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(Portugal) Supreme Court of Justice | Kompetenz-Kompetenz | Decision on the Constitutionality and Res Judicata | 27-11-2018 | Case #83

(Portugal) Supreme Court of Justice | Kompetenz-Kompetenz | Decision on the Constitutionality and Res Judicata | 27-11-2018 | Case #83
Date: 27/11/2018
Case Nr. 1030/12.5TVLSB.L1.S1.S2

It is up to the arbitral tribunal to decide on its own competence even when a previous decision has been challenged via appeal lodged before the Constitutional Court


  1. Article 21, No.1 of LAV – Law No.31/86, 29/8, applicable to the case under these proceedings- provides that “the arbitral tribunal may rule on its own jurisdiction (…), being this the affirmation of the principle of “competence of the arbitral tribunal to decide its own competence” also called kompetenz-kompetenz, which presupposes in its analysis a positive effect, which is to enable the tribunal to decide on its own


  2. It shall subsequently be up to the state court to assess the competence of the arbitral tribunal after the tribunal has spoken, either by means of challenging the decision on such a matter of jurisdiction, or in opposition to the enforcement of the arbitral award, in which case the arbitral award can be annulled by the court if the dispute is not capable of settlement by arbitration and/or has been decided by a tribunal without jurisdiction or that the tribunal was irregularly constituted in accordance with Article 27, paragraph 1, subparagraphs (a) and (b) of LAV of 1986.

  3. Having been declared the unconstitutionality of article 7 paragraph 3 of DL 333/97 of 27 November, which attributed the jurisdiction to the arbitral tribunal, on appeal and consequently annulled the arbitral award, the Applicant may not “avoid” the effects of the declaration of unconstitutionality since the decision on the appeal produced in the arbitration proceeding, which stated the jurisdiction of the Arbitral Tribunal, was not a final decision on the question of jurisdiction, since Article 21, paragraph 4, of LAV of 1986 sets forth that “the decision by which the arbitral tribunal declares its jurisdiction can only be assessed by the court after the arbitral award decides the merits and by the means specified in articles 27 and 21.

  4. Thus, that first decision, taken in appeal, was not a final decision, and could have been challenged when claiming its nullity, having been precisely the question of unconstitutionality that served as a basis either for the cause of nullity provided for in subparagraph (a) of article 27 thereof, or the claim in subparagraph (b) of the same law.

  5. The decision made by the arbitral tribunal concerning its own jurisdiction does not produce any effect of res judicata, in accordance with Article 21, no.4 of LAV. Further, it cannot be said that because there was no appeal lodged before the Constitutional Court against the decision of the arbitral tribunal, that decision produced a res judicata effect, since it has to take into account the conditions set out in article 70, paragraph 2 of the Law of the Constitutional Court.