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Supreme Court of Justice (Portugal) | Territorial Jurisdiction of the Courts of Appeal | Res judicata | Seat of Arbitration |06-09-2016 | Case #0018

Supreme Court of Justice
Date: 06-09-2016
Case Nr. 158/15.4YRCBR.S1


As per Art. 39(1) of the LAV, the jurisdiction to appoint arbitrators lies with the court situated in the ‘seat of arbitration’. The time-limit to file an application for setting aside an award is a ‘judicial deadline’, and does not lead to extinction of material rights.   


  1. The presence of documents such as the one proving payment of court fees, minutes of witnesses etc. are not to be considered as proven facts. However, they have probative value for the determination of such facts. Since the given documents do not constitute evidence on their own, they are only an instrument for the court to acquire further evidence and uncover the true facts. This places them on the same plane as testimonies or expert witnesses.
  2. In an arbitration conducted under a permanent institution, the resolution of the dispute shall be settled by one or more arbitrators whose jurisdiction stems from an agreement of the parties.
  3. The terms “seat of the arbitral tribunal” and “place of arbitration” are distinct and there may be cases where the seat of the tribunal does not coincide with the place of arbitration. Thus, the “seat” and “place of arbitration” may come under different judicial districts.
  4. As per Art. 59(1) of the LAV, the Court of Appeal in whose district the ‘seat of arbitration’ is located has the jurisdiction to appoint arbitrators when they have not been appointed by the parties. In the present case, the ‘seat of arbitration’ was in the city of Coimbra, thereby giving territorial jurisdiction for the appointment of arbitrators to the Court of Appeal of Coimbra.
  5. 46(6) of the LAV provides a 60 day time-period for bringing an application to set aside an arbitral award. This is in the nature of a judicial deadline, which aims at regulating the various stages of proceedings. Judicial deadlines, such as the one in Art. 382(1) of the CPC, are the ones where the deadline is directly related to an action, and a lapse of the deadline does not lead to an extinction of material rights.
  6. The principle of formal res judicata means that once a decision has been made in relation to a procedural question, such decision acquires a binding force, under Art. 620(1) of the CPC.

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