examples and daily situations, but what about the complex corporate ones?

Victoria Associates has been forged inside this context. Created by and from the global context and aligning different minds from various expertise and legal systems.

Our highly innovative and experienced professionals are a joint global effort to provide your business with the vessel necessary to navigate into the tortuous and complex waters of global dispute resolution, providing the tools and the knowledge to solve the most complex disputes that might arise in your quest for profit beyond state borders. Born in the land of the great explorers, we can guide you through the toughest disputes.

Please contact us if you have any question – info@victoria.associates

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A new Arbitration Law for Macau

New Law Macau

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.

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The Seat of Arbitration

Seat of Arbitration

For those who aren’t familiar with international arbitration, the concept of the seat of arbitration is complicated and even unintuitive, yet it is indispensable.

The choice of the seat of arbitration can influence the arbitration proceedings in different ways. Some examples include:

  • The New York Convention – an arbitration award made in a contracting state of the New York Convention is enforceable in other contracting states. Currently, the Convention has 160 contracting states. Needless to say, it will be foolish to choose a seat which is not a contracting state of the Convention.
  • Parties are afforded a high degree of autonomy in international arbitration – they can choose the language, arbitrators, the procedural law, they can even limit the scope of appeal to an award. However, such autonomy is not absolute. It is bound by the mandatory law of the arbitral seat.
  • Courts of the seat of arbitration can aide or intervene in arbitration proceedings. It can assist in formation of the arbitration tribunal, forcing document production, restraining another party from commencing court proceedings in another jurisdiction.
  • Courts of the seat of arbitration is exclusively competent to set aside the award. Once an award has been annulled by the courts of the seat, its enforcement in other jurisdictions would become difficult. Some jurisdictions may not be willing to enforce awards which have been annulled and some may be differential to the findings of the courts of the seat.

It goes without saying that the evaluation of the choice of the seat in an arbitration clause should be taken vigorously. A jurisdiction with well drafted arbitration legislation is far from enough to guarantee its status as a preferred seat. The availability of legal expertise in the jurisdiction and of the court is equally important as the arbitration legislation.

Generally, the courts of more sophisticated seats are less inclined to intervene in arbitration proceedings.  Currently, some of the most popular seats include Geneva, Hong Kong, London, New York, Paris and Singapore.

A note of caution – it is recommended the seat of arbitration should always be clearly specified in the arbitration clause. The major arbitration institutions such as the International Chamber of Commerce (ICC), the London International Court of Arbitration (LCIA) have sample arbitration clauses available on their websites. If a contract consists of more than one documents, special care should be taken to ensure that proper and consistent references of the arbitration clause (and also the governing law for the underlying contract) are made in each document. Inconsistent references of the seat of arbitration are invitation to unnecessary legal hiccup! 

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Maximizing the use of experts in international arbitration

International arbitration is a melting pot in which the mix of different legal cultures is not always very homogeneous.  Large Anglo-Saxon law firms—Big Law—still enjoy a dominant position in the international arbitration market.  And this dominance is such that certain procedural practices typically used by litigators in common law jurisdictions have permeated and are now mainstream in international arbitration.  Party-appointed quantum experts, for instance, are nowadays ubiquitous in the adjudication of international disputes.  This practice, however, is not immune from criticism even in cases in which the presence of partisan experts may be warranted to help the tribunals award just compensation.

Arbitration users in continental Europe and Latin America are often concerned that the financial dependence of the experts on the party that appoints them could be the cause of the frequent and extreme gap that separates opposing quantum testimonies.  Other critics highlight the fact that the experts’ excessive partisanship, when coupled with the tribunals’ struggle—or failure—to assess expert testimony, could entail a high risk of unfair adjudication that frequently results in awards that do not adopt the experts’ recommendations and simply “split the baby.”  Thus, for reasons of fairness, cost, and efficiency, many of the critical voices advocate in favor of using neutral tribunal-appointed experts over partisan experts.

Research on the role of quantum experts in investment arbitration shows that the proposal to prefer neutral experts over party-appointed experts largely misses the point because while the latter appear in the quantum phase of every award examined, the former are rarely used, if at all.  Serious empirical studies also show that quantum experts are developing a sort of “repeat-players’ game” in which a few individuals, associated with even fewer firms, concentrate all of the appointments.  Interestingly, the data available from investment arbitration cases shows that the experts, irrespective of their repeat-player status, seldom manage to dictate the awards’ monetary outcomes.  In fact, the tribunals that hear investment cases award damages in a very conservative manner—less rather than more—and only rarely “split the baby.”  

While experts have little to gain from exaggerating their clients’ claims and the lawyers from encouraging such type of behavior, the so-called “battle of the experts” persists in more recent cases.  At the same time, the fees payable to the experts remain a very significant portion of the clients’ bill.

