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(Portugal) Supreme Court of Justice | Kompetenz-Kompetenz | Waiver of the right to challenge the lack of competence | 04-12-2018 | Case #84

(Portugal) Supreme Court of Justice
Case Nr. 598/17.4YRLSB S1
Date: 04/12/2018

The arbitral tribunal has competence to decide on its own competence, and the appointment of an arbitrator by a party does not deprive it of later challenge the competence of the arbitral tribunal.


  1. The appellate decision that, in an action seeking the annulment of an arbitral decision, confirms, without a dissenting opinion and without a reasoning essentially different, an interlocutory decision of the arbitral tribunal, in which, in the light of the agreement executed between the parties, the tribunal decides that it holds jurisdiction to determine the dispute, is subject to review by the STJ limited to such issue – arts. 671(3), first part, and 629(2)(a), of the CPC.
  2. The arbitral award, to declare its own jurisdiction, in accordance with paragraph 1 of art. 18 of LAV/2011 (rule of Kompetenz-Kompetenz), must examine the existence, validity, effectiveness and applicability of the arbitration agreement.
  3. The appointment of an arbitrator by a party does not deprive it of the right to challenge the competence of the arbitral tribunal to hear the dispute – paragraph 5 of art. 18 of LAV.
  4. In the interpretation of the agreement executed by the parties the criteria set out in the arts. 236 to 456 of the civil code must be examined; in this particular point, it is relevant to distinguish between the agreement contained in the minutes of the meeting of 2009 and the claimed technical arbitration agreement, the object of the last item of the same agreement.
  5. The agreement of 2009, as mentioned in the previous arbitral decision of 2015, supersedes the others and falls within the provision of paragraph 8 of clause one of the construction contract of 2007, where it is stated that “the conditions of performance of the works shall be those set out in this contract and those that may come to be agreed by the parties in writing after its execution”.
  6. The previous arbitral decision of 2015, pending a challenge still to be resolved, decided that the parties “be sentenced in a decision to be settled in the proceedings for the enforcement of the award, in accordance with the obligations assumed by the parties” in the Agreement of 2009, modifying and redefining the conditions of the same agreement, deciding as the audits being complied with and setting the beginning of the count of the deadlines therein provided.
  7. The purpose of this dispute is to proceed with the operation of the generic decision made by the arbitral tribunal in its award of 2015 (with the modification and redefinition by the same in the agreement of 2009) – decision that was rightly made, because, although the requisite elements of the obligation had already been determined, the quantum had not yet been determined by expert evidence.