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Supreme Court of Justice (Portugal) | Ultra Petita| IBA Rules on the Taking of Evidence | 12-07-2018 | Case #0013

Lisbon Court of Appeal
Date: 12-07-2018
Case Nr. 1254/17.9YRLSB-L1-2


An award can be successfully challenged under Art. 46/3 (Arbitration Act) when parties have been treated unequally & that inequality had a decisive effect on the decision.


  1. Similar to other jurisdictions, the production of evidence is not governed by the LAV, but by institutional rules chosen by parties, or procedural orders issued by the Tribunal. However, the selected arbitral procedure must necessarily respect the fundamental principle of the treatment of parties with equality (Article 30/1/ b, LAV).
  2. A party that considers itself prejudiced by a situation of inequality in arbitral procedure may challenge the award under Article 46/3, LAV provided that such breach of the principle of equal treatment of the parties has had an influence on the resolution of the dispute.
  3. If the arbitration decision found under paragraphs 47 to 49 that the obligation assumed by CA …, SA in the 2011 Copper Agreement was not reflected in the consolidated income statement of CA …, SA referring to 30/9 (Which is based on an agreement and Doc A25, annex 5), this obligation did not result from the documents made available to the Claimant in connection with Due Diligence (in addition to witness testimony the Arbitral Tribunal inferred from the fact that the Claimant All the documents made available during Due Diligence and that they did not include any of the documents, which were not included in the Due Diligence financial report, doc A192) and that the information on the existence of the 2011 Copper Agreement was not available on the Intranet of the CA …, SA since 2011, with only a request for coverage relating to the GE … client with an initially set price and delivery conditions foreseen at the time of the request (Doc R2), it is clear from these evidence that the Court of First Instance ruled as it did on the basis of the documents which were put together (the defendants did not bring together any of those which the Claimant sent to them, being the prerogative of the defendants to join or that it was clear from these documents that the Authors had timely provided all the information necessary for Due Dilgence, in particular the information relating to the 2011 Copper Agreement, the concealment of which sustains the action for damages, and thus demonstrated the dismissal of the arbitration action, which they did not do and gave rise to the inference that the Arbitral Tribunal did). Accordingly, it is concluded that no breach occurred of the fundamental principles referred to in article 30/1 of the LAV (46/3 / a, ii), in particular, it is not possible to see how those decisions of the arbitrators violated the principle of equality or denied the defendants a reasonable opportunity to assert their rights in writing or orally, or even in breach of the principle of adversarial proceedings.
  4. Paragraph 2 of article 811 of the CCiv, provides for the possibility of having established a criminal clause (stricto sensu or purely sanctioning), the parties agree as they agreed compensation for the excess damage for which there is no real obstacle to cumulation of the value corresponding to the penalty clause stricto sensu with the amount corresponding to the compensation for future damages; in view of the facts established, the content of the contractual clauses seems to us to be clearly outside the scope of punitive or exemplary damages of such dubious constitutionality (and legality), rather they result from the exercise of the freedom of contract provided for in art. No 405 of the CCiv, since the contested decision did not manifestly, seriously and seriously exceed the limits imposed by good faith and good manners, the principle of proportionality or any other principle integrated in the public order of art. LAV.

This case summary was kindly prepared by Rishabh Raheja, (, NALSAR University of Law), Sameer Thakur (, NALSAR University of Law), and Abhishek Babbar (