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Europe Guide

Dispute Resolution: Most in Demand Arbitrators — Portugal

Overview

PORTUGAL: An Introduction to Dispute Resolution Contributed by PLMJ Network

Dispute Resolution - 2018

Portugal continues to enjoy a high profile on the international scene. One recent sign of this was the election as president of the Eurogroup of the Portuguese Minister of Finance, Mário Centeno, who will take up this important role in 2018. As the Minister of Finance of a government made up of all the parties on the left of Portuguese politics, Mr Centeno has demonstrated an enormous capacity to balance positions at the heart of Portuguese politics that are very often contradictory. At the same time, he has managed to conciliate the budgetary constraints imposed by the European Union. Mr Centeno’s skills will undoubtedly come to bear in the next few years, particularly in the reform of the Eurozone that is necessary to bring the economies of its member countries closer together.

Portuguese exports continue to enjoy strong growth and, for 2017, it is expected to be around 5%, which implies a growth in market share of 1.9%. This dynamism in exports is being witnessed in both goods and in the provision of services.

In its internal economy, Portugal continues to be recognised as one of the best international tourism destinations. It is consistently top-ranked, winning a record number of international awards in every tourism category. Moreover, the tourism industry has achieved consistent annual two-digit growth. This has been instrumental in developing the country’s trade balance. However, analysts are concerned that structural problems, and fundamental reforms and changes to the Portuguese economy are being postponed.

Importantly, the automotive and renewable energy industries are thriving. However, there have been labour demands and tax issues that could have a slight negative impact on the strong success of these industries which, like tourism, are among the most important components of the Portuguese economy.

Portugal’s unemployment rate fell considerably during 2017 and, at year-end, it stands at 9%. This is comparable with the Eurostat 9.1% average unemployment rate in the EU. However, although falling, the country’s unemployment rate among young people is high, standing at 23.4% compared with 26.7% in 2016.

Portugal’s social, legal and economic developments are acknowledged not only through its capacity to attract tourism and investment, but also by its improved reputation worldwide, from the recent above-average PISA results to ranking 19th in the Social Progress Index, or 25th in the World Bank’s Doing Business guide.

In internal policy, Portugal’s previous centre-right government was successful in leading the country out of the Troika international bailout, having implemented and enacted several legal and economic reforms aimed at boosting the country’s economic, labour and business competitiveness. The current government is managing the fall of four of Portugal’s most important banks and has reformed the state bank CGD. Following the BES resolution, a bridge bank was created with the most important assets. It was held by the BES Resolution Fund and controlled by the Bank of Portugal, and has now been sold to the US fund Lone Star. This deal – the biggest finance/M&A deal of 2017 – was, nevertheless, very controversial. Consequently, there has been a wave of high-value, extremely complex litigation involving the whole process of BES’s resolution, and there may be new cases to come.

The media/telecoms market has also been active, with the recent discussion of the possible acquisition by Portugal Telecom (now controlled by French group Altice) of the television channel TVI. Other market players have challenged this, believing it violates competition rules and would give Portugal Telecom a dominant position. They consider this unacceptable, because the group would have excessive control over quad play and media content.

Portugal has emerged from its crisis with a modern, high-standard dispute resolution system. The country has successfully implemented an e-justice platform (CITIUS), creating a completely paperless justice system. It has also introduced a more flexible and simplified Civil Procedure Code and upgraded its insolvency law (including a chapter 11-style mechanism that has proven to be a solid handrail for struggling businesses). Changes have also been made to cost allocation in judicial proceedings, allowing for a mitigated loser bears all system, which is expected to reduce frivolous claims and the backlog of court cases.

There has been an increase in actions brought by consumers in both environmental and finance/capital markets matters. Although Portuguese legislation on class actions dates back to the end of the last century, consumers have found that the Portuguese system, which is the opt-out type, favours this type of litigation, and NGOs and some law firms have focused on bringing this type of action. The implosion of the largest Portuguese financial group (GES) had a significant impact, because it directly or indirectly affected practically the whole country.

Among those with the greatest impact is the criminal case known as “Operação Marquês” (Operation Marquês) or “Caso Sócrates” (the Sócrates Case). In this case, several leading Portuguese companies, high profile individuals (in the telecommunications market, construction, financial and banking sectors and in the tourism market) and politicians, including the former Portuguese Prime Minister, were investigated and accused of committing the crimes of corruption, money laundering and tax fraud, among others. This is the largest ever criminal case in the history of the Portuguese justice system and it is also extremely demanding, involving complex financing schemes and based on a time-consuming and wide investigation. There have been more than 200 witness interviews and more than 3500 wiretapping transcriptions. Furthermore, the case file has 115 main volumes and 904 annexes (with several volumes each) and approximately 13.5 million computer files.

