Portuguese Arbitration: Annulment of Arbitral Awards | International Public Policy | Dismissal without prejudice – Case # 148

Summary:

I – The benefit of the effects of filing an action, for the purpose of preventing the limitation under Article 279(2) of the Code of Civil Procedure (CPC), must be read in conjunction with Articles 332(1) and 327(3) of the Civil Code (CC). Accordingly, the dismissal without prejudice must not be attributable to the rightsholder.

II – In assessing whether conduct is culpable, just as when resorting to considerations of equity, the Court is asked to make a prudent and case-specific judgment. This judgment is not based on the strict application of a normative criterion, but on a balancing of the particularities and specificities of the case at hand, while still ensuring a more or less uniform application of the law (Article 8(3) CC).

III – Since the dismissal of the first action without a ruling on the merits was due to the finding of the Defendant’s lack of standing, it must be concluded that such dismissal is attributable to the Claimants, in a situation where it is established that:

• The Claimants could not fail to know with whom they contracted (the shareholders’ agreement identifies the parties to it, expressly listing the Claimants and FACCE); and, during the arbitration proceedings, FACCE was always referred to as Claimant and party to the dispute;
• There was no reasonable doubt as to the procedural requirements of standing and representation, which do not raise significant difficulties in their legal differentiation and interpretation;
• And above all, the arbitral award clearly identified FACCE as a party/claimant and its current representative Banco 1…, specifying the statute that governs and links both positions.

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