Our guiding principle at Victoria Associates is to accomplish our clients’ goals in every case and to do so at the lowest possible cost.  One way in which our lawyers honor this principle is by relying on a wealth of collective knowledge and experience navigating the procedural complexities of past cases to tailor successful strategies for the efficient use of quantum experts in future cases.  Our lawyers are knowledgeable about damages issues and will do a significant portion of the groundwork that larger firms typically entrust to the experts. 

This allows Victoria Associates to provide better legal advice to the client and better instructions to the experts with whom we work.  In the aggregate, this approach ensures that the quantum phase of an arbitration is conducted in a manner that maximizes the role of the experts we appoint and increases the overall chances of success for our clients.

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Reshaping International Arbitration


A Contribution for the Improvement of Efficiency in IDR


(A work in progress)


International Arbitration has become too costly, time consuming and, therefore, inefficient. Parties from different parts of the world insist in bringing their own legal practices and traditions to arbitration. More undesirably than not, some bring their own guerrilla apparatus, ranging from raising challenges against one or more arbitrators to request lengthy and costly evidentiary production like discovery or full-fledged cross-examination of witnesses.

It is true that there is significant and fundamental progress in International Arbitration. For instance, the use of technology now allows tribunals to hold hearings remotely from virtually anywhere in the globe, and the electronic filing of motions can dispense with the telefax. However, the technological revolution has not been accompanied by procedural efficiency and swiftness in the decision-making process. Instead of a streamlined mechanism, arbitration proceedings are increasingly subject to regulation and to an undesired level of standardisation that doesn’t necessarily bring more predictability. It may also be said that, to some extent, some pieces of soft law have allowed parties to replicate in arbitration the procedures they are familiar with in state courts. The use of evidence production, and more particularly discovery (combined with “e-discovery”), by US law firms elicits this idea.

Definitely, arbitration is not what it used to be.

International Arbitration is not what it used to be

So why not take a step back whilst also keeping the positive improvements?

To do that, one needs to look at the early days of arbitration and ask what was it that made it become so popular in the first place. Why did parties started resorting to arbitration instead of going to state courts?

There are a few reasons related to the legal framework that contributed to such popularity, in particular the New York Convention on the Recognition and Enforcement of Arbitral Awards of 1958, and the UNCITRAL Model Law that made arbitration national laws seemingly similar among themselves.

However, the main reasons that led parties to opt for arbitration can be summarised in a few features:

  • Swiftness, thus reduced time and costs;
  • Flexibility of the proceedings;
  • Confidentiality;
  • Neutrality of the seat;
  • Neutrality and / or expertise of the decision-makers appointed by the parties;
  • Finality of the award.

The proceedings must of course comply with a few indispensable principles, namely:

  • The right to properly present the case;
  • Equality of arms;
  • Independence and impartiality of the decision maker.

Therefore, my notion of reshaping arbitration is to go back to a proceeding where those basic principles are observed, and where there is extensive use of new technologies, but limited similarities to state court litigation. At the same time, arbitrators must be granted – and indeed exercise – more power in managing the proceedings. And be free from any paranoia on due process.

Improving Efficiency

Accordingly, the arbitral proceeding should follow a “less is more” policy:

  • less time to file submissions and strict compliance to a timetable agreed between the parties and the tribunal;
  • less (and less lengthy) written submissions;
  • immediate production of evidence and limited requests for production of evidence;
  • first Case Management Conference as soon as possible and covering as many aspects as possible; desirably, the aim of this Case Management Conference is to produce a combination of a “terms of reference” and a “procedural order Nr. 1”;
  • use of technological protocols to exchange submissions, make decisions, and produce notices;
  • streamlined procedures in the making of procedural orders;
  • use of technology to hold hearings and other conferences.

In any event, an efficient arbitration needs to have more of:

  • predictability;
  • control of costs;
  • background on the decision-makers;
  • control on ethical conduct.

There are already a handful of profiling and procedural tools that help tribunals and parties to accomplish those results and provide the necessary information to select the best possible decision maker for each case.

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Why Victoria Associates?

Why Victoria?

Victoria is a story of adventure, risk and success as the first ship to circumvent the world under the command of the Portuguese explorer Ferdinand Magellan.

When the fleet set off from Spain almost to the day 500 years ago, they could not know what they would ultimately accomplish, but Magellan and the other sailors had the courage and the will to succeed that made the ship Victoria the first to sail around the world, a miraculous accomplishment against all odds.

We chose Victoria Associates for our name as we embody the values and discipline of Magellan to achieve success for our clients regardless of the difficulty of the matter.

Victoria Associates also reflects other fundamental values of Magellan: win for and share risks with our clients.

We will guide you through the perilous straits of international dispute resolution.

Embark with us!