Supreme Court of Justice (Portugal) | Ex Aequo et Bono | Motivation of the Arbitral Award | 22-09-2016 | Case #003

Supreme Court of Justice
Date: 22-09-2016
Case Nr. 660/15.8YRLSB.L1.S1
LINK DGSI

Headlines:
The arbitrators shall not be deemed as deciding a case according to “ex aequo et bono” if they are merely applying a substantive legal rule that calls for the decision to be based on a “equity” criterion.
The arbitral award should be considered to be sufficiently motivated when the tribunal took a clear and perfectly intelligible position on the matter of the existence and meaning of the essential facts articulated by the party.

Summary:
1. The specific regime under Art. 39 of LAV cannot be applied when the arbitral tribunal has to apply a legal rule the fattispecie of which contains a specific reference to the application by the court- by any court that is called upon to apply such rule, state or an arbitral tribunal – of criteria of equity, since, in this type of situation, the appeal to equity does not result from the will of the parties, taken in the exercise of their freedom of choice about the criteria which should govern the composition of the dispute, but by the option of the legislator, who considered it more appropriate to the peculiar character of the event to resolve the dispute according to criteria which goes beyond the strict rule of law.
2. The precise scope of the obligation to state reasons, as regards the decision rendered in the facts, must meet, under functionally adequate terms, to the relevant particularities of the dispute, in which it should be verified if the alleged defects/ nullities have, in view of the facts, the substantial importance likely to determine – in attention to their decisive influence on the composition of the dispute – the burdensome desired effect, translated in the annulment of the arbitral award.
3. In a dispute in which the essential facts alleged as a cause of action are facts fully evidenced by document, not having been produced evidence subject to the free verification by the court, the arbitral award should be considered to be sufficiently motivated when -even though, in its logical structure of argument, it has not formally automated a chapter in which it sets out the facts considered evidenced and not evidenced -if took a clear and perfectly intelligible position on the matter of the existence and meaning of the essential facts articulated by the party, valued according to rules or maxims of experience, analyzing further the objections fundamentally deduced by the Defendant in the reply it presented.
4. In an arbitration proceeding, the party that – faced with an explicit decision of the tribunal about the irrelevance of certain facts and articulated with the exemption of production of the evidentiary means required- no immediate opposition has deducted to such an interlocutory order, conforming its subsequent procedural action with the content of such a decision, without clearly reiterating to the Tribunal the essentiality of evidence produced, the possibility of invoking the annulment of the arbitral award after delivery of the final decision based on reasoning of irrelevant facts or evidence with which it had resigned to is, therefore, lost.

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