Arbitration: a brief overview of the appeal mechanism against a Portuguese award

As the Portuguese Constitutional Court has upheld[1] for many years, there is no doubt that, besides arbitration being a legitimate dispute resolution mechanism, an arbitration court is a body that is constituted precisely to exercise a jurisdictional function.

From the perspective of the Portuguese Constitution of 1976, arbitration courts are on the one hand equivalent to national courts and, on the other, different in certain aspects. In other words, although arbitration courts are not sovereign bodies under the terms of article 202.1, – mainly because they are not permanent bodies nor personified by public judges –, they may still be qualified as courts for other constitutional purposes, since they are seen as an autonomous category of courts (cfr. article 209.2) that administer justice on behalf of the people (article 202.1). This means, therefore, that arbitrators perform a jurisdictional function by declaring the law.

The constitutional provision of arbitration courts as autonomous categories of courts therefore means, on the one hand, that arbitral awards are authentic and valid jurisdictional decisions endowed with authority and a res judicata effect –  the law confers on them the same binding force as judicial decisions – and, on the other, arbitration courts constitute bodies with jurisdiction to review the constitutionality of legal norms pursuant to article 204 of the Portuguese Constitution.

The first topic of this review is that arbitral awards ruled by an arbitration court are subject to appeal to a national court under certain circumstances, according to the rule established in the Portuguese Voluntary Arbitration Law passed by Law 63/2011, of December 14, 2011 (cfr. article 39.4).

In fact, Law 63/2011 has shifted the paradigm regarding matters of appeal against arbitral awards by reversing the supplementary legal regime that existed under Law 31/86, of August 29, 1986 (which it revoked).

The rule set forth in Law 31/86, a highly-criticized provision by Portuguese legal doctrine, stated that arbitral awards were, in all cases, subject to review by national courts, except in situations where the parties expressly waived the possibility.  

On the contrary, Law 63/2011 changed the rule on arbitration efficiency and autonomy grounds, by establishing the rule that arbitral awards that end the dispute or part thereof are not subject to appeal, unless the parties have specifically agreed.

However, such an appeal is prohibited if the arbitration court rules according to equity or by amicable agreement. In both cases, the judgment criterion chosen by the parties does not involve the application of general and abstract rules that can be controlled by an appellate court, whether or not a national court, but rather involves the weighing up of all the singularities of the case by arbitrators in which the parties have placed their trust.

The rule is applicable to commercial, tax and administrative arbitration, with the exception established in the Public Contracts Code concerning administrative arbitrations. The Public Contracts Code (Decree-Law 18/2008, of January 29, 2008) states (since 01.01.2018) that disputes of more than 500,000 EUR are be subject to appeal to the competent administrative court. This means that an appeal to a national court is always a possibility when it is for more than 500,000 EUR.

The Portuguese legal system also provides for the possibility of appeal against arbitral awards to the Portuguese Constitutional Court.

An appeal to the Portuguese Constitutional Court cannot be waived according to article 73 of the Organic Law governing the Constitutional Court, approved by Law 28/82, of November 15, 1982 (in its latest version).

Furthermore, an appeal may be filed either (i) when the arbitration court refuses to apply a rule on the grounds of its unconstitutionality or (ii) when the arbitration court applies a rule whose constitutionality has been questioned during the proceedings.

Thus, article 280 of the Portuguese Constitution provides for two types of appeal to the Portuguese Constitutional Court:

1. According to paragraph a), point 1, the appeal is mandatory for the Public Prosecution and occurs whenever there is refusal of application of the rule by the arbitration court on the grounds of its unconstitutionality (cfr. article 72. of the Organic Law governing the Constitutional Court). Furthermore, an appeal by the Public Prosecution is mandatory when the rule whose application has been refused forms part of an international convention, legislative act or regulatory decree on the grounds of its unconstitutionality (cfr. article 280.3 of the Portuguese Constitution and article 72.3 of the Organic Law governing the Constitutional Court).
         
   However, the abovementioned article 72 of the Organic Law  poses two practical problems.
              
   The first problem concerns the application of the provision to arbitration proceedings, since the Public Prosecution does not intervene in arbitration proceedings. This issue is particularly relevant to the aforementioned provisions.
             
   Portuguese legal doctrine has considered that, since the obligation not only results from the Organic Law governing the Constitutional Court, but also the Portuguese Constitution, the rule must necessarily apply in such cases. Thus, it implies the existence of an obligation – on the part of the arbitration court - to notify the Public Prosecution of the arbitral award whenever the arbitration court refuses to apply a rule contained in an international convention, legislative act or act or regulatory decree on the grounds of its unconstitutionality. This notification occurs when the parties are notified of the arbitration award and the arbitration court informs the Public Prosecution of the national court that is competent to resolve the dispute.
                 
   The second problem, given the fact that the arbitration court completes its jurisdiction upon issuing the arbitral award, concerns the competent court to assess the admission of the appeal to the Constitutional Court: the arbitration court or the Portuguese Constitutional Court.
              
   Although Portuguese Law does not provide a general solution, Portuguese legal doctrine has held different opinions on the matter. For some experts, the competent court to assess the admission of an appeal to the Constitutional Court is still the arbitration court. After the assessment of the requirements of the appeal, the arbitration court submits it to the Constitutional Court. This solution has been adopted within the scope of civil procedural law. For others, the competent court to receive and directly decide on the admission of an appeal is the Portuguese Constitutional Court. This solution has been adopted in tax arbitration law.
2. According to paragraph b), point1, the appeal is optional for the party that raised the matter of unconstitutionality during the proceedings when all ordinary appeals have been exhausted. This can occur either when the law does not provide for such an appeal or when all other appeals that could be filed have been exhausted, except those intended to unify case law (cfr. article 70.2 of the Organic Law governing the Constitutional Court).
           
   These matters may (but do not have to be) assessed by the Constitutional Court under the terms of the law. It all depends on whether there is procedural action by those interested in reviewing the judicial decision that applied norms whose constitutionality or legality was questioned during the proceedings.
                
   The situations referred to in article 70.2 - allowing for an appeal limited to the mere issue of constitutionality and not on the merits of the case - are those mentioned in article 70.4: (i) waiver of the appeal; (ii) expiry of the time limit for filing an appeal; (iii) when the appeal filed cannot proceed for procedural reasons. The court has the last word on the matter - it is the final judgment.
3. In both cases, the deadline for filing an appeal with the Constitutional Court is 10 (ten) days and interrupts the other deadlines of appeals that may be applicable to the decision, which can only be filed after the interruption has ended, according to article 75 of the Organic Law governing the Constitutional Court.

With regard to international arbitration, article 53 of the aforementioned Voluntary Arbitration Law states that arbitral awards are not subject to appeal, unless the parties have (i) specifically agreed to the possibility of appeal to another arbitration court and (ii) have regulated its terms.

The aim is to safeguard the effectiveness of arbitral awards and the autonomy of arbitration courts as far as possible, concerns of particular relevance in international trade.

In any case, if an international arbitration applies Portuguese law, there is always the possibility of filing an appeal to the Portuguese Constitutional Court in the two aforementioned situations.