(Portugal) Supreme Court of Justice | Kompetenz-Kompetenz | Standard Form Contracts | Swaps | 14-05-2019 | Case #92
Case nr. 2741/16.1T8PTM.L1.S1
Even though there is no express arbitration agreement in the contract, the mere reference to a framework contract which contains in itself an arbitration clause is deemed to be construed as an agreement to arbitrate between the parties, under Art. 2(4) of the Portuguese Arbitration Law. The invalidity of the contract under the applicable legal regime, and consequently of the arbitration clause, falls outside the scope of the court’s powers, according to the principle of kompetenz-kompetenz.
I – When the Court of Appeal considers that the decision of the Court of First Instance is void, for failure to indicate the established facts in the award, it shall be lawfully entitled to set them by valuing the available evidence, under the provisions of Art. 665 (1) and (2) of the Portuguese Code of Civil Procedure (and according to the constitutional value of obtaining justice within a reasonable time).
II – The reference, expressed in the confirmation of the interest rate swap contract, to a framework contract which contains an arbitration clause shall be regarded as an arbitration agreement (Art. 2(4) of the Portuguese Arbitration Law).
III – The negative effect of the principle of kompetenz-kompetenz of arbitral tribunals determines that the state courts shall be entrusted merely with a prima facie control of the validity of the arbitration agreement, which cannot include the inquiry of its noncompliance with the legal framework provided by the Decree-Law nº 446/85, from 25th October [Portuguese legal framework for Standard Form Contracts].
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