Directives 2015/849/EU and 2016/2258/EU, which establish measures to combat money laundering and terrorism financing, were partially implemented in 2017 and the innovations (the ones relating to the identification of the beneficial owner in transactions carried out and the concept of "politically exposed persons") will lead to an increase in dispute resolution and criminal cases.

Arbitration is thriving in Portugal. The UNCITRAL model-law inspired Arbitration Act has been in force since 2012 and the assessment of the last five years is very favourable: the arbitration community has been active in creating legal doctrine and domestic soft-laws (including an IBA inspired arbitration code of ethics). More importantly, the last five years have been prolific in pro-arbitration court decisions, notably from the Court of Appeals and Supreme Court, where it is common for judges to include references to international doctrine and case law.

Overall, Arbitration legislation is modern and inspired by the best international practices and trends. There have been some missteps, notably with mandatory arbitration (imposed in certain areas to reduce state courts’ backlog) and with recent procedural obstacles imposed on arbitration with public authorities. Nevertheless, arbitration in Portugal has seen consistent development and the market has responded positively to this evolution, with more and more arbitration cases and practitioners.

In general, dispute resolution practitioners are very well prepared to work for and in an international market, adapting and accommodating their services for clients from different cultural and legal backgrounds. Moreover, the most reputed dispute resolution teams have internationally educated lawyers and offer multi-disciplinary and multi-location teams, with considerable experience and impressive track records in international litigation and arbitration.

Recent years have been kind to dispute resolution practitioners and, fortunately, more and greater challenges lie ahead.

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Senior Statesperson

José Robin de Andrade

Robin de Andrade - Sole Practitioner

From the Chambers Europe guide

Sole practitioner José Robin de Andrade is referred to as an "important name in the arbitration market" and is well reputed for his experience in administrative law and public law.

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Senior Statesperson

Daniel Proença de Carvalho

Uría Menéndez - Proença de Carvalho

From the Chambers Europe guide

Daniel Proença de Carvalho is deemed to be a "very good lawyer with extensive experience and an excellent reputation." He handles all aspects of dispute resolution, including corporate crime disputes and arbitration. Sources also describe him as "a  very good arbitrator."

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Band 1

José Miguel Júdice

PLMJ Lawyers

From the Chambers Europe guide

José Miguel Júdice maintains his top reputation in the field, with interviewees noting that he is "an outstanding lawyer" and "definitely a star." One source states: "When you talk about a great arbitrator or litigator, you think of Júdice."

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Band 1

António Menezes Cordeiro

Universidade de Lisboa

From the Chambers Europe guide

António Menezes Cordeiro of Universidade de Lisboa is highly regarded in arbitration and is frequently appointed in proceedings. He is also known for his academic activity.

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Band 1

Rui Pinto Duarte & Associados

From the Chambers Europe guide

Rui Pinto Duarte of Rui Pinto Duarte & Associados maintains his excellent reputation in the market, with sources describing him as a "good arbitrator."

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Band 1

António Pinto Leite

Morais Leitão, Galvão Teles, Soares da Silva & Associados, SP, RL.

From the Chambers Europe guide

António Pinto Leite represents clients in civil and commercial disputes, handling both litigation and arbitration. Clients note his market reputation, reporting: "He is a heavyweight before the government and before the courts and inspires total confidence," adding that "he is highly skilled, very bright and a fearsome litigator." He has particular expertise in IP and pharmaceutical litigation.

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Band 1

Armindo Ribeiro Mendes

Armindo Ribeiro Mendes

From the Chambers Europe guide

Sole practitioner Armindo Ribeiro Mendes is described as "excellent, very reliable and respected." He is regularly appointed as an arbitrator and is also a professor.

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Band 2

Luís Miguel Cortes Martins

Serra Lopes, Cortes Martins & Associados

From the Chambers Europe guide

Luís Miguel Cortes Martins is well reputed for his experience in both litigation and arbitration, handling civil and commercial disputes. He also acts as an arbitrator. A source reports: "Luís Miguel Cortes Martins is very knowledgeable in several areas of law and commercially acute. A great lawyer to work with." One client describes him as "skilled and available."

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Band 2

Pedro Metello de Nápoles

PLMJ Lawyers

From the Chambers Europe guide

Sources note Pedro Metello de Nápoles's "high profile" in arbitration. He handles matters relating to product liability and construction, acting for clients in regulated sectors on both domestic and international arbitrations.

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