Lisbon Court of Appeal
Date: 13-02-2014
Case Nr. 1053/13.7YRLSB-2 LINK DGSI
Headline:
It is up to the arbitral tribunal to decide on their fees and other costs of the arbitration. It shall not be annulled a final award that does not contain the motivation regarding the factual background that was considered to be proven by the arbitral tribunal.
Summary:
In the absence of agreement between the parties and the arbitrators, the arbitrators shall determine the amount of their fees and expenses, but the parties may submit any such decision to scrutiny of the state court.
Although the arbitration referred to in the present case does not apply to the NLAV (New Voluntary Arbitration Law) but to the old LAV (Voluntary Arbitration Law provided for in Law 31/86): the criteria indicated in the NLAV for arbitration costs (complexity of the issues decided, the value of the case and the time spent) are the most reasonable and should be followed in determining the costs of the arbitration. The schedules attached to the institutional rules applied by the arbitral tribunal in the terms of reference may be used as an indicative reference.
The fact that the authorization to place a generic medicine on the market was granted prior to the entry into force of Law no. 62/2011, of 12.12, does not preclude the commencement of the mandatory arbitration provided for in article 3 of said law, following the publication of that authorisation made by Infarmed under the terms of Article 9 (2) of said Law.
The arbitral tribunal constituted according to Article 3 of Law no. 62/2011 (for the settlement of disputes between companies of generic medicines and companies of reference medicines with regard to industrial property rights) does not have jurisdiction to decide upon the validity of the patent at stake, even if by way of a mere procedural objection.
The limitation period of the arbitration provided for in paragraph c) of paragraph 1 of article 4 and paragraph 2 of Article 19 of the LAV does not apply to the mandatory arbitration provided for in Law no. 62/2011.
It shall not be annulled a final award that does not contain the motivation regarding the factual background that was considered to be proven by the arbitral tribunal.
This case summary was kindly prepared by Sameer Thakur (sameerthakur@live.in, NALSAR University of Law), Rishabh Raheja, (rishabharaheja@gmail.com, NALSAR University of Law), and Abhishek Babbar (abhishekbabbar1996@gmail.com).
