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Porto Court of Appeal | Competence of the Arbitral Tribunal to decide the Validity of the Arbitration Agreement | 13-04-2015 | Case #072

Porto Court of Appeal
Date: 13-04-2015
Case Nr. 471/14.8TVPRT.P1

The arbitral tribunal is competent to decide the validity of the arbitration agreement, and the state court may not decide that issue unless such invalidity is blatant.


1. Given that the parties entered into a ‘master agreement’, which stated that it was “intended to regulate the general conditions applicable to every financial transaction to be entered into between the Parties, of the same type or legal nature or of a different type or nature in the future”, it should be understood that the parties intended to apply the clauses of that agreement to the “Interest Rate Swap Agreement” which they entered into subsequently.
2. This conclusion is reinforced by the stipulation that “the set out in this contract is part of the framework for each of the financial transactions to be carried out between the Parties, unless otherwise agreed by the parties in writing”.
3. If the parties agreed on the ‘framework contract’, that “all disputes which may arise between the Parties under this contract shall be settled by an arbitral tribunal which shall decide according to the law and from whose decision there is no appeal to any instance” it should be understood that they intended to submit any divergence arising from the “Swap Agreement” to arbitration.
4. If the arbitration agreement is invoked by the defendant, in accordance with Article 5 (1) of the LAV, it necessarily follows the dismissal of the lawsuit, unless the state court finds that the arbitration agreement invoked is manifestly null and void, ineffective or unenforceable, that is, if such defects appear to the court judge in an obvious manner, without needing any further evidence.
5. The decision on the validity of the arbitration agreement falls into the competence of the arbitral tribunal, according to Art. 18(3) of the Portuguese Arbitration Act.