Guimarães Court of Appeal | Annulment of the Arbitral Award | Res judicata | 15-11-2018| Case #082
Case Nr. 156/18.6YRGMR LINK DGSI
The defects that can justify the action for annulment of the arbitral award are procedural defects equivalent to procedural violations – procedural violations or specific procedures of arbitration proceedings.
The lack of reasoning of the arbitral award can only be declared in cases in which there is a complete lack of reasoning.
– In accordance with Article 46, paragraph 9 of the LAV (Law of Voluntary Arbitration), the State Court that annuls the award cannot decide on the merits of the matter or on issues decided in such award. The matter should be submitted to another arbitral tribunal.
In fact, the defects that can justify the action for annulment of the arbitral award are procedural defects equivalent to procedural violations – procedural violations or specific procedures of arbitration proceedings – by which, if nullity of the arbitral award is invoked, there is no especial treatment in relation to the same defects of judicial decisions and, to that extent, all that refers to latter will apply to the former.
Art. 42, paragraph 3 of the LAV provides that “The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is rendered on the basis of an agreement of the parties under article 41”, by which, as is the case with the judicial decision, here also requires that the Arbitral Tribunal states the reasons for its decision in terms of fact and of law.
Accordingly, the nullity defect for lack of reasoning (Article 46, paragraph 3, a) vi) of the LAV) of the arbitral award – enforceable by the annulment action – can only be declared in cases in which there is a complete lack of reasoning. Whenever the reasoning is deficient, such deficiency should be remedied by means of appeal;
It must be understood that there is no such defect when the Arbitral Tribunal states its reasoning in the decision, including at the base of its decision the pertinent factual situation and invoking the relevant legal precepts – not refraining, in fact, from judging as unconstitutional the rule of Art. 78, paragraph 1 of the Regulation of the Public Postal Service, which had been invoked by the Claimant, deciding that it violated the provisions of the arts. 60, N. 1 and 18, paragraph 2, of the Constitution (CRP).
Such unconstitutionality decision of said rule does not constitute any offense of any principle of international public order (or internal) (another plea for annulment of the arbitral award provided for in Art. 46, paragraph 3, (b)(ii) of the LAV). Since it is expressly enshrined in the constitution that the arbitral tribunals are true and proper courts (arts. 209, paragraph 2 of the CRP; art. 42, paragraph 7 of the LAV), it is evident that their decisions are likely to be subject to constitutional control (by means of appeal to the Constitutional Court when such is applicable) and, on the other hand, that the Arbitral Tribunal cannot fail to consider the constitutionality of legal rules applicable in the case (Article 204 (1) of the CRP where it mentions that “in the cases before a court, the courts cannot apply rules that contravene the provisions of the Constitution or the principles contained therein”).