FAQs

Voluntary arbitration is an alternative means of dispute resolution which consists of the attribution, by agreement of the parties, to a third party or third parties - the arbitrators - of the power to decide on a dispute.

Arbitrators are independent and impartial from the parties and do not act as their representatives.

The agreement of the parties to submit one or more disputes to the decision of arbitrators is called an "arbitration agreement" and may relate to both future and current disputes.

In Portugal, arbitration is essentially governed by Law No. 63/2011 of 14 December. The Voluntary Arbitration Law

The choice between arbitration and state jurisdiction requires the consideration of several factors and depends on the characteristics of each case. In any event, and by comparison with state courts, arbitration typically presents several advantages, in particular:

• Increased speed, insofar as it is possible, as a rule, to obtain a final decision within a substantially shorter period of time;
• Greater flexibility, including, among other things, the possibility for the parties to choose arbitrators with the most appropriate profile for the features of the dispute and to tailor the rules of procedure to their interests;
• Greater efficiency, insofar as, as a rule, it will be possible to adapt the conduct of proceedings to the characteristics of the dispute and to concentrate the performance of procedural acts in a shorter space of time;
• Lower costs, to the extent that, in high-value cases, the value of arbitration fees can be substantially lower than the value of court fees in state courts.

In international cases, arbitration has, among others, the added advantage of neutrality in relation to the courts of any of the states involved.

Under Portuguese law, arbitration can be applied to any dispute concerning property or non-property interests, which can be freely disposed of by the parties.

It is therefore admissible to resolve disputes in the most diverse areas by arbitration, including most commercial disputes and matters of a contractual nature and extra-contractual liability.

An Arbitration Centre is a specialised permanent institution that organises and administers arbitration, governed by its own rules. It is not to be confused, however, with the arbitration tribunal, as it does not have the power to decide disputes or propose how they should be resolved. The Arbitration Centre performs administrative support functions for the organisation and conduct of arbitration proceedings, in particular by taking certain decisions before the constitution of the arbitration tribunal, financial management of the costs of arbitration, summons of the defendant(s) and notification of arbitration awards, as well as providing secretarial services for the tribunal and rooms for hearings.

Arbitration supported by a permanent administrative structure is called institutionalised arbitration.

The creation of institutionalised arbitration centres in Portugal is subject to authorisation by the Minister of Justice.

The CAC is the oldest and most experienced Arbitration Centre operating in Portugal.

Arbitration can be institutionalised or ad hoc, depending on whether the parties entrust the organisation of the arbitration to a specialised institution (an Arbitration Centre) with its own rules, or dispense with the intervention of any institution and organise and regulate the arbitration themselves.

The recourse to institutionalised arbitration may be provided for in the arbitration agreement from the outset or be agreed upon later, when the dispute arises.

Institutionalised arbitration, in particular under the aegis of the CAC, has several advantages over ad hoc arbitration, in particular:

• Simplification of the wording of the arbitration agreement, insofar as the submission of a dispute to the CAC implies acceptance of its Rules as an integral part of the arbitration agreement;
• Greater security and predictability resulting from the application of arbitration rules tested and drawn up by specialists and intended for general application;
• Possibility of a decision by the President of the CAC on certain matters including, inter alia, appointment of arbitrators not appointed by the parties, refusal and replacement of arbitrators, intervention of third parties and joinder of cases;
• Increased guarantees of impartiality and independence of arbitrators;
• Efficiency and speed resulting, in particular, from the CAC's monitoring and support in carrying out the arbitration process;
• Suitability for complex arbitrations;
• Control of arbitration fees;
• Possibility to order interim measures before the constitution of the arbitration tribunal through the appointment of an emergency arbitrator by the President of the CAC.

The Commercial Arbitration Centre is the arbitration institution created by the Lisbon Trade Association – the Portuguese Chamber of Commerce and Industry, duly authorised by Order of the Minister of Justice, under the terms of Decree-Law no. 425/86 of 27 December, through which institutionalised arbitration is promoted and carried out and services are provided that have a connection with arbitration and alternative dispute resolution processes.

The Commercial Arbitration Centre operates within the scope of the Portuguese Chamber of Commerce and Industry, with administrative and financial autonomy, and has its own management distinct from the management of the Chamber of Commerce. The management of the Centre, appointed by the management of the Chamber of Commerce, is called the Board of the Commercial Arbitration Centre, which is made up of nine members: a President, two Vice Presidents and seven Members. It also has a secretariat, coordinated by a Secretary-General and technical and administrative staff.

In addition to institutional arbitrations, the Centre can also intervene in ad hoc arbitrations, providing secretarial and procedural management services.

