Lisbon Court of Appeal
Case Nr. 2553/18.8YRLSB.L1-2
Art. 39(4) of the Portuguese Arbitration Law provides that the right to appeal depends on the parties’ express agreement. However, this regime concerns merely those awards that settle the dispute or a part of it. Therefore, it does not extend to interlocutory arbitral decisions.
I. Contrarily to what resulted from the Portuguese Voluntary Arbitration Law [PAL] from 1986 (Law n. º 31/86, from 29th August), which provided for the parties’ right of appeal as a general rule, Art. 39(4) of the present PAL (Law n. º 63/2011, from 14th December) reverses the default regime by establishing as a rule that arbitral awards that settle the dispute, or a part of it, cannot be appealed;
II. Thus, the admissibility of appeal to state courts depends on the express agreement between the parties – for example, in the arbitration agreement – as it happened in the present case, where the parties reverted the general rule laid down in Art. 39(4) PAL.
III. Nevertheless, and with the exception of Art. 18(9) PAL, which sets forth the challenge or appeal of the arbitrators’ decision on its own jurisdiction, this regime is not applicable to interlocutory decisions, since the parties to the dispute are not allowed to provide for the possibility of appeal to state courts for such decision in their arbitration agreement.
IV. This is conclusion is the result of Art. 39(4) PAL, which provides for the admissibility of the agreement between the parties regarding the right to appeal merely on what concerns “the award on the merits of the dispute, or which terminates the arbitral proceedings without a decision on the merits”.
V. The decisions subject to this appeal did not provide for a final or partial award on the merits of the dispute, nor did they terminate the arbitral proceedings without a decision on the merits, which means that we are not confronted with an arbitral award that settles the dispute;
VI. We are dealing with interlocutory arbitral decisions, in respect of which the appeal has not been provided (nor could ever be). The appeal against them is therefore inadmissible.
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