Guimarães Court of Appeal | Kompetenz-Kompetenz | Lack of Jurisdiction | Arbitration Agreement| Case #122
Case nr. 149/20.3T8BRG.G1
14-01-2021
LINK DGSI
Summary:
I. According to Art. 96 of the Portuguese Code of Civil Procedure, the non-compliance with an arbitration agreement entails the absolute lack of jurisdiction of the judicial court sought to solve a dispute covered by that arbitration agreement. Notwithstanding, this objection needs to be raised by the opposing party and may not be decided “ex officio” but may be raised at any stage of the judicial procedure provided that the requesting party does so before the final decision.
II. Unless exclusively submitted by special law to State court jurisdiction or to compulsory arbitration, the parties may, by means of an arbitration agreement, submit any dispute involving economic interests to arbitration.
III. The arbitration agreement may concern an existing dispute, even if it has been brought before a State court (submission agreement), or possible disputes which may arise in respect of a defined legal relationship, contractual or not (arbitration clause).
IV. The submission agreement must specify the dispute at stake; the arbitration clause must specify the legal relationship involved in a future dispute.
V. The principle of “competence-competence” stems from the combined interpretation of Art. 5(1) and Art. 18(1) of Law No. 63/2011, of December 14, 2011 (New Arbitration Law), according to which arbitral tribunals are competent to decide upon their own competence.
VI. Only in cases where the voidness, inoperativeness or inapplicability of the arbitration agreement is blatant, is the judicial court allowed to intervene and, as a consequence, to decide that the objection of lack of jurisdiction does not proceed.