The arbitration fees include the fees and expenses of the arbitrators, the administrative fees and the costs of evidence. The fees and administrative costs are determined according to the value of the arbitration and according to the tables annexed to the Arbitration Rules (which can be obtained through the website, where there is a simulator for this purpose). The arbitrators' travel expenses and those related to the production of evidence are calculated according to their actual cost.

Liability for payment of the costs of arbitration shall be determined by the arbitration tribunal in the award.

Any questions concerning the operation of the Arbitration Centre or the conduct of the arbitration proceedings may be addressed in writing, by telephone, by e-mail or by any other means of communication to the Secretariat of the Centre.

Any natural and fully capable person (of legal age and without any legal limitation as to the exercise of their rights) may be an arbitrator. Arbitrators may be Portuguese or foreigners. The parties may, however, agree that the arbitrators must have certain characteristics and/or qualifications. In this case, only people who meet these characteristics should be appointed as arbitrators.

In a CAC arbitration, the parties may choose to have only one arbitrator or three. If they do not agree on the number of arbitrators, as a rule there will be only one arbitrator. However, the President of the CAC may, if they see fit in a specific case, decide to have three arbitrators, always after hearing the parties' opinion.

The parties are free to decide how the arbitrators are to be appointed. If it has been agreed that there will be only one arbitrator, that arbitrator must be chosen by the parties by mutual agreement. If the parties cannot agree on who the arbitrator should be, then the President of the CAC appoints the arbitrator.

If it is agreed that there will be three arbitrators and the parties do not agree on who these arbitrators should be, each party chooses one arbitrator and then these two arbitrators choose the third, who will become the president of the arbitration tribunal.

Where a party fails to appoint an arbitrator who they must appoint, or where the parties fail to agree on an arbitrator they must appoint by agreement, the Chair of the CAC chooses the arbitrator. A list of arbitrators from which, as a rule, the Chair of the CAC may choose an arbitrator in such cases is available on the CAC's website. This list may also be useful as guidance for a party that needs to appoint an arbitrator.

Some special rules, such as in the case of plurality of claimants and defendants, are contained in the Rules.

From the moment a person accepts to be an arbitrator, they cannot withdraw, unless a situation arises, after having accepted, that makes it impossible for them to perform their function, and this reason is recognised by the President of the CAC. An arbitrator who does not respect this duty may even be held liable for damages caused.

All arbitrators, whether appointed by the parties or by the President of the CAC, must be independent of both the parties and the dispute. They must also act impartially at all times. They must also be available for the proceedings for which they are appointed.

All arbitrators therefore have a duty, when intending to accept an appointment, to disclose, by means of a statement made available by the CAC, any circumstances that could cause the parties to have reasonable doubts as to their independence, impartiality or availability. They must also provide such information if any circumstances arise after they have been appointed.

If any party has doubts about the independence, impartiality or availability of an arbitrator, it may raise the issue with the President of the CAC, who will decide whether or not that arbitrator may remain.

To initiate an arbitration, the party wishing to do so shall submit to the Secretariat of the CAC an application in which they must:

• Identify the parties to the dispute, indicating addresses and, if possible, emails;
• Briefly describe the dispute;
• State what they wish the arbitration tribunal to decide, indicating the amount, even if estimated, that they believe is at issue;
• Indicate the arbitrator to be appointed, if any, or any other relevant indications as to how the arbitration tribunal should be constituted;
• Indicate any other circumstances they think important.

Either the existing arbitration agreement (for example, a copy of the contract containing the arbitration clause) or, if requesting arbitration that is not foreseen, a proposal to enter into an arbitration agreement, must be enclosed with this request. Please note: If the other party does not agree to this proposal, there can be no arbitration.

The parties can decide where they want the arbitration to take place, whether in Portugal or abroad. It does not necessarily have to be at the seat of the CAC or even in Lisbon.

If the parties fail to reach an agreement, it is the arbitration tribunal that decides where the arbitration will take place, once it has been constituted.

Irrespective of the place of arbitration, the arbitration tribunal may, on its own initiative or at the suggestion of either party, decide to hold meetings, hearings or any other proceedings that may be necessary elsewhere.

There is no rule on how long arbitration proceedings take and each case is unique. It will depend on various circumstances, such as whether the dispute is simpler or more complex, whether expert testimony is required, whether many or few witnesses are heard, etc. However, according to CAC statistics the average duration of an arbitration proceeding is around 15 months.

Mediation is a flexible and confidential process by which parties (the "Parties") voluntarily seek to reach an agreement with the assistance of a neutral and impartial third party (the "Mediator") without authority to impose a solution on the Parties.

In practice, Mediation is a negotiation assisted and enhanced by the participation of a third party with specific experience and/or training in areas such as negotiation, communication and creative thinking, that brings a fresh and neutral approach to the discussion between the Parties.

Control of the Parties - Mediation is a voluntary process, totally dependent on the will of the Parties. The solution to the case is found and chosen by the Parties, with the help of the Mediator. Confidentiality - Nothing that occurs or is said in Mediation can be used in Court or disclosed outside the Mediation.

Independence and impartiality of the Mediator - The Mediator has the duty to be and remain independent and impartial throughout the mediation. Flexibility and informality - In Mediation there is no pre-defined process; different mediation procedures may follow different processes and the specific steps to be followed will depend on the Mediator.

Focusing on the interests and needs of the parties - Mediation focuses on the real interests and needs of the parties and on how these can be satisfied.

Wide range of possible solutions - Mediation allows the exploration of several possible solutions for each dispute, aiming at finding a solution that satisfies the interests of all parties and encourages the creativity of the parties in finding solutions that are not possible in other means of alternative dispute resolution.

High rate of success - Studies of institutions which administer mediations show that a high number of mediations (more than 80%) end in an agreement. Moreover, the vast majority of agreements reached in mediation are voluntarily adhered to by the parties.

Preservation of relations - Mediation is one of the few dispute resolution methods that allows and helps to preserve and restore the relations between the parties in dispute.

Speed and efficiency - Most mediations are over in days or weeks, as opposed to arbitration and court proceedings which, in the best case scenario, last months and sometimes years, with all the inherent direct and indirect costs.

Lower costs - The costs of mediation are a fraction of the costs of an arbitration or judicial proceeding. This results from the fact that mediations usually have a short duration, and especially from the fact that mediation costs are usually not calculated according to the value in dispute.

The Mediator is responsible for designing and implementing the mediation process according to the characteristics of the specific case.

The Mediator assists the Parties, among other things, to:

• communicate objectively and constructively
• focus the discussion on the Parties' true interests and needs, underlying the positions taken by them
• overcome deadlocks
• identify areas of understanding
• explore, in a creative way, possible solutions and options for mutual gain
• assess, in an objective way, the alternatives to an agreement
• analyse the solutions found, in terms of feasibility and viability

The Parties may choose, by agreement, the Mediator who they consider best suited to assist them in resolving their dispute.

In the absence of an agreement, the President of the Arbitration Centre appoints the Mediator, choosing them from the names on the list approved by the Council of the Centre [link to the list of mediators].

Those wishing to submit a dispute to mediation at the Arbitration Centre must submit the Request for Mediation to the Secretariat, enclosing the mediation agreement or proposal for its conclusion to be submitted by the Secretariat to the opposing party.

The costs of mediation shall comprise the fees and expenses of the Mediator and the administrative costs of the proceedings.

The fees of the Mediator are fixed by the President of the Arbitration Centre, between a minimum of €188 and a maximum of €375 per hour of mediation session, including non-face-to-face mediation.

The administrative costs of the mediation proceedings correspond to 15% of the fees fixed for the Mediator.

As a rule, the costs of mediation are shared equally between the Parties.

It is not mandatory, but parties may (and should) be assisted by lawyers during the course of a Mediation procedure.

The role of the lawyer in Mediation includes:

• Preparing for the Mediation, including selecting the information and documents to share and at what time, analysis on the advantages and disadvantages of possible proposals discussed in the Mediation and the alternatives to a negotiated solution;
• Listening to the needs of the party they represent and the other participants, assisting in the construction of creative options;
• Assisting their client in sharing and obtaining information;
• Providing legal advice, explaining to their client the legal framework of the solutions and proposals discussed as well as the respective risks and gains;
• Ensuring the observance of the fundamental principles of mediation, such as its voluntary nature, confidentiality, equality, impartiality and independence, competence, liability and enforceability;
• When an agreement is reached, advising their client in its drafting.

Mediation is subject to the voluntary principle, i.e., there is only mediation if, when and for as long as both parties so agree. In other words, any of the Parties may withdraw from the mediation at any time without any justification.

Another important manifestation of this voluntary nature is that there is only an agreement if both Parties so agree, being these who determine its content.

The Mediation procedure terminates when:

a) The parties reach an agreement;
b) Any of the parties withdraw;
c) The mediator, with justification, decides so;
d) The maximum duration of the procedure is reached, including any extensions of it;
e) The charges are not paid, after notification for that purpose.

If the mediation procedure is terminated and no agreement has been reached between the Parties:

a) Where there is an arbitration agreement, either Party may commence arbitration. The Parties may also agree, in the mediation and/or arbitration agreements or thereafter, that mediation and arbitration shall take place simultaneously.
b) If there is no arbitration agreement, but both Parties wish to settle the dispute by arbitration at the Centre, the Parties shall sign the respective arbitration agreement, after which they may initiate the arbitration proceedings.
In this case:
i. The amount provided for in the Arbitration Rules shall not be paid on presentation of the Arbitration Request;
ii. The amounts paid as administrative fees in the mediation shall be deducted from the arbitration